Criminal Justice and Courts Bill
Lord Marks of Henley-on-Thames Excerpts(10 years, 1 month ago)
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Lord Marks of Henley-on-Thames (LD)
My Lords, my Amendments 120A and 120B in this group both concern the use of force in secure colleges. Amendment 120B would delete paragraph 10 of Schedule 6 which provides—I say iniquitously—that:
“If authorised to do so by secure college rules, a secure college custody officer may use reasonable force … in carrying out functions”,
which include ensuring good order and discipline on the part of young offenders in custody and attending to their well-being. Amendment 120A would introduce restrictions on the use of force which accord with good practice, with the civilised treatment of young persons in custody and with the European Convention on Human Rights. Furthermore, my amendment accords very closely with the principles set out in the Government’s consultation paper published last week on the proposed secure college rules.
The authorisation of the use of force for the purpose of ensuring good order and discipline—said in the consultation paper to be clarified or modified by the proposed secure college rules—has been the subject of a judgment against the Government in the Court of Appeal in the case of C v Secretary of State for Justice 2008 concerning secure training centres. The clear view of the Joint Committee on Human Rights in relation to the Bill is that provisions authorising the use of force for the purpose of ensuring good order and discipline should be deleted. Those words can go without affecting the implementation of proposals for the sensible and modified use of force, suggested in the consultation paper. What is proposed is not a clarification but a departure—and if it is a departure, good order and discipline should disappear from the legislation altogether.
It is not right for the Government to say that merely because the use of force is authorised by the statute, as circumscribed by the rules, it would be appropriate for the legislation to authorise force for the purpose of enforcing good order and discipline. I believe that the correct conditions for the use of force should be plain in the Bill. There is no reason for not limiting the authorisation in the Bill to accord with what is appropriate. There should be no chance of any misunderstanding or misconception of what is and is not authorised and no internal inconsistency, apparent or real, between the primary and secondary legislation. The Joint Committee on Human Rights considered the Government’s case that there was a distinction to be drawn between the requirements for the Bill and those for the rules—and it rejected it.
On a practical note, as the noble Lord, Lord Ramsbotham, pointed out, the Government’s consultation paper on the secure college rules has only just been released. The Government’s response to the consultation cannot possibly come before Royal Assent for the Bill. That means that unless the Bill is clear about the restrictions that should be imposed on the use of force, the secondary legislation may not properly reflect the will of Parliament, even allowing for the affirmative resolution procedure being applicable to the rules—if it is.
My amendment would make the position clear. The first three purposes for the use of force are uncontroversial. They are to prevent injury to the young person concerned, to prevent injury to others and to prevent serious damage to property. The limitations on the use of force, as contained in the second to fifth conditions of my amendment, are also uncontroversial and in accordance with best practice. They are that force must be used as a last resort only, that the force authorised must be the minimum necessary to achieve its purpose, that it must be applied for the minimum duration necessary to achieve that purpose and that the techniques used should be in accordance with an approved system of restraint. Furthermore, it is important that all those authorised to use force should be properly trained in its application and in techniques of minimum restraint.
However, since Committee, and in the light of the publication of the consultation paper, I have been convinced by the two so-called “scenarios” set out in the consultation paper that there may be a need for force to be authorised also to maintain a safe and stable environment, subject to extra conditions. The first of the two scenarios is where an abusive young person in a secure college disrupts a visiting session for all those in the visiting room, including other detainees, their visitors and families, and simply will not move. The second is where an aggressive young person needs to be moved to protect another young person who is threatened by him, where that other young person is at unusual risk from that aggression. In both these cases I can see that some force may be required to move a detained young person. However, such force as may used in those circumstances—that is, to promote a secure and safe environment—should be limited to circumstances in which a young person poses a risk to the present safety or welfare of another person and should never involve pain-inducing techniques.
These restrictions represent the Government’s view, clearly expressed without reservation in the consultation paper. I simply cannot see why they should not be expressed in the primary legislation, particularly when the secondary legislation will come so late in the day.
The issue of the use of force in secure colleges is serious. We should not forget that in April 2004 at Rainsbrook secure training centre, 15 year-old Gareth Myatt was asphyxiated while being restrained in an approved hold; nor that in August 2004, 14 year-old Adam Rickwood committed suicide at Hassockfield secure training centre after being subject to the so-called “nose distraction technique”. Accordingly, I ask the Government to reconsider their position, to limit the use of force in the Bill in accordance with the principles set out in their consultation paper, and to accept either my amendments or those of the noble Lord, Lord Ramsbotham.
Baroness Finlay of Llandaff (CB)
My Lords, I have added my name to three amendments in this group, and will focus particularly on some of the health aspects. The question of how these colleges will be run becomes critical.
In his response to the previous amendment, the Minister said that there would be assessment of those with acute needs and vulnerabilities. I suggest that the health needs are far greater than has previously been estimated. I declare an interest as president of the BMA. Our report Young Lives Behind Bars is due to be published on 4 November. I have had extensive discussions with my successor, Al Aynsley-Green, who was previously the Children’s Commissioner and who looked at length into the management of offending children. He was particularly struck by the smaller units in Spain, and was clearly persuaded that moving children away from their original area of domicile, to which they would eventually return, was potentially quite harmful because of the disruption to the support for their health and well-being.
Children in the offending group generally have a much higher incidence of serious problems. About 12% are known to have been bereaved of a parent or sibling; that is far higher than the incidence among children in the general population. About 60% have significant speech, language and learning difficulties, 20% to 30% are learning disabled and up to 50% have learning difficulties. Put simply, about one in four has an IQ estimated to be below 70 and over a third have a diagnosed mental health disorder. Over a quarter view drugs and alcohol as “essential” to their well-being.
When the House of Commons Justice Committee examined reports on acquired brain injury, which affects around 10% of the general population, it found that it typically affects between 50% and 80% of the offender population. A relatively small 2012 study, covering 179 male offenders, found that 60% reported some form of brain injury and 40% reported a loss of consciousness, which indicates probably quite severe brain injury.
Lord Marks of Henley-on-Thames
My Lords, I have two amendments in this group—Amendments 117A and 117B. I should have said at the outset today that the amendments in my name are all supported by my noble friends Lady Linklater, Lady Harris and Lord Carlile, who has just spoken. My noble friends would have added their names to the amendments had Monday not been such a busy day.
My first amendment is to the same effect as Amendment 109 in the names of the noble Lords, Lord Ramsbotham and Lord Beecham, and would prevent girls and younger boys—that is, those under 15—being held in secure colleges. The proposal for the first secure college at Glen Parva, just east of Leicester, is, as my noble friend made clear, a pathfinder proposal. It is intended to be experimental. I suggest that it cannot be right to experiment in this way with the lives of girls and young boys in custody. Widespread and deeply felt concerns are unanimously expressed in the many specialist briefings we have received, notably from the Standing Committee for Youth Justice, the Howard League for Penal Reform, the Children’s Rights Alliance for England and the British Medical Association, to whose impending report the noble Baroness, Lady Finlay, referred earlier. All oppose holding girls and younger boys in the same institutions as older boys.
The numbers alone are extremely telling. As we all are now aware, there are only 1,100 offenders in custody in the secure estate. We have made it clear many times how far we regard this as a great achievement of this Government in the field of youth justice—a point which the noble Earl, Lord Listowel, made earlier today. However, only about 45 of those young offenders are girls and, although the relevant numbers may vary, I think that fewer than 40 are under 15.
In the consultation paper on the proposed secure college rules, the Government have made it clear that they propose that there should be a rule to ensure separate accommodation for girls and boys. As my noble friend Lord Carlile just mentioned, the Government have also made it clear that the plans for Glen Parva disclose an intention that girls and younger boys should be housed in separate blocks, segregated from the main body of the secure college by a fence. However, they will share with the older boys the main education and health block at the site.
At the meeting the other day which my noble friend the Minister helpfully held with Peers to discuss secure colleges, a point was made that officials had seen co-education working well within the secure estate—boys and girls working together on, I think, decoration. That may be. However, the risks posed of occasional but very serious incidents occurring in such circumstances are severe. Furthermore, I do not believe that the Government have taken fully into account the inevitable feelings of intimidation and isolation likely to be felt by a small number of girls in an institution containing a large number of older boys. They will be a tiny minority at best, and the same goes for vulnerable younger boys. Nor should one forget that a large proportion of the girls have been victims of sexual abuse by older men. It is entirely wrong, I suggest, to force through this mixed education experiment. I believe that the experiment itself is unacceptable in this regard.
Places are available in secure children’s homes for this very small group of children. My noble friend and the noble Lord, Lord Beecham, speaking for the Opposition, were in rare accord in that both spoke well of secure children’s homes and of their future. The Government assure us that they intend to keep open secure children’s homes. They are small and provide a nurturing environment. Many provide a highly successful educational content. During the Recess I visited Clayfields House, a secure children’s home in Nottinghamshire. That home has secured a remarkable success with children in avoiding reconviction upon release. At Clayfields they provide not only education, achieving truly remarkable exam results in very short periods of time, but also effective vocational training, arranged by a local private sector employer, in motor mechanics and construction trades. It is a facility shared by the secure children’s home with local schools and others.
I fully appreciate that secure children’s homes are expensive, but we are talking here about housing a very small number of children in an appropriate environment. We are talking about turning around the lives of a group of extremely damaged children. If we do not spend now the resources necessary to ensure that they are held in suitable surroundings and given the opportunities afforded by a period of personal attention and tightly focused education, helping them towards gaining employment later, then we face the far greater financial burden of considerable extra expenditure in the future as they spend their lives in and out of the criminal justice system and dependent on the public purse for social services and welfare benefits.
My second amendment in this group is similar in terms to one that I tabled in Committee, which was kindly mentioned with approval by the noble Lord, Lord Ramsbotham. This amendment sets out the principles that should underlie the foundation of any secure educational establishment. I say again that we are completely in support of the Government’s intention to introduce more and better education for young offenders in custody. The present educational services in Feltham and other young offender institutions are inadequate and ineffective. The lack of education and training for the world of work is one reason for the appallingly high reoffending rates for young people. However, we should not lose sight of the fact that young offenders who are in custody are, for the most part, deeply troubled young people. Very often, their contact with the education system prior to their being sentenced has been limited at best.
The evidence convinces me that the best way in which to provide education for young offenders and improve their chances of rehabilitation is to provide establishments that are small enough to guarantee individual attention from staff; are easy to visit for their families; are designed to assist rather than impede continuity of supervision following release; and offer education and other facilities that are sufficiently focused and supportive to ensure that the different needs of individual offenders with different problems, and who are sentenced and due to be released at different times, can be suitably met.
In this regard, I have added to my Committee stage amendment the need to ensure adequate mental and physical healthcare facilities for young offenders. The need for such extra attention to these issues has been highlighted by the BMA briefing on its impending report on these issues, and my noble friend Lord Carlile has spoken about that. The BMA points out, tellingly, that the state takes over responsibility for these offenders precisely at the point when their needs are most acute. The BMA’s support for the principles of these amendments is only one area of support among many. I again ask the Government to reconsider their proposals, to look at the principles advocated by all those who have done years of research upon this subject, to think again about the Glen Parva proposal and to reject the idea that girls and younger males under 15 should be held in detention in that institution.
The Earl of Listowel
My Lords, it seems wiser not to keep girls in this proposed new pathfinder institution, in part because, as I said in Committee, some of them will be pregnant, giving birth or just have given birth. If they are to be housed there in those conditions, the utmost consideration needs to be given to their needs because, as a society, we are becoming increasingly aware that the attachment that a mother makes to an infant is vital to that child’s later life. Indeed, I am sure that it is often because their mothers were in poverty, alcoholic and unable to form a bond with their child that these young women have followed this course in life. Whatever health provision is offered at the institution to these girls—these mothers—their perinatal needs should be considered.
My noble friend makes an extremely important point about access to psychotherapy for staff members. So often that can be seen as a luxury but, given the relationships that members of staff make with these troubled children, such access is the absolute key in getting the best behaviour from them and avoiding the use of force. If staff can build a good relationship with these troubled young people, force will not be necessary and can be avoided. Staff need expert support in thinking about these children and the relationships they form with them. I therefore thoroughly endorse my noble friend’s point.
Finally, the Children’s Commissioner has produced important reports about the sexual exploitation of girls by gangs. Thought needs to be given to the implication for girls who are placed in establishments where large numbers of gang members may be around. I am thinking of the case of a 14 year-old girl who was raped by a gang member, became pregnant and was very concerned to keep her anonymity. It should be possible to keep girls’ anonymity so that a gang member cannot pass information back to another gang member and say, “The girl you knew is now pregnant”, and so on. That can be a difficult scenario.
Criminal Justice and Courts Bill
Lord Marks of Henley-on-Thames Excerpts(10 years, 1 month ago)
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The Earl of Listowel (CB)
The amendment stands in my name and in that of the noble Lord, Lord Carlile of Berriew. I am afraid that it is a little technical, and I may have to speak for seven or eight minutes. I apologise for that, and I will try to be as quick as possible at this hour.
Amendment 122A proposes a solution to the problems that we face concerning anonymity for children in court proceedings. It creates a default anonymity into adulthood, and allows the court to remove this where it considers necessary. I welcome the amendments that the Government have tabled in this group, but I feel that they do not go quite far enough, and I hope to persuade your Lordships, and the Minister, that perhaps he might like to look at this area again before Third Reading and table something to meet some of the concerns that I, along with the noble Lord, Lord Carlile, are about to raise.
Since the Children and Young Persons Act was passed in 1933, children in court have been entitled to remain anonymous, whether they are defendants, victims or witnesses, and Sections 39 and 49 of that Act impose different reporting restrictions, depending on whether a case is in the youth court or a different court. These prevent information being published that could lead to the identification of a child. However, whether those restrictions must be respected after a child turns 18, when proceedings have been concluded before then, is a complex question, which seems to have caused great confusion.
So far as I am aware, media organisations have generally respected reporting restrictions even after a child has reached 18, where the proceedings had concluded before then. So children who had historically been involved in court proceedings have not been named in practice, even after they have reached adulthood, whether they were victims, witnesses or defendants.
However, in a recent judgment, Lord Justice Leveson interpreted a Section 39 order to expire once a child reaches 18, as there is nothing specifically stating that anonymity should extend into adulthood. The same analysis would apply to Section 49. The case, which is being appealed, has serious consequences. First, the implication of the judgment is that criminal courts have no power to provide child victims, witnesses or defendants with anonymity into adulthood. As Lord Justice Leveson himself pointed out, this leaves child victims and witnesses with less protection than vulnerable adult victims and witnesses, who can be granted anonymity. Secondly, because the judgment has drawn attention to the law, it is likely that we will see children who were historically involved in court proceedings being identified by the media after they reach 18.
The question that Parliament now has to answer is what to do about this state of affairs. In Committee we debated one solution to the problem, and amendments were tabled that would have set it in statute that Section 39 orders and protection under section 49 would last for a child’s whole life, subject to applications to the contrary. The Government said that there were technical flaws with the amendments, and promised to return to the issue on Report. Last week the Minister, the noble Lord, Lord Faulks, duly tabled Amendment 139, which sets out an alternative. It would create an entirely new order, which could provide child victims and witnesses with anonymity into adulthood—but only if they can show that failure to do so would diminish the child’s evidence or co-operation in the case. Defendants cannot be the subject of the new order at all.
There are two serious problems with the Government’s amendment. First, it introduces a high test, which victims and witnesses must pass if they are to access this anonymity; that is, the test of diminished evidence and co-operation. Sections 39 and 49 of the Children and Young Persons Act do not require a child to meet any kind of test to be granted anonymity. As I have said, prior to the Leveson judgment, Sections 39 and 49 seem generally to have been respected by media organisations after a child turned 18. Why should it now be necessary for victims and witnesses to meet this test, before being granted anonymity? I feel it is unhelpful. Coming forward as a victim or a witness takes real courage, particularly as a child. Making anonymity harder to access is unlikely to encourage anyone to come forward.
My second concern with the Government’s proposal is the distinction that it makes between victims, witnesses and child defendants, and the fact that it excludes children who are defendants from the new anonymity orders. Their amendment would leave criminal courts with no means to provide a child defendant with protection after they turn 18. The only way for a child defendant to remain anonymous after the age of 18 would be for a civil injunction to be sought. This is unsatisfactory.
I see that the rest of my briefing paper has now disappeared from my iPad, so I shall refresh it and hope that the briefing will return. I may have to ask the noble Lord, Lord Carlile, to take my place for a moment. I have it back now; there is a little lacuna in it, but I do have some more of it here. I apologise for the break, my Lords.
The Government have made clear that they consider reducing reoffending a priority, particularly among children. This is a laudable aim, which I am sure that we all fully support. I believe that achieving that aim will be hindered by refusing anonymity to child defendants as soon as they turn 18. My Amendment 122A puts forward an alternative solution to the problem— one that seeks to overcome the difficulties with the Government’s proposals. Like the government amendment, my amendment introduces a new order that would provide all children in court proceedings with anonymity into adulthood, unless an application were made to vary it. It therefore reverses the burden.
My amendment would be available to child victims, witnesses and defendants, and does not contain the high-threshold test included in the government amendment. Like the government amendment, my amendment would still require the court, when making an order, to consider,
“the public interest in avoiding the imposition of a substantial and unreasonable restriction on the reporting of the proceedings”.
It cannot therefore be said to constitute an undue interference with open justice or press freedom.
We should not underestimate the impact of this matter on child victims, witnesses and defendants, or on the operation of the youth justice system itself. I very much hope that, for the reasons that I have outlined, the Government will agree that my proposed solution is a more productive way forward, and accept my amendment.
I now turn briefly to government amendments 140 and 141, which also relate to anonymity for children in court. I welcome the principle of ensuring that reporting restrictions cover social media, which I understand is the intention of those two amendments. I note that Amendment 140 would prevent Section 39 of the Children and Young Persons Act applying to proceedings in criminal courts. Can the Government explain why this provision is necessary? I imagine that they intend to bring Section 45 of the Youth Justice and Criminal Evidence Act 1999 into force to replace Section 39. Can the Minister confirm whether that is the case, and if so, give us an indication of when they plan to bring Section 45 into force? If I am speaking too quickly, I am very happy to repeat anything that I have just said.
The government amendments do not mention Section 49 of the Children and Young Persons Act 1933, so far as I can see. Section 49 provides default anonymity for proceedings in the youth court. I am anxious that this is preserved. Will the Government reassure us that they have no plans to alter the default anonymity in the youth court and clarify whether their amendments extend Section 49 so that it explicitly covers social media?
To go back briefly over what I have said, I am concerned that when a person who has committed a crime in his childhood turns 18 and perhaps goes into higher education or university or starts a career, he may find that the facts of his past emerge, which may cause great impediment to achieving success in his career and seriously hinder his rehabilitation. I would appreciate reassurance that the Government have considered that point. I look forward to hearing the Government’s position on these matters. I beg to move.
Lord Marks of Henley-on-Thames (LD)
My Lords, in this group I will speak only to Amendment 122AA standing in my name. This amendment deals with preserving the anonymity of children who are subject to a criminal investigation but who have not yet been charged with any offence. The lack of anonymity for such children is an anomaly in the law as they are protected from being named once they are charged, as the noble Earl, Lord Listowel, has just explained.
This anomaly was to be addressed by Section 44 of the Youth Justice and Criminal Evidence Act 1999, which would apply to reporting in respect of persons under 18 after a criminal investigation into an alleged offence has begun. However, that section has not been brought into force. My amendment would amend the section to add its application to sound and television broadcasts or public electronic communications networks and would bring it into force on the passing of the Bill.
The undesirability of the present position was graphically illustrated when the Sun published the name of the boy later to be accused of murdering the Leeds schoolteacher Ann Maguire before he was charged. It is, of course, now illegal to name him as he is a party to court proceedings. It is obvious that if a child is named pre-charge, that undermines any anonymity later afforded by court proceedings.
In Committee, my noble friend the Minister said that,
“in the light of the significant changes to press self-regulation recently introduced by the Government … Both the industry and the Government agree that independent self-regulation is the way forward. … We should therefore give this new approach a chance to succeed”.—[Official Report, 23/7/14; col. 1198.]
I regret that I do not share my noble friend’s optimism as to the present effectiveness of self-regulation. Furthermore, even if press self-regulation may work for newspapers in future, it has no effect on preventing pre-charge publication in the social media.
This is, of course, a probing amendment. It has been agreed that Section 44 will not in fact be brought into force unless it is debated by both Houses and subject to affirmative resolution. Nevertheless, I would ask my noble friend to make clear in this debate whether he agrees that pre-charge anonymity ought to be guaranteed—and, if so, will he please say how he proposes that it should be achieved?
Lord Marks of Henley-on-Thames
My Lords, my amendments in this group, which largely repeat the amendments I put down in Committee, have a simple purpose, which is to permit the court a discretion as to whether or not to impose the criminal courts charge. Because they largely repeat earlier amendments, I will be brief.
Under the new Section 21A proposed in Clause 46, the court has no discretion but to order a person over 18 convicted of an offence that is not excluded by regulations to pay the charge. Since Committee, I have moved towards the Government’s position by suggesting in these amendments that a relevant court must “consider ordering” that the criminal courts charge be paid, so that while they would have a discretion, the courts would receive a clear message that such a charge should be expected in the generality of cases, and the legislation would act as an indication as to how the discretion should generally be exercised.
However, I maintain the general position I took in Committee in suggesting that it would be completely senseless to make an order that a criminal courts charge be paid in every case. There would be many cases heard every day in criminal courts where orders were made and everyone in the court would know that there was not the slightest chance of the charges ever being paid. That would make a nonsense of the provisions, I suggest, and would risk bringing the courts into disrepute. Relying on a later power to remit the charge in such cases is unnecessarily burdensome on the courts and wasteful of everybody’s time.
Furthermore, I am concerned that imposing a charge upon offenders who are already without means and often in serious personal and financial difficulties is likely to reduce their chances of rehabilitation. The outstanding charge may have a significant impact on their ability to secure work and to meet necessary expenses, particularly where they need credit in order to do so and the outstanding charge will impede their obtaining such credit. For those reasons, I suggest that the imposition of a criminal courts charge needs to be discretionary.
I further suggest that it is not sensible to deny the court any discretion as to the level of the charge to be imposed. That is the reason for my Amendment 125D. New Section 21C would require the amount of the charge to be the amount specified in regulations. My amendment would simply make that amount a maximum. There will be cases where offenders of limited means will wish, or at least be prepared, to meet their obligations and pay the charge if they can afford it. I suggest that a sensible way of dealing with such offenders is for the court to set the charge at a level the offenders can afford, rather than charging them the full amount specified in the regulations and forcing them to come back on an application to remit the charge at a later date or, worse, leading them to the position where they do not pay anything. I beg to move.
Lord Ponsonby of Shulbrede
My Lords, I shall speak to my amendments in this group. I support 100% what the noble Lord, Lord Marks, has said. I moved similar amendments in Committee and the amendments that I am putting forward on Report are by way of a compromise. I regard my position as a fallback position and the position of the noble Lord, Lord Marks, as the primary position on judicial discretion.
My Amendments 125, 126 and 127 would allow the Criminal Procedure Rule Committee to specify the circumstances in which the charge should not be imposed. The idea behind this group of amendments is that it would provide an opportunity for the CPRC to ensure appropriate judicial discretion, while providing greater clarity than a more permissive wording, which is what the noble Lord, Lord Marks, is seeking. Of course, the CPRC operates independently of government.
I also thank the Minister’s officials for clarifying to me in the past few days that the court’s charge can be treated the same way as the victim surcharge under Section 135 of the Magistrates’ Court Act 1980, which gives magistrates a general power to order a brief period of detention when a defendant is in default of any fine imposed by the court, particularly when that defendant is homeless and cannot pay. This, as any magistrate or lawyer will know, is a regular occurrence in London magistrates’ courts. This is the only practical way of dealing with this type of case.
I conclude on a wider point, by reiterating some of the points that the noble Lord, Lord Marks, has made. Notwithstanding the people who are homeless and literally do not have any money in their pockets, there are many other people we regularly see in courts who are on benefits, perhaps because of disabilities. Any additional cost that is given to them will remain unpaid and accrue as a greater debt. Every day of the court’s week, magistrates and judges impose fines where they have discretion and come up with appropriate fines that they believe are realistic. They put in place tough measures, namely collection orders, to recover those fines, so magistrates and judges are well able to exercise discretion, and they should be given the opportunity to do so over the court’s charge.
Lord Faulks
My Lords, I am grateful for the speeches made by my noble friend Lord Marks and the noble Lord, Lord Ponsonby, in this group of amendments concerning the criminal courts charge. There was lengthy debate in Committee, and I responded at some length, so I hope they will not consider it any disrespect to their arguments if I summarise the Government’s position fairly briefly.
The question of discretion has arisen once more. My noble friend Lord Marks seeks to vary his original suggestion by fettering the discretion somewhat but nevertheless importing a degree of discretion, as was discussed at length. It is the Government’s position that that is inappropriate.
The point was made in Committee and this evening that many noble Lords consider the charge unfair in the case of poor offenders. The Government believe that it is right that all adult offenders, whatever their means, pay towards the cost of running the courts, alleviating the burden on the taxpayer. I know that noble Lords who are concerned about this area will have seen the figures published on the website before Committee stage about the charges by band. They are quite modest, but it is nevertheless hoped that they will reflect some compensation to the country for defendants who use the courts because they have committed offences. As I said previously, offenders can apply to vary payment rates if their financial circumstances change. In addition, offenders who comply with their payment terms and who do not reoffend can have their charge remitted after a specified period. The imposition of this charge is not designed to be a punishment, so confusing it with the various discretionary powers that the court has rather misses the point.
Amendment 125D would stipulate that the charge cannot exceed the amount specified by the Lord Chancellor in the regulations. The Bill is drafted so that a charge to be paid is of an amount specified by the Lord Chancellor, so I am sure that my noble friend Lord Marks will agree that this leaves no room for charges exceeding the amount specified to be imposed, which should mean that the amendment is unnecessary.
Amendment 126A would omit the requirement for a specified period of time to have passed before the court charge debt can be written off. If accepted, it would provide the court with wide discretion to remit the charge early, as and when it sees fit. The clause as it currently stands has the benefit of allowing a court to remit the charge where the offender has taken all reasonable steps to pay and does not reoffend. This is a powerful incentive for offenders to repay the charge and refrain from reoffending, ensuring that a specified period is a fundamental feature of the remission provisions—a key aspect of this policy which I hope the House will not overlook.
Amendment 125E seeks to specify that where a charge can be remitted it can include the remission of interest. I respectfully point out to my noble friend Lord Marks that Clause 42 gives the magistrates’ court power to remit the charge under particular circumstances. It is intended that this provision be used where an offender has paid accordingly and has not gone on to reoffend. It can also be remitted where the debt is unenforceable.
New Section 21D(4) of the Prosecution of Offences Act 1985, inserted by Clause 46, makes it clear that interest payable under the regulations is to be treated as part of the charge. It therefore follows that any remission of the charge would comprise the whole debt, including the interest. I hope that reassures the House that the Government have carefully considered this provision and will satisfy my noble friend such that he might not press his amendment.
I stress, however, that this is a novel scheme and the Government have already agreed to review the policy after three years. Of course, we will monitor its impact closely until then. The Lord Chancellor must repeal the provisions if he considers it appropriate, having regard to that review. I am sure that the noble Lord will agree that this further safeguard demonstrates the Government’s commitment to getting this right.
I turn finally to the Criminal Procedure Rules and the amendments tabled by the noble Lords, Lord Ponsonby and Lord Beecham, which seek to widen the conditions that must be met for the courts charge to be remitted. The amendments would broaden the court’s power to such an extent that the charge could be remitted also in cases specified in those rules.
The effect of the amendments would be to confer on the Criminal Procedure Rule Committee a jurisdictional power by enabling it to set rules concerning substantive legal matters and by giving it a significant level of discretion to prescribe the circumstances in which the charge could be remitted. This would of course contravene the Government’s position that it is an administrative charge.
If I understand the noble Lord’s arguments correctly, he is seeking to afford the committee the power to determine the instances in which the criminal court charges might be remitted, although he does not give a clear indication as to which cases would be specified in the rules to which discretion may be applied.
The Bill as it stands already allows for the courts to cancel the charge, as I have indicated, but we submit that it is inappropriate to use these rules as a means to set the criteria for remission. I am sure noble Lords are aware that the function of the Criminal Procedure Rules is to govern the practice and procedure of the criminal courts. The responsibility of the Criminal Procedure Rule Committee is to make those rules. With great respect, this amendment would afford that committee a power beyond its current jurisdiction. The choice of criteria for remission should be one for Parliament itself. I fear I cannot agree that it is appropriate for this power to be attributed to the committee.
I understand the noble Lord’s concern about the impact of the charge on particular offenders whom he encounters in his capacity as a magistrate. The Government are aware of that risk and are monitoring any adverse impacts. I also confirm what the noble Lord said about his discussion with my officials in relation to Section 135 of the Magistrates’ Courts Act 1980. I hope that I have satisfied the noble Lord and that he will withdraw his amendment.
Lord Marks of Henley-on-Thames
My Lords, I will of course seek leave to withdraw the amendment in a moment. Very briefly, the point of tabling further amendments on Report, following the debate in Committee, which move slightly towards the Government’s position, was in the hope that the Government might have considered the debate and moved towards our position. So I make no apology for repeating the position that I took in Committee.
I also want to make it clear that I think all of us in this House agree with the general principles stated by my noble friend that there is a very strong case for ordering defendants who can pay a criminal courts charge on conviction so to pay it. Our concern is with those who plainly cannot pay it or cannot pay all of it. I entirely accept and appreciate the support of the noble Lord, Lord Ponsonby, for my position. However, I am not sure that the traditional punishment meted out to those who are drunk and brought before the magistrates’ court of £1 or a day—that kind of formulation of giving a period of custody in default of payment right at the outset—will mitigate the mischief at which my amendments are aimed.
I shall also simply say two further things. First, the point of my Amendment 125D and the words “no greater than” is to make sure that the amount specified in the regulations is the maximum that can be charged, but that the court would have the power to impose a lesser charge. I believe that the amendment, if implemented, would have achieved that end.
Finally, I suspect that when it comes to the review of the operation of this charge in three years’ time, Parliament and the Government may well find that the procedure for remitting the charge and having hearings as to whether or not a charge should be cancelled at a later date is unduly unwieldy, cumbersome and expensive. With those observations, I beg leave to withdraw my amendment.
Lord Hope of Craighead (CB)
My Lords, I am very much in sympathy with the points made by the noble Lord, Lord Hunt of Wirral. He was inviting the Minister, I think, to examine the entire clause to see whether what he is proposing fits in with all of it. I draw the Minister’s attention to just one point. Clause 49(3) states:
“The duty under subsection (2)”—
which is one to dismiss a primary claim—
“includes the dismissal of any element of the primary claim in respect of which the claimant has not been dishonest”.
It is conceivable that there could be elements in the broad formula which the noble Lord has proposed in Amendment 128 which would not be tainted by the dishonesty. I do not believe that it is his intention that that should actually be struck out. If the Minister and his advisers are considering the wording, one point to look at with care, I suggest, is whether some allowance should be made for the possibility that there are claims within claims which are not tainted by the dishonesty—which of course everybody would like to see visited with the sanction that Clause 49 is designed to impose.
Lord Marks of Henley-on-Thames
My Lords, in Committee I moved an amendment suggesting that the duty to dismiss personal injury claims tainted by fundamental dishonesty should be a discretionary power rather than a duty. In other words, courts should be entitled to dismiss such claims, but not bound to do so. I also suggested that there should be a power to reduce such claims in appropriate cases rather than to dismiss them altogether, which is a view that I have long held.
I recognise now, as I recognised then, that the Government are concerned to tackle the challenge posed by the proliferation of thoroughly dishonest, largely small, personal injury claims following accidents, particularly motor accidents. I agree that this is a serious problem that needs to be met head on. I was particularly impressed in Committee by the speech of my noble friend Lord Hunt of Wirral on the issue. He speaks of course with a wealth of experience of cases in this area and of the challenges faced by the insurance industry in dealing with them. He spoke then of the evil of the proliferation of whiplash claims. I agree with his Amendment 128 today that any claim included in a personal injury claim should be caught by the section. In answer to the point made by the noble and learned Lord, Lord Hope, I say the section as amended by my amendments—because the problem at the moment is that the whole claim has to be dismissed. That is one of the problems that is addressed by my amendments.
I have in this case modified my amendment substantially for Report in the light of the debate in Committee. My Amendment 128B draws a sharp distinction between smaller claims and more substantial ones. I recognise that the problem that the Government seek to address—the multiplication of fundamentally dishonest claims—arises mostly in the case of smaller claims. My new amendment today would effectively maintain the Government’s position in respect of any claim worth less than £25,000 overall.
However, I maintain my concerns in respect of more substantial personal injury claims. I have conducted over the years a great many claims in this category and I refer to my interest in the register as a practising barrister in this regard. Unfortunately, many of these substantial claims are also tainted by fundamental dishonesty. In Committee I gave the example, hypothetical but not untypical, of a very substantial claim for damages for personal injuries following a serious accident. Out of a total claim value of about £6 million, one element—or head of claim—was a claim for loss of earnings of about £500,000. That head of claim was fundamentally dishonest, because the claimant had suppressed a notice of redundancy given to him before the accident so that the substantial loss of earnings claimed would in fact have been sustained had the accident not occurred. It was therefore, of course, irrecoverable from the defendant.
Nevertheless, the claimant had a valid care claim—a different head of claim, untainted by dishonesty, to take the point of the noble and learned Lord, Lord Hope—worth about £4 million. That claim would have covered the cost of his full-time residential care, with carers, for the rest of his life. The nub of this point is that he himself would not suffer injustice if his whole care claim was dismissed because his care would be paid for by the state in any event. The exception in the clause covering the case—that the claimant would suffer substantial injustice—would therefore not bite.
However, it would certainly be wrong for his entire claim to be dismissed. The right course would be to reduce his claim. Obviously, his loss of earnings claim would be dismissed because that would fail in any event, but the court might also decide to reduce other elements of his damages as well—notably his personal award, which is not tied to specific loss, for general damages, pain, suffering and loss of amenity—to mark the dishonesty. However, without the discretion to reduce the claim instead of dismissing it altogether, the outcome would be that the entire claim would be dismissed—all its heads—and in this example that would cost the state a great deal of money that the negligent defender’s insurers ought to be paying.
I suggest that the clear way to resolve this difficulty is for there to be a power in larger cases either to dismiss a claim tainted by fundamental dishonesty or to reduce the award of damages in such a way as the court deems just. Judges have plenty of experience in dealing with dishonest claims. They can tell what is fundamental dishonesty and what is not, and they can tell what is just and what is not. As one might expect, judges generally dislike dishonest claims intensely and can be trusted to deal with them with appropriate toughness. I invite the Government to agree that mandating courts to dismiss small claims, unless to do so would cause the claimant substantial injustice, but leaving judges free to deal appropriately with larger cases, would be a sensible and proportionate way to approach this issue.
I hope that my noble friend might return at Third Reading, after considering this issue along the lines that I have mentioned, with a solution. I should say that I will not press Amendment 128F in respect of subsection (5), because a combination of the amendment in the name of the noble Lord, Lord Faulks, and the amendment moved by my noble friend Lord Hunt would meet the requirements of orders to cost. That said, I invite my noble friend and the Government to consider this further.
Lord Kennedy of Southwark (Lab)
My Lords, the noble Lord, Lord Hunt of Wirral, raised some very important issues, and mentioned claims management companies. Since I came to the House I have raised the issue many times; the more dubious end of the industry is a problem. I know that he mentioned it before, but the claims management regulation unit at the MoJ, run by Mr Kevin Roussell, does a good job on that. I pay tribute to the work that it does and say to the Government that if it had a few more resources it would be able to do an even better job. Pointless, vexatious claims waste our time and cost us money, and the more help we can give to that unit at the MoJ, the better.
Criminal Justice and Courts Bill
Lord Marks of Henley-on-Thames Excerpts(10 years, 1 month ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
“(c) include provision for the court to decline to make an electronic monitoring condition in any case where the court considers that it would be unjust, unnecessary or impractical to do so.”
Lord Marks of Henley-on-Thames (LD)
My Lords, Amendment 6 is an extremely modest amendment. Your Lordships will appreciate that Clause 7(3) permits the Secretary of State to make electronic monitoring conditions compulsory. I spoke on this issue in Committee, arguing that the imposition of an electronic monitoring condition should remain a matter for the court. I argued that the power to impose such a condition on a prisoner’s release on licence was, indeed, a desirable and sensible power, and that such a condition should be imposed where appropriate. However, I also argued that there may be circumstances in which it would be impractical or unnecessary to impose such a condition, for example where an offender was disabled or was to be hospitalised upon release.
In response to my amendment, my noble friend Lord Ahmad said that he was aware of the concerns that physical or mental health issues or possible practical problems might make compulsory electronic monitoring conditions unsuitable. My noble friend also gave, as an example of impracticality, a case where arrangements could not be made for recharging the battery in the tag—he was right to do so and there may be many other examples of impracticality. However, my noble friend contended that there was flexibility in the order-making power under the subsection that would enable these cases to be taken into account. I am concerned about that. My noble friend said that the Secretary of State would be able to,
“provide for cases in which the compulsory condition should not apply”.—[Official Report, 14/7/14; col. 402.]
I regret that I do not read the clause in that way. While there would, under subsection (3)(3)(b), be power to make provision in relation to persons selected on the basis of criteria specified in the order or on a sampling basis, that is not the same as enabling cases to be dealt with on a case-by-case basis.
The amendment would, quite simply, enable the Secretary of State to incorporate into the order a small element of judicial discretion, whereby, in a given case, a court could decline to make an electronic monitoring condition if it considered it would be unjust, unnecessary or impractical to do so. It would be for the Secretary of State to decide whether to incorporate such provision as I suggest in the order he makes. For that reason, I reiterate that my amendment is modest and limited. It is intended to be helpful. I beg to move.
Lord Ponsonby of Shulbrede
My Lords, I want to speak in favour of the amendment of the noble Lord, Lord Marks, but to slightly widen the point that he made. It is my understanding that if one gives a suspended sentence when sentencing and includes, as a part of that, a curfew, then the court is obliged to provide that the curfew is tagged. Very often that is appropriate, but not always. I have certainly dealt with cases where it was totally unnecessary to tag the offenders concerned and it just added to the cost of the whole sentence. There should be judicial discretion when giving tagged curfews in suspended sentences.
Lord Faulks
I hope to come to that in a moment.
As was explained in Committee, the code will not only encourage the use and enforcement of contractual provisions to ensure that current FoI obligations about information held on a contracting authority’s behalf are met but will promote the voluntary provision of other information where this would help to provide a more meaningful response to requests. The success of this approach will, as was also made clear in Committee, be monitored by both the Government and the Information Commissioner. If it does not achieve sufficient transparency, we will consider what other steps, including the possible formal extension of FoI to contractors, are required. Once the code of practice is issued, it is important that we give it the opportunity to prove its worth before deciding whether further measures are necessary. I therefore invite noble Lords not to press Amendments 7 and 120.
We also debated Amendment 8 in Committee, and I sought then to explain why it is not appropriate. We agree that the code of practice is a necessary and important document. It is intended to make sure that the necessary safeguards are in place for the proper management of the data gathered by electronic monitoring conditions. It will, of course, comply with the Data Protection Act. However, it is for operational purposes and will not introduce any new legal requirements. That is why we do not propose to agree its content through parliamentary procedure.
I should remind the House that it passed the provisions in the Crime and Courts Act 2013 that inserted new Section 215A into the Criminal Justice Act 2003. This also provides for a code of practice relating to the processing of data from electronic monitoring and is linked to provisions allowing location monitoring of offenders as a community requirement. This provision was approved by Parliament with no requirement for the code to be subject to affirmative secondary legislation. The amendment would, therefore, be inconsistent with the provisions already approved for a code of practice.
I should perhaps add a little more about the scrutiny that has been undertaken in relation to electronic monitoring and the approach to contract management that has informed the new contracts. Within the MoJ, and specific to electronic monitoring, this has meant the new contracts being drafted and let with key elements such as open-book accounting being critical. Accountability for contract management will be much clearer, with contract owners called regularly to account for their detailed knowledge of the contracts and their operational assurance that services are properly assured and audited.
On the amendment, I can only reiterate the assurances that I have given previously. We have committed to consultation on the code of practice, which will include consulting the Information Commissioner. I also confirm that the code of practice will be published. I do not have, at the moment, a specific date for publication of the code of practice but we hope to issue guidance to the standard contract clause by the end of 2014. If I receive further information on the probable date for the code of practice, I of course undertake to inform the House, and certainly the noble Lord, Lord Beecham.
I hope that I have satisfied the House on these issues of concern. Electronic monitoring would naturally be a matter of concern, but it is also a valuable tool in the detection and prevention of crime. I therefore ask the noble Lord to withdraw his amendment.
Lord Marks of Henley-on-Thames
My Lords, in relation to Amendment 6, I accept my noble friend’s point that it is for the Secretary of State rather than the court to deal with electronic monitoring conditions. He is right about that. He was also right to recognise the concerns as to whether such conditions could be imposed inappropriately or where unnecessary, unjust or impractical.
I understand him to have given an assurance that he understands that the power to make an order which makes,
“provision by reference to whether a person specified in the order is satisfied of a matter”,
enables the order to ensure that the person is satisfied that it would not be impractical to impose such an electronic monitoring condition. On that basis, I join in his observation that it is not entirely clear, even though it may be clear from the Explanatory Notes, which of course form no part of the statute. Those who are left with the difficult task of unravelling this arcane piece of drafting will no doubt be able to read the report of that assurance. On that basis, I beg leave to withdraw this amendment.
Lord Marks of Henley-on-Thames
My Lords, our amendments in this group on Clause 27 regarding compulsory custodial sentences for second offences of possession of a knife would have three effects. The first, and by far the most important, would be to exclude 16 and 17 year-olds from the ambit of the compulsory custodial sentences proposed in the clause. The second would be to ensure that the circumstances the court might take into account in deciding not to impose a custodial sentence would include the likely impact of the sentence on the offender. The third would be to ensure that those circumstances would include not only the circumstances of the offence for which the offender was being sentenced at the time he came before the court, but also the circumstances of the previous conviction that brought him or her within ambit of the clause in the first place.
I turn first to the amendments excluding 16 and 17 year-olds from the operation of the compulsory sentence regime. Your Lordships will no doubt remember that in Committee this House declined to remove the whole of this clause under my stand part debate, but by a fairly narrow margin, considering that the Conservative and Labour parties whipped their Back-Benchers in favour of the retention of the clause, notwithstanding that the Government Front Bench abstained. It was nevertheless abundantly clear from the debate that there was a very strong feeling in this House that compulsory sentences for children were undesirable and damaging to the children concerned.
I should remind your Lordships that this clause was not and is not government policy. It was introduced in the House of Commons by the Conservative Back-Bencher my honourable friend Mr Nick de Bois, and carried in that House. That is how it came to be included in this Bill, notwithstanding the opposition of the Liberal Democrat Benches.
On Report, the House has before it in the next group amendments in the names of the noble Baronesses, Lady Browning and Lady Berridge, which would oblige courts to have regard to their duty under Section 44 of the Children and Young Persons Act 1933 when implementing this clause. That would mean that a court would have to have regard in every case to,
“the welfare of the child or young person”,
and would be required “in a proper case” to,
“take steps for removing him from undesirable surroundings and for securing that proper provision is made for his education and training”.
Baroness Berridge (Con)
My Lords, I shall speak briefly on the amendment proposed by my noble friend Lord Marks. First, on a point of agreement, he will have seen that under Amendment 65 in my name and that of my noble friend Lady Browning it would of course be possible for the court to take into account the circumstances of the previous offence that was what I will call the “trigger” for this provision. Those circumstances could be taken into account.
With regard to the second point, we outlined in Committee that under new Section (6B) in Clause 27(4) there is a judicial discretion not to impose a mandatory sentence unless there are particular circumstances that relate to the offence, the offender or the previous offence and it would be unjust to do so in the circumstances. I would be interested to know the Minister’s opinion on whether the likely impact on the child of the offence would be included in the consideration of the welfare of the child, which is part of the other amendments that my noble friend and I have tabled.
In relation to a third point, the imposition of a mandatory requirement on young people aged 16 and 17—
Lord Marks of Henley-on-Thames
Before my noble friend gets on to her third point regarding 16 and 17 year-olds, may I just ask her whether she was saying in her previous remarks that if it is the case that the likely impact of the offence is not caught within the phrase,
“the circumstances of the offender”,
she will therefore support that amendment of mine?
Baroness Berridge
No. In relation to the likely impact, my point was whether that is considered under the requirement in the Children and Young Persons Act to take into account the welfare of the child.
With regard to 16 and 17 year-olds, it is already the position that they are covered under the mandatory sentencing provisions if they are convicted twice of the offence of threatening with a knife, so it would be inconsistent not to include 16 and 17 year-olds under these provisions where there will be mandatory provisions when you are twice convicted of the offence of the possession of a knife.
I understand that there is not a clear age of majority in this country, but when you can marry and join the Army at age 16, if you have been found in possession of a knife and convicted of that offence and then been found in possession of a knife again by the time you are 17, I do not think it is unduly harsh to say to those young people that a prison sentence is to be imposed unless the provisions of proposed new Section (6B) are found to apply by the judge.
Finally, in relation to the disproportionality issue for black and ethnic minority young people which I have mentioned previously in your Lordships’ House, it is clear that it is also the case that those young people are disproportionately the victims of knife crime. If one is going to plead disproportionality, one has to look not only at offenders but also at victims. The use of knives on young black people—particularly men—is an issue of grave concern in that community, so one has to look at both sides of that issue and not just at the disproportionality of offenders.
Lord Faulks
As noble Lords will be aware from previous discussion on this matter in Committee, this clause was added to the Bill by a Back-Bench amendment in the other place and the principle agreed by your Lordships’ House. Noble Lords will also be aware that agreement has not been reached on the policy underlying this clause within the Government, so I hope that noble Lords will understand why I cannot speak to the detail of these clauses, much though I would like, for example, to have risen to the challenge posed by my noble friend Lord Carlile.
The only thing I can say is simply to assist the House in answer to a technical query about Section 44 of the Children and Young Persons Act 1933 and the welfare of the child and the young person. That is not—and I do not think my noble friend Lord Marks suggested it was—an impediment to actually passing a sentence of this sort. Otherwise, a child might not ever be sent into the secure children’s estate.
Lord Marks of Henley-on-Thames
I hesitate to interrupt. My noble friend knows full well that that section merely requires the court to have regard to the welfare of the child and therefore is not an impediment to imposing the compulsory sentence. My point is that the circumstances that the court may take into account in declining to impose the mandatory sentence are so circumscribed that that runs counter to the spirit of the provision mentioned.
I assumed I was interrupting, but perhaps that is not the case and my noble friend has finished. I do not propose at this late hour to press these amendments to a vote because I do not suppose they would produce a conclusive result in favour of the amendment, although those in my party feel extremely strongly about this. We deeply regret that the Labour Party has decided not to support our position on 16 and 17 year-olds in particular, and the reason for that regret is that in the lead-up to this debate, and indeed in the lead-up to the debate in Committee, I saw not one shred of evidence from any professional body supporting the imposition of compulsory custodial sentences for 16 and 17 year-olds in these circumstances. We on these Benches believe that maintaining judicial discretion is vital to the administration of justice and we are deeply concerned by its reduction in this and other sections of this Bill. I beg leave to withdraw this amendment.
The Deputy Speaker
The amendment has already been moved and the Minister has responded, so it is for the noble Baroness now to decide what she wishes to do with the amendment.
Lord Marks of Henley-on-Thames
My Lords, before my noble friend formally concludes speaking to the amendment in response to the Minister, perhaps I might indicate that in our view it is unsatisfactory that an amendment is reaching the statute book with very detailed amendments proposed by the noble Baronesses, Lady Berridge and Lady Browning, without the Government having expressed any view as to the degree to which they work. If what I suspect is now going to happen does happen, these amendments will be carried and this is the way that the Bill will go on to the statute book. We regard that as unsatisfactory. Perhaps consideration should be given to procedure on a Bill of this sort in future.
Lord Faulks
The Government’s position has not changed. Parliamentary counsel assisted the noble Baroness in making sure that the necessary amendments were properly and accurately drafted. I hope that that assists the noble Lord.
“Publication of private sexual images
(1) It shall be an offence for a person to publish a private sexual image of another identifiable person without their consent where this disclosure causes distress to the person who is the subject of the image.
(2) A person is not guilty of an offence under subsection (1) if he or she-—
(a) reasonably believed that the person who is the subject of the image had consented to its publication;(b) reasonably believed that the publication of the image would not cause distress;(c) reasonably believed that the image had previously been published; or(d) did not intend to publish the image. (3) For the purposes of this section it is immaterial who owns the copyright of the published image.
(4) An offence under this section is punishable by—
(a) on conviction on indictment, imprisonment for a term not exceeding 2 years or a fine (or both);(b) on summary conviction, imprisonment for a term not exceeding 6 months or a fine (or both).
Lord Marks of Henley-on-Thames
My Lords, Amendment 98 stands in my name and in the names of my noble friends Lady Grender, Lady Brinton and Lady Barker. I shall address the entire group of amendments, in particular the amendments tabled by my noble friend Lord Faulks.
Your Lordships may remember that in Committee I and colleagues on these Benches moved an amendment to criminalise the practice of posting so-called “revenge porn” on the internet. This thoroughly nasty behaviour, where the perpetrators post sexual images of former lovers after the breakdown of their relationships in order to hurt their victims, has become all too common. There are a number of sites with names like “MyEx.com” where such images abound.
Unsurprisingly, the publication of such images causes untold distress, embarrassment and humiliation. Such publication has the potential to create havoc with victims’ mental and physical health, their happiness and self-esteem, their future trust in others, their ability to form relationships and their present and future relationships—social, within their families and at work. Publication by a former lover in these circumstances is a gross breach of trust. The images are taken in the privacy and trust of an intimate relationship, with the consent of the victim. They are then deliberately and callously displayed to the world without their consent, in a malicious attempt to cause distress.
The Government’s response to our amendment in Committee was to promise to consider the issues that we raised. I have been delighted by the way that such consideration has led to the tabling of the Government’s amendments in this group. They start with Amendment 103, which would establish the offence of, “Disclosing private sexual photographs and films”, widely defined, “with intent to cause distress”. I am aware that at the early stages of the Government’s consideration there was a view within the Ministry of Justice that no new offence was needed, on the basis that existing offences largely covered the evil with which we were concerned. However, further consideration has led the department to the conclusion that a new offence is indeed needed. That recognition is right and I commend and thank my noble friend, and all those who have worked with him on this within his department, for the extremely hard work that they have undertaken in the short time since Committee to develop these proposals.
The three essential elements of the new offence will be, first, that the image must be,
“a private sexual photograph or film”,
widely defined; secondly, that it must be published “without the consent of” the victim and, thirdly, that “the intention of” the publisher must be to cause the victim “distress”. Those elements largely mirror those of the offence mentioned in our amendment and we are content that the government amendments represent an effective way of dealing with this despicable behaviour.
We have had one concern as to the definition of sexual, which our amendment left undefined. The Government have sought to define it in Amendment 105. Subsection (3)(a) of their proposed new clause is clear, referring precisely to,
“an individual’s exposed genitals or pubic area”.
Paragraphs (b) and (c) of that subsection go wider. They refer to an image being sexual if, in paragraph (b),
“it shows something that a reasonable person would consider to be sexual because of its nature”,
and, in paragraph (c), if,
“its content, taken as a whole, is such that a reasonable person would consider it to be sexual”.
My noble friend and officials within his department helpfully held a meeting with us, at which they explained the difficulties that they faced in defining a sexual image. Colleagues were concerned that a topless photograph should be capable of being within the definition of “sexual”, in appropriate circumstances, and particularly where photographs of younger women were concerned. On consideration, we have come to the conclusion that paragraphs (b) and (c) enable the contents of such an image to be considered widely and that a successful balance is struck by the proposed wording. However, I should be grateful if my noble friend would confirm that he considers that paragraphs (b) and (c) considerably widen the ambit of paragraph (a).
I conclude by paying tribute to all those colleagues who have campaigned for the criminalisation of revenge porn. I particularly mention in this context my honourable friend Julian Huppert MP, who raised this issue in the other place and has worked hard on it. In view of the commendable position taken by the Government, we will not be pressing Amendment 98.
Baroness Brinton (LD)
My Lords, I, too, have my name to Amendment 98 and wish to echo the points made by my noble friend Lord Marks on government Amendments 103, 104 and 105. I also support his comments about the definitions of private and sexual, and look forward to hearing the Minister’s response.
In recent years, a new series of unpleasant crimes relating to technology have developed. Cyberstalking, cyberbullying, sexting and now revenge porn are all about abuse of power and spreading information widely on the net. I shall focus on the devastating effects of the circulation of these images, and why the three criteria outlined in the government amendments are inextricably linked and why the presence of all three demonstrates the state of mind of the perpetrator. The proposed offence is vile. It is not just blackmail, although it has been used by some for that effect. It is not just the betrayal of trust and confidence of a former partner, but about the long-term damage on the partner who has been exposed. It is an abuse of power designed to cause distress, and with the nature of social media today, the perpetrator can hand it on and on to others, including professional revenge porn sites whose participants often then choose to troll the original victim, their family and their work colleagues.
Many victims of revenge porn are too scared and humiliated to speak out but a few brave individuals do. Hannah Thompson has and is now a leading campaigner for the new law. Here is what she had to say about why she thinks the law needs to change:
“For those who don’t know, revenge porn is non-consensual pornography. It’s where a person uploads an explicit image of somebody without their permission. Often the victim’s name and contact details are attached. Not only is it humiliating but it has the potential to reach out of the screen and destroy people’s lives … Of course, there is nothing inherently wrong with sharing private images of yourself but you do so with a reasonable expectation of privacy. There is, however, something intrinsically wrong with using explicit images as a tool to harass and humiliate someone. As a victim of revenge porn, I can’t even begin to explain how relieved it makes me to think that Parliament is seriously considering these proposals. Most victims of revenge porn are shamed and forced into silence for fear that more people will find their images. They’re made to tolerate the abuse and forced to suffer through tedious copyright claims because it’s the closest they can get to having something done. I’ve spoken to victims who were suicidal, whose images were taken on a Polaroid camera before they had any concept of the Internet, who have lost their careers and whose relationships have been ruined. All the while, those who have published the images are free to sit back and revel in the pain they’ve caused to someone whose only crime was to trust them”.
Celebrities have been caught too. Photos of Jennifer Lawrence were found by a hacker, and Rihanna and Tulisa Contostavlos have had private nude photos released by former partners. But we do not know the size of the problem because only eight out of 43 police forces collect data. The Huffington Post said:
“The data that was available suggests revenge porn is on the rise: there were 35 reported incidents in 2012, jumping to 58 in 2013, and there have been 53 in the first half of this year alone”.
Tonight, Hannah and the other victims are in the public gallery watching our proceedings. Their bravery in fighting for revenge porn to be made a criminal offence would also mean that our police forces will start to catalogue this offence more carefully. Most of all, it will send a message to former partners who commit this appalling act that the effect it has on the victims is not one that our wider society is prepared to accept.
Lord Marks of Henley-on-Thames
My Lords, in withdrawing Amendment 98, I simply say that I am grateful for my noble friend’s clarification that he agrees with our view that proposed new subsections (3)(b) and (3)(c) in Amendment 105 do indeed add to the rather definite description of “sexual” in subsection (3)(a).
At the meeting that we have mentioned, we discussed whether we should include a non-exhaustive list of factors that might be taken into consideration when coming to a conclusion as to whether an image is sexual. I have reached the clear view that the Minister and his officials are right to conclude that such a list would not be helpful; indeed, it might have the effect of limiting the ambit of the offence. I beg leave to withdraw the amendment.
“Public interest defence to Computer Misuse Offence
In the Computer Misuse Act 1990, after section 1(2) insert—“(2A) Subsection (1) does not apply to a person who shows—
(a) that the conduct which would otherwise be an offence under subsection (1)—(i) was necessary for the purpose of preventing or detecting crime, or(ii) was required or authorised by or under any enactment, by any rule of law or by the order of a court;(b) that he acted in the reasonable belief that he had in law the right to carry out that conduct;(c) that he acted in the reasonable belief that he had relevant authority;(d) that he acted in the reasonable belief that in the particular circumstances the conduct was justified as being in the public interest; or(e) that in the particular circumstances the conduct was justified as being in the public interest.””
Lord Marks of Henley-on-Thames
My Lords, this group comprises Amendments 106A to 106D and 181A and is the last group at the end of a long day.
Amendments 106A to 106C would introduce new defences to criminal offences under three statutes, the Computer Misuse Act 1990, the Bribery Act 2010 and the Data Protection Act 1998.
I turn to Amendment 106A. Section 1 of the Computer Misuse Act creates an offence effectively of using a computer to secure unauthorised access to data or to a program—in other words, what is conventionally called hacking into other people’s computers. The amendment would create a public interest defence to that offence. The defence proposed is directly in line with a defence that already exists under Section 55(2) of the Data Protection Act 1998, to which I will return in respect of Amendments 106C and 106D.
The amendment would place the onus squarely on the defence, stating:
“Subsection (1) does not apply to a person who shows”.
The defences are that the conduct which would be an offence was necessary for the purpose of preventing or detecting crime or was required or authorised by or under any enactment, a rule of law or by order of a court; or that the defendant acted in the reasonable belief that he had the right to carry out that conduct; or that he acted in the reasonable belief that he had relevant authority; or that he reasonably believed that the conduct was justified as being in the public interest; or that in the particular circumstances the conduct was justified as being in the public interest.
Lord Marks of Henley-on-Thames
My Lords, I say at the outset that I entirely accept the point made by both the Minister and the noble Lord, Lord Beecham, so elegantly and in such a restrained fashion, about the lateness of these amendments. I entirely accept that the complexity of these amendments, and the fact that the Government and the Opposition have had so little time to consider them, means that it would be wrong of me to press them to the vote today.
Nevertheless, in encouraging my noble friend and his department to give further consideration to the points raised by the amendments, I will deal briefly with some of his points. He mentioned the need for consultation under Section 77 of the Criminal Justice and Immigration Act, affecting Section 55 of the Data Protection Act—as it would be with the amendment—and he deduced from that that it would be wrong to proceed without consultation. The fact is that there have been two consultations on this issue by the previous Government, and furthermore we now have the clear recommendations of the Leveson report that both of these provisions should now be implemented. In those circumstances I find it hard to understand why he expresses the view so clearly that all Leveson’s proposed changes on data protection have to be understood together. The proposals on the new defence are not subject to a consultation requirement; that refers only to the new penalties, for which there is a crying need.
I will also deal with what my noble friend said about the existing defences, particularly his reference to the Bribery Act. He mentioned that there are defences under the Bribery Act which cover conduct by the intelligence services or the Armed Forces on active service. That may be right, but it is hardly relevant to the question of whether responsible journalism should give rise to an entirely separate defence. He also mentioned the Computer Misuse Act including a saving provision for law enforcement—again, hardly relevant to whether a public interest defence should be allowed in respect of that Act.
My noble friend is right to say the purpose of these amendments is to provide a defence for journalists acting in the public interest. It is always an important issue for the public to be protected. I suggest that the balance that needs to be struck, between journalists being able to carry out investigative work for a genuine public reason and the need to protect the public from computer misuse and unlawful conduct offering financial advantage, is one which needs a great deal of attention. He is of course right that the Crown Prosecution Service has to take the public interest into account. However, the fact that it has to consider whether a couple of further defences would succeed before making its decision is not a reason for the Government not to take these amendments forward at a later stage. I beg leave to withdraw the amendment.
Criminal Justice and Courts Bill
Lord Marks of Henley-on-Thames Excerpts(10 years, 3 months ago)
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Lord Marks of Henley-on-Thames (LD)
My Lords, I said a great deal of what I intended to say on Clause 65 when I spoke to the amendment moved by the noble Lord, Lord Beecham, to the clause on Monday. My position, as I explained, is that I regard the requirement for any supporter of an application for judicial review to disclose the extent of his actual or likely financial resources as being contrary to justice and likely to deter or even stifle legitimate applications for judicial review.
I accept that there is a case for ensuring that applicants with means do not hide behind applicants with no means or shell corporations to bring a judicial review application without facing, or being prepared to face, the costs consequences of its failure. However, the provisions proposed by Clauses 65 and 66 are far wider than is necessary simply to limit that practice where it exists. As the noble Lord, Lord Pannick, pointed out, the courts already have ample powers to order costs against non-parties under Section 51 of the Senior Courts Act and under Rule 46.2 of the Civil Procedure Rules. Third parties who support litigation can be ordered to pay the costs of that litigation if they are effectively the real applicants and the applicants on the proceedings are mere nominees. That is just and as it should be. However, I suggest that Clause 66 as it stands—which goes far wider—is unnecessary and, in its mandatory effect, unduly dirigiste.
Lord Faulks
The problem was that there was nobody to enforce an order for costs against, effectively. That was the disadvantage that accrued to the taxpayer. Clause 65, which was welcomed by the senior judiciary, provides for information about financial resources to be provided and for that information to be used. The problem was that that case proceeded and there was no way of recovering the costs when it concluded.
Lord Marks of Henley-on-Thames
I am sorry to take up the Committee’s time, but I am not sure that the Minister has answered the point made by the noble and learned Lord, Lord Woolf. First, there is clearly a power to order the backers of a shell company to pay the costs if a shell company is put forward as the applicant. The question to which the noble and learned Lord, Lord Woolf, wanted an answer was whether the Minister agreed that in the exercise of that power, or in considering the exercise of that power, the court would not have ample power to require information about the nature and extent of the backing and then to consider orders accordingly. I suggest that it is quite clear that the court has that power.
Lord Faulks
The court certainly has power to make orders against non-parties in appropriate circumstances under the existing law. It is not normally the case that that is happening. The purpose of these clauses is to provide a statutory framework in which the court can find the information and use it if it thinks appropriate while retaining the discretion.
Lord Marks of Henley-on-Thames
Presumably my noble friend would concede that the claimant who fills out the form is only going get the information from the supporters who are proposing to support him.
Lord Faulks
Quite so, but I thought that the inference was that some full disclosure of all financial circumstances was going to be required of third parties, and that is not what the rules suggest.
We suggest that these clauses are not making a radical change in the existing law. They are not, in fact, removing the capacity of those who should be able to bring claims for judicial review; they are simply placing on the statute book what some of the senior judiciary wanted, which was a degree of transparency to stop those rare cases where the taxpayer is having to pay for judicial reviews in circumstances where the true funders are managing to obscure the position in a way that no one in this Committee would like.
Baroness Lister of Burtersett
My Lords, I support the amendment and I also believe that the clause should not stand part of the Bill. I welcome the fact that the Government are in listening mode on this clause and that at its early stages the Minister has suggested that he is open to amending it, although I think that it would be better if it simply vanished. I put on the record that I welcome the Government’s climbdown on the question of standing. The Minister said that perhaps we had not given enough recognition to that, so I am doing so now. That was partly in response to points made by the Joint Committee on Human Rights—of which I am a member—which is very concerned about this clause. The committee said:
“Third party interventions are of great value in litigation because they enable the courts to hear arguments which are of wider import than the concerns of the particular parties to the case”;
and, as has been pointed out:
“Such interventions already require judicial permission, which may be given on terms which restrict the scope of the intervention. We are concerned that, as the Bill stands, it will introduce a significant deterrent to interventions in judicial review cases, because of the risk of liability for other parties’ costs, regardless of the outcome of the case and the contribution to that outcome made by the intervention”.
It went on to say that,
“it is not clear to us at what mischief this clause is aimed”,
a point made with regard to the previous group of amendments. The committee goes on to say:
“The Government has not produced evidence of abusive interventions or cases in which an intervention has significantly and unjustifiably increased the costs of the case for other parties”.
In contrast, the briefings that we have received include numerous examples where interventions have assisted the courts, as recognised by the senior judiciary; this point has already been made by a number of noble Lords. A number of us here attended an oral briefing recently, and I was struck by the presentation made by a representative from Just For Kids Law. It is very clear that the new rules can prevent it playing this role, thereby depriving the courts of very important specialist information about children in criminal law.
The organisation Justice regrets that the Government have made no attempt to assess the public interest of interventions. They have given no indication of the practical implications. Perhaps noble Lords will permit me to read a series of questions that Justice has asked, because I believe that they deserve an answer. It says:
“While cases of obvious time wasting by third party interveners are easily addressed under the rules currently in place, how will the court be able to determine whether additional costs are in fact attributable to an intervention? If an intervener acts within the bounds of his permission to intervene, with written and oral submissions made only as directed by the court, will they avoid costs? On the language of ‘exceptional circumstances’ proposed in the Bill, it would appear not. If an intervener provides clear, concise reasoning which clarifies the issues and saves everybody time, will saved costs be deducted from those otherwise payable by the intervener? The allocation of costs referable to an intervention is unlikely to be straightforward”.
I have already quoted from the joint briefing, in which civil society groups warn that there is a real risk that the court will lose the ability to hear from that part of civil society that represents the poor, the weak and the excluded, and to bring specialist expertise to bear. This clause will further tilt access to justice in favour of those with power and resources, who will be able to bear the costs, and against those without power and resources, who will not be able to bear the costs. This is in the context of legal aid cuts, which are already tilting this balance beyond what can possibly be deemed to be just.
Lord Marks of Henley-on-Thames
My Lords, as the noble Lord, Lord Pannick, pointed out, Clause 67 proposes, first, that an intervener cannot get its costs except in exceptional circumstances; and, secondly, that an intervener must pay the costs of all the parties occasioned by its intervention except in exceptional circumstances. Both of these propositions—but particularly the second—are extraordinary. They are plainly designed to deter interventions by making them possible only if the intervener can fund all parties’ costs occasioned by the intervention.
If an intervener finds evidence, all the other parties’ evidence in reply will be at the cost of the intervener. If an intervener’s counsel speaks for half a day and the other parties’ counsel reply for a day and a half, they do so at the intervener’s cost. All that is on a win-or-lose basis, so even if the intervener is proved right and the government department or departments are proved wrong, and even if the judge has been greatly assisted by the interveners, the interveners will still pay all the parties’ costs occasioned by the intervention. This is against the background that, far more often than not, interveners do indeed help the court. After judgments, one frequently sees judges expressing their gratitude for the assistance of interveners, who, as has been said, often bring a broader experience to a particular judicial review application than an individual applicant can bring. The Committee was greatly assisted by the first- hand evidence of the noble and learned Lord, Lord Carswell, as to how helpful interventions often are.
The arguments in favour of this clause appear to be based on the proposition that interveners are often campaigning organisations with an agenda that is—in the widest sense of the word, at least—political or quasi-political. So they are, but such campaigning organisations have considerable expertise in their fields, as noble Lords have pointed out, and noble Lords benefit regularly from briefings from such organisations. If those interventions lack merit, the courts already have discretion to make orders for costs accordingly. However, these provisions would threaten not only the right to intervene but also the ability of the organisations which currently intervene habitually in judicial review cases to raise funds for their activities. That is a threat, I suggest, to the functioning of civil society. I will not name particular organisations because a number have already been named in this debate. I believe that to inhibit the activities of those organisations would be profoundly wrong. I do not believe that any body of credible evidence has been advanced in support of this clause to support the proposition that interventions have caused a problem that needs correcting. Still less do I believe that the courts’ existing powers to make costs orders are inadequate.
Our Amendments 74A, 74C and 74D preserve the courts’ general discretion to order a party to pay an intervener’s costs if the courts consider it just to do so. Amendments 74H and 74K preserve the general discretion of the courts to order an intervener to pay another party’s costs. I can see no possible basis, in either justice or common sense, to interfere with the existing court process and to deter interventions in the way that Clause 67, as drafted, is bound to do.
Lord Woolf
My Lords, I was hesitant to add to this debate by yet another intervention, but perhaps I may draw attention particularly to subsection (6), which says:
“In determining whether there are exceptional circumstances that are relevant for the purposes of subsection (3) or (5), the court must have regard to criteria specified in rules of court”.
I would like the Minister’s help as to what matters can properly be said to be criteria, as opposed to matters that are not. “Exceptional circumstances” would not normally, for example, provide any protection—this is the important point—to the position of the charitable organisations which, at the present time, intervene.
Lord Faulks
Since we are in Committee, perhaps I can try to assist the Committee.
The power derives from restatements of principles which, as the noble Lord said, are inherent in the court’s processes. In the Court of Appeal case Regina (on the application of Corner House Research) v the Secretary of State for Trade and Industry in 2005—EWCA Civ 192—the Court of Appeal considered that Corner House, which was an anti-corruption NGO, should, if unsuccessful in the judicial review, exceptionally be protected from being liable for the defendant’s costs because,
“the issues of public importance that arose in the case would have been stifled at the outset, and the courts would have been powerless to grant this small company the relief that it sought”.
It also set out the general principles for when a protected costs order should be granted: first, the issues are of general public importance; secondly, the public interest requires that those issues should be resolved; thirdly, the claimant has no private interest in the outcome of the case; fourthly, the financial means of the claimant mean that the protected costs order is fair and just; and, finally, if the order is not made, the claimant will probably discontinue the proceedings.
Lord Marks of Henley-on-Thames
On Clause 68, there is only one amendment in my name, Amendment 75F, which removes subsections (6) to (11). The reason for that is we firmly believe that the making of costs capping orders should be left to the discretion of the court in appropriate circumstances. Of course, those depend on the financial circumstances of the parties, which are mentioned in subsection (5), so they should stay in Clause 68. However, the factors that are set out in subsections (6), (7) and (8) relate to public interest proceedings and might legitimately influence the decision of the court in an appropriate case.
By Amendment 80A in relation to Clause 69—I am proceeding on the basis of a suggestion that Clauses 68 and 69 should be debated together—which is in my name and that of my noble friends Lord Lester of Herne Hill and Lord Carlile of Berriew, further factors are listed as factors that the court should take into account.
In relation to the explanation that the Minister has just given of the origin of the costs capping jurisdiction, I fully accept that the Corner House principles limit the jurisdiction to public interest proceedings. I am not sure that that limitation is legitimate or necessary, although it is plainly relevant. The reason I suggest that it is not necessary to limit it in that way is that there may be unusual cases where an individual is so justifiably aggrieved by an unlawful decision of a public body in a case which does not have universal or public importance that a costs capping order or a protected costs order might be appropriate, even though there is no wider public interest.
I fully support Amendments 75 and 75A in respect of Clause 68, which would remove the bar on making a costs capping order until after the permission stage. For my part, I can see no reason for such a bar, unless it were to choke off applications for leave to apply for judicial review for fear of an uncapped costs order. That, I suggest, is an unacceptable reason for stifling proceedings at that stage.
Our Amendments 77A, 80A and 80C to Clause 69 would restore the position that costs capping orders in judicial review proceedings are discretionary. Amendment 77A would require the court, when considering making such an order and then in considering the terms of any such order, to have regard to all the circumstances of the case. There would then follow a list of circumstances to which the court should have regard. This is a common enough formulation: in the provision of a non-exhaustive list, Parliament gives an indication to the courts as to the factors that should be considered. However, in its acknowledgement of the fallibility of lawmakers, and of the range of possibly unforeseeable circumstances, as mentioned by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, the requirement that the court should have regard to all the circumstances of the case is, I suggest, a just and sensible one, which would allow judges to make the right decision in the particular cases that come before them.
As I have said, Amendment 80A would add to the list of factors that the courts should take into account all the factors drawn from the present proposals in Clause 68. These factors would not—and, I suggest, should not—be ranked in any particular order of importance. The court would be entitled to have regard to them as it thought appropriate. As I have also said, this does not require public interest considerations to be a precondition for a costs capping order.
Amendment 80C would remove the requirement that a costs capping order in favour of an applicant would necessarily import a requirement that the court make a costs capping order in favour of the defendant at the same time. It would make the imposition of such an order discretionary in any given case. This was the present position, as outlined by the noble Lord, Lord Pannick, in answer to the question posed by my noble and learned friend Lord Mackay of Clashfern. It does not seem to me that there is anything sensible or justifiable in an automatic rule that what is sauce for the goose is sauce for the gander. It may sometimes be appropriate to make a costs capping order in relation to a defendant’s costs—more rarely, I suggest, because of the nature of the parties, than it is to make such an order in respect of an applicant’s costs. But again, I see no reason for interfering with the discretion of a court to make whatever orders appear to it to be just.
Baroness Campbell of Surbiton
My Lords, I also wish to speak—[Interruption.]. Sorry, I did not intend to knock over the microphone. Let me begin again.
My Lords, I support all the amendments in this group, in particular Amendments 75 to 77 and Amendment 81, in the name of my noble friend Lord Pannick, and I oppose the Question that Clause 68 stand part of the Bill.
The proposals are yet another barrier to access to justice. While we are talking about barriers to access to justice and people’s access to advocacy, I hope that the Minister will humour me—unfortunately, I have not yet figured out a way to intervene when he is speaking, apart from waving my arms about—and allow me to come back to him on the subject of the importance of cases and of intervening in such cases. Cases are often not all about winning or losing; they are about what we all gain from the proceedings. Yes, Leslie Burke lost on appeal, but his was the first case that prompted the GMC to change the guidelines on issues of life and death, and to begin to change the nature of the involvement of patients in their treatment. So we gained from that case, even though it was lost on appeal. That shows us how important access to justice is—not necessarily just for the particular case, but for what it offers us all in society.
The Government’s proposals on costs capping are deeply worrying in two respects. As I understand it, under Clause 68 the court can make an order only if the claimant already has permission to ask for judicial review. This will have a dramatic effect on access to justice. At present, an order can be made before the claimant asks for permission, so the claimant knows from the outset how much they will be liable for. This is vital, because most of the work is done in the early stages before the permission hearing. The Government themselves have said their costs can amount to £30,000. Without the protection of an order, most charities will simply not be able to seek permission. The risk is too great.
The clause defines “public interest proceedings” and sets out the matters the court must consider in deciding that question. But the Lord Chancellor can change those matters by regulations. That cannot be right. In effect, the Lord Chancellor is surely then able to dictate to the court what is in the public interest—when it is the Government who are most likely to be the target of such proceedings.
These proposals have to be seen in the context of the whole package of increasingly worrying legal reforms. As legal aid is withdrawn in cases of significant public interest, costs capping becomes even more important. In a recent case that I know of, a disabled and destitute man from Nigeria, who had been living on the streets, was denied legal aid and was able to get his case brought before the courts only because he got a protective costs order. If costs capping is severely restricted, what chance will individuals have of holding public bodies to account? I am mystified. This is yet another barrier in the way of ordinary people getting access to justice at every level—and it is the marginalised who will be most affected.
Both the Joint Committee on Human Rights and the Constitution Committee of this House have expressed concerns about these proposals. Their effect will be to drive away all but the wealthiest of claimants. The one route available for righting wrongs will be eroded for those who most need it. I do not feel that we can allow this to happen.
“( ) Subsection (1) shall apply subject to the requirement imposed by section 70(3) in proceedings to which that section applies.”
Lord Marks of Henley-on-Thames
My Lords, this group of amendments concerns environmental judicial review cases and relates principally to Clause 70.
Under the Aarhus convention—or, to give it its full title, the United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters—made in 1998 and ratified by the United Kingdom in 2005, the United Kingdom committed itself to ensuring that environmental litigation will be,
“fair, equitable, timely and not prohibitively expensive”.
Compliance with the convention is monitored by a compliance committee to which Governments and the public, whether individuals or corporate bodies, can complain of non-compliance with the convention provisions. By rules of court contained in the Civil Procedure Rules—at Rules 45.41-44—the courts in England and Wales have introduced rules limiting costs awards in Aarhus convention judicial review claims to relatively low fixed sums: currently, £5,000 against an individual claimant, £10,000 against a claimant which is a business or other legal person, or £35,000 against a defendant. There are, I understand, similar provisions in Scotland.
There is a detailed but relatively simple and quick procedure under the rules for a defendant to challenge a claimant’s contention that a claim is indeed an Aarhus convention claim. Clause 70 is an attempt to enable the Lord Chancellor, by regulations, to comply with the Aarhus convention by providing for the costs-capping restrictions in Clauses 68 and 69, which we have just discussed, to be excluded,
“in relation to judicial review proceedings which, in the Lord Chancellor’s opinion, have as their subject an issue relating entirely or partly to the environment”.
I regret that, as an attempt to comply with the Aarhus convention, Clause 70 is, as drawn, inadequate in a number of respects. First, the clause is merely permissive and not mandatory. It states:
“The Lord Chancellor may by regulations provide”.
For so long as the Lord Chancellor fails to exercise his power to make regulations under the clause, it is self-evident that the United Kingdom will be in breach of the Aarhus convention by its restrictions on costs capping in applicable cases.
Secondly, the clause would apply only to exclude or restrict the application of Clauses 68 and 69, limiting costs capping or protective costs orders. For all the reasons given to this Committee in earlier debates, the effects of Clauses 65 and 66 would be to expose anyone lending financial support to judicial review proceedings to an application for the whole cost of the proceedings if they are unsuccessful, with what amounts to a presumption that such a costs order is likely to be made against any such supporter. It is completely clear that the effect of such clauses is to make such litigation prohibitively expensive within the meaning of the Aarhus convention.
Furthermore, as has been explained at length today, Clause 67, if enacted, would have the effect of exposing interveners to a costs order against them in any case in which they intervene, win or lose. It would prevent them from getting their costs, however good their case and however helpful their intervention, even from a thoroughly unmeritorious defendant, unless the court could find “exceptional circumstances”. I submit that it is clear beyond argument that those clauses would make environmental judicial review cases prohibitively expensive, just as devastatingly as the restrictions on costs capping to which Clause 70 is presently limited in its application.
The next problem with Clause 70 is that it refers only to environmental judicial review cases. The Aarhus convention itself is not so limited. The compliance committee found, as long ago as 2008, in a case concerned with odours emanating from the defendant’s waste site, that private nuisance claims relating to environmental matters were also cases to which the Aarhus convention applied. Indeed, only last week, in the case of Austin v Miller Argent (South Wales) Ltd [2014] EWCA Civ 1012, the Court of Appeal ruled, in a judgment given by Lord Justice Elias with which Lord Justice Pitchford agreed, that the court did not,
“see why in an appropriate case a private nuisance claim should not be treated as one of the judicial procedures referred to in Article 9.3”,
of the Aarhus convention. In that case, a protective costs order was not made on its facts, but the principle was clearly established that private nuisance cases could fall within the Aarhus convention.
The Public Bill Office has taken the view that the Long Title of this Bill is insufficiently wide to encompass amendments that deal with the applicability of the Aarhus convention to proceedings that are not claims for judicial review. I therefore invite my noble friend the Minister—if he does not already have enough business with his sun cream and his red pen—to consider widening the Long Title to enable the Government to introduce or consider amendments on Report to address non-compliance by the United Kingdom with the provisions of the convention outside the scope of judicial review, in particular in private nuisance claims.
A further weakness of Clause 70 is in the definition of its applicability. It applies to claims which are,
“in the Lord Chancellor’s opinion”,
environmental claims. That test both fails to tie the applicability of the clause to the terms of the convention itself and leaves the definition of what is or is not a claim within the clause entirely to the opinion of the Lord Chancellor. I fail to see why that should be thought an appropriate way of drafting the clause, given that rules of court have already established, in CPR 45.41 and 45.44, both a satisfactory definition tied precisely to the convention, albeit limited to judicial review claims—which I dispute—and a quick and effective method of determining whether a claim lies within that definition. I add in parenthesis that it is quite unclear from Clause 70 whether the existing rules of court would survive—or, if not, what would happen to them.
The convention compliance committee made findings in 2010 that the United Kingdom was in breach of the convention by reason of the general principle in our courts that costs follow the event. It made those findings despite the UK Government’s submissions that the availability of legal aid, conditional fee agreements and protective costs orders, and the wide discretion given to judges on costs, limit the severity of the general principle that costs follow the event in its application.
Those findings by the compliance committee of course predated the restrictions on legal aid, which were limited in the way that was correctly described by my noble and learned friend Lord Mackay earlier today. They also predated the restrictions on the recoverability of success fees and ATE insurance premiums and, of course, the restrictions on protective costs orders that are proposed by this legislation in the two clauses that we have just considered. At the very least, to even approach compliance with the convention, it is necessary to introduce exceptions, in cases to which the convention applies, to the restriction on the availability of legal aid at the permission stage and to the restriction on the recoverability of success fees and ATE insurance premiums.
Lord Faulks
My Lords, I am grateful to both noble Lords—my noble friend Lord Marks and the noble Lord, Lord Beecham—for their contributions to this debate. Clause 70 enables provision to be made to exclude judicial reviews about issues which relate entirely or partly to the environment from the revised costs capping regime established in Clauses 68 and 69, which we debated in the previous group. Clause 70 is to reflect our obligations under the Aarhus convention and the various European directives which implement it, which set out requirements for access to justice concerning environmental matters. This includes a stipulation that such procedures must be,
“fair, equitable, timely and not prohibitively expensive”.
This is relevant to judicial reviews in certain environmental cases. Allowing for such environmental cases to be excluded from the costs capping regime in Clauses 68 and 69 allows the Secretary of State enough flexibility to meet future changes in the international landscape. A separate regime has already been established in the Civil Procedure Rules to govern costs capping orders in such cases in England and Wales. It applies a fixed costs framework under which, in a claim raising issues that fall under the Aarhus convention, the liability of the claimant to pay the defendant’s costs is automatically capped at certain levels. This regime is simple to operate and understand.
Amendments 81C and 82B would seek to exclude certain types of judicial review from the provisions in Clauses 64 to 69. Those claims might be considered very broadly as “environmental”. Amendment 81C defines those cases that are excluded by reference to the Aarhus convention and introduces a requirement that, provided certain conditions are met, costs capping orders should be made in these cases.
Amendment 81C also aims to restore the full recoverable success fee and after-the-event insurance premium structure that the Legal Aid, Sentencing and Punishment of Offenders Act 2012 removed, implementing the Jackson reforms to reduce excessive costs in civil litigation. Amendment 82C would seek to define what would fall within the definition of an Aarhus convention claim. Amendment 81A is contingent on Amendment 81C. Its effect is to make Clause 69 subject to the changes to Clause 70, which I have already discussed.
Attempting to define these claims in statute risks either being too generous and gold-plating the Aarhus requirements, or alternatively being too restrictive and missing out claims which should be caught by the Aarhus regime. The definition as set out in the proposed new clause is very broad, and appears to err on the side of gold-plating. In particular, we would not necessarily accept that all private law claims falling within the new clause should come under the term “Aarhus Convention claim”.
The Government see no reason for excluding additional cases, particularly such a broad range of cases as would be covered by these amendments. Too broad a definition would create an incentive for claimants to characterise their claims as “environmental”, generating satellite litigation and assisting, for example, those bringing weak claims to shelter from their proper costs liability. In the Government’s view Clause 70, which allows for the exclusion of certain environmental judicial reviews from the new protective costs order regime which Clauses 68 and 69 will establish, is sufficient to ensure compliance with our obligations under the Aarhus convention and the directives which implement it. The proposed new clauses would upset the careful balance between ensuring the proper measure of access to justice in environmental and other matters and ensuring that judicial review is not misused.
I turn now to Amendment 82D. The new clause seeks to amend Section 10 of the LASPO Act, which makes provision about exceptional case determinations for individuals, and Schedule 3 to that Act, which makes provision about exceptional case determinations for legal persons, so that Section 10 and Schedule 3 would both refer explicitly to claims for judicial review related to the Aarhus convention. The Government do not believe that such an inclusion is necessary. First, funding would already be available to bring a judicial review with a potential benefit to the environment, subject to the merits and means test. This is in the scope of the general civil legal aid scheme by virtue of paragraph 19 of Part 1 of Schedule 1 to LASPO. Section 10 of LASPO provides for exceptional funding in cases that are outside the general scope of civil legal aid. Secondly, along with the provisions of the Aarhus convention, this amendment is concerned with reflecting EU directives. The current provisions under Section 10 and Schedule 3 already provide for legal aid to be granted where it is necessary to make the services available to the individual or legal person because failure to do so would be a breach of the individual or the person’s enforceable EU rights.
The noble Lord, Lord Marks, referred to reviewing the CPR. The Government have committed to reviewing the costs regime for environmental cases when the European Court of Justice handed down its judgment in the Commission v the United Kingdom case. Following that judgment in February this year, and recent case law, we are reviewing the current costs regime. As part of that review, we will consider whether the current costs regime for Aarhus claims should make provision for statutory review proceedings dealing with environmental matters, look at what scope there is to amend the current cap—which is currently £5,000 for individuals and £10,000 for businesses—and consider the principles determining what level of costs in a particular case would be prohibitively expensive, as set out in Edwards v Environment Agency and reiterated by the European Court of Justice in its various infraction judgments, and whether they could be included in the costs regime.
The Government do not accept that all private nuisance claims are caught by the convention requirements. They tend to focus on enabling those with interests in land to protect their private property rights rather than enabling members of the public to challenge environmentally deleterious acts. However, on the occasions where a private nuisance claim relates to actions which do not merely harm the claimant’s private property rights but contravene provisions of national law relating to the environment, there are judicial and administrative procedures which may be relied upon by members of the public.
The Aarhus convention protects the right of environmental NGOs to bring judicial proceedings. It is not necessary to intervene in existing cases, so Clause 67 does not put the UK in breach. As to reviewing the application of LASPO to this area, I recall that during the debate when the LASPO Bill was going through Parliament there was an attempt to carve out an exception for cases of this sort. As the noble Lord, Lord Marks, and the Committee will have heard me say, the Government are committed to reviewing the effect of the LASPO provisions, but it is far too early to do so in this particular context. The review will take place within five years—perhaps sooner than five years, but certainly not much sooner—so as to allow a full review of the effect, bearing in mind in particular that there was a large spike in cases before April 2013, the cut-off date, which may make it very difficult to analyse satisfactorily the effect of LASPO.
Of course, I will reflect carefully on the observations of my noble friend Lord Marks and the noble Lord, Lord Beecham, but I gratefully decline my noble friend’s invitation to amend the Long Title of the Bill as currently advised. It is our view that these provisions are sufficient to ensure compliance with our obligations under the convention and the EU directives. I therefore respectfully invite the noble Lord to withdraw his amendment.
Lord Marks of Henley-on-Thames
My Lords, I am bound to say that I am not greatly surprised by my noble friend’s declining to amend the Long Title of the Bill. I merely say that the amendments that I and others have put forward are directed only at making the United Kingdom’s procedures compliant with the Aarhus convention. I entirely take on board what he said about the impending review of the rules in the light of the European case, and I understand what he said about private nuisance claims. It is certainly not the case, and I never suggested that it was, that all private nuisance claims are covered. I am merely repeating the decision of the Court of Appeal that there is no reason why private nuisance claims relating to environmental matters should not be Aarhus convention claims. At the moment we have no costs regime to enable compliance with the convention in respect of those.
As far as legal aid is concerned, I entirely take my noble friend’s point about the review of LASPO that is due. My point is directed only at the fact that at the permission stage there is now a restriction on legal aid for judicial review claims that ought not to apply to Aarhus convention claims. In those circumstances I of course beg leave to withdraw my amendments at this stage, but I do rely on my noble friends having an opportunity to consider what I have said during the Recess and to come back and report.
Criminal Justice and Courts Bill
Lord Marks of Henley-on-Thames Excerpts(10 years, 3 months ago)
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Lord Marks of Henley-on-Thames (LD)
My Lords, I hope your Lordships will forgive me if, like other noble Lords, I preface what I say about the amendments in this group with a few general remarks about the proposals in the Bill for the reform of judicial review. In his Second Reading speech, the Minister described judicial review as,
“one of the most important means by which government and other public bodies can be held legally accountable for their decisions and actions”.—[Official Report, 30/6/14; cols. 1541.]
As Frances Gibb, the legal editor of the Times, reported in today’s edition, he stressed that the Government regarded judicial review as,
“terribly important and we are not trying to get rid of it”.
If that is right, we should have little difficulty, as a result of these debates, in persuading the Government to accept amendments to the proposals and to the Bill to ensure that judicial review is not threatened, as I and many other noble Lords believe that currently it is.
I suggest that the Government ought to respect the following six principles. First, judicial review exists for the purpose of enabling the citizen to hold the Executive to account. Secondly, of its nature, judicial review is a public law remedy. It follows that there is often, although not always, a significant public interest in ensuring that a judicial review case is heard and determined over and above the private interests of the citizen or citizens who bring the application.
Thirdly, judicial review cases, of their nature, attract support from numbers of concerned citizens and organisations—sometimes campaigning organisations—with an entirely legitimate interest in the issues involved. Fourthly—perhaps this is not a principle but part of the factual background—judicial review inevitably is often unpopular with government. It is therefore important that Parliament and the courts should be astute to ensure that it is not stifled by unduly restrictive procedures or rules. The noble and learned Lord, Lord Woolf, used the word “sensitive”; I suggest that is an entirely apt description of the requirement.
Fifthly, because financial gain is often not the primary purpose of judicial review cases, it is important that they can be brought without undue expense and without unacceptable financial risk for those who bring them, often out of public concern.
I believe that the sixth principle can be expressed very simply. It is this: trust the judges. Because, constitutionally, judicial review exists for the courts to hold the Executive to account, the best way of ensuring the robustness of that review procedure, and of gaining and maintaining public confidence in the procedure, is for the judges and not the Executive to be trusted to administer it.
I turn to Clause 64, which, as your Lordships have heard, seeks to ensure that any judicial review proceedings that can be classed as academic must fail. The test the clause seeks to apply is whether an unlawful decision by an arm of the Executive has, in fact, led to a “substantially different” outcome for the applicant from that which a lawfully reached decision would have produced. If it is “highly likely”—I repeat the criticism of that phrase—that the unlawful conduct has not made such a difference, the Bill proposes that leave to apply for judicial review must not be given. If leave is given and it turns out that the case is academic in the sense I mentioned, relief must be refused.
I accept that there may be purely academic cases that should not proceed to a hearing, even where it can be established that no part of the Executive has acted unlawfully—but, as the noble and learned Lord, Lord Woolf, pointed out, the courts already have a discretion to refuse permission or relief in such a case. However, I know of no convincing evidence that in practice a significant number of cases is, or has been, brought in which it can fairly be said that the unlawful decision-making at issue must have made no difference to the outcome for the applicant.
However, the real issue here is whether the fact that a case turns out to be academic in that sense should inevitably lead to its being dismissed. I suggest that there will often be a public interest in having the conduct of the decision-maker examined and, if necessary, overruled if the decision made turns out to have been unlawfully made—even where it may be said to have made no difference.
My noble friend Lord Carlile mentioned the question of a lack of consultation where the repeat exercise, when consultation is properly carried out, may lead to the same result. However, to condemn the lack of consultation and to refuse relief in spite of it is, I suggest, entirely wrong. There is also the question of cases where points of law need clarification or where points of procedure or fact need establishing, and need establishing in the public interest, even where a decision might have made no difference.
Therefore, the amendments in my name and that of my noble friend Lord Carlile seek to make the refusal of relief in a case that turns out to be academic discretionary rather than mandatory and to add an extra condition for the refusal of relief. Relief, we submit, should be refused only if an application is both academic in the sense proposed in the Bill and such that the public interest or the overriding objective of dealing with a case justly does not require that it be determined. Our amendments would apply those tests both at the permission stage and at the relief stage in the High Court and in the Upper Tribunal.
I am not among those who hold the view that Parliament should never legislate on the subject of judicial review. It is the right of Parliament in our democracy to do so, and in that I differ slightly perhaps from the arguments put forward by the noble and learned Lord, Lord Brown of Eaton-under-Heywood. However, I suggest, along with him, that we should be extremely careful before restricting by legislation the right of the courts to intervene in unlawful decision-making by organs of government where the court considers it appropriate to do so.
I can add only that the way in which judicial review has developed over the past few decades has demonstrated the very considerable respect for the breadth of discretion by executive decision-makers. It would be appropriate for the Government now to show similar respect for the need for discretion to be exercised by the judges.
Lord Faulks
I was going to come on to this, but it is a highly pertinent point. The position as I understand it is that a decision which has resulted in a declaration, whether it is called a declaration formally or not, whereby the validity of the argument is acknowledged, might give the applicant the satisfaction—and, if there is any significance, significance can be drawn from it—of knowing that there has been an unlawful act, or whatever the nature of the challenge is. But that would not necessitate a full-blown hearing to determine something that is evident on the papers but does not require there to be a full hearing some months later, for example. I am concerned about that point, and I shall consider it further in terms of the mechanism whereby the answer can be given without the need for expensive and cumbersome litigation. I appreciate the point.
Lord Marks of Henley-on-Thames
May I press my noble friend the Minister a little further on that? As I read the clause as drafted, the fact that the:
“High Court … must refuse to grant relief”,
encompasses a refusal to grant the declaration. For that reason, I was concerned by the intervention of the noble and learned Lord, Lord Mackay, as he expressed it on the point, because my noble friend the Minister’s final speech has dwelt on the question of whether the no-difference test is met. What he does not appear to allow for—and I shall be corrected if I am wrong—is, if the no-difference test is met, under this clause as drafted there is nothing that the court can do if this were implemented, because it must refuse to grant relief. That is how it seems to me, and to the noble Lord, Lord Pannick.
Lord Faulks
I do not think that I can expand much on my previous answer. If it makes no difference, it is true that, as the clause says, no relief should be granted. What I said that I would consider is the question of when it would make no difference but there is some benefit of a declaration or some judgment which reflects the lawfulness, whereby there might be some scope for providing that that should be given in the course of determining the very issue that Clause 64 covers. I think that that is as far as I can go. I shall consider the argument.
Lord Marks of Henley-on-Thames
My Lords, I have not proposed any amendments to Clause 65, but I fully support what the noble Lord, Lord Beecham, has said in seeking to implement the recommendations of the Delegated Powers and Regulatory Reform Committee, on which I sit, which recommended that rules of court that sought to implement the proposals of Clause 65 should be made by affirmative resolution.
On the general thrust of this clause, I regard it as entirely unjust for information to be required from any possible supporter of a judicial review application before the permission stage. It is that that Clause 65 would require. It would impose, in public law cases brought by the citizen to hold the Executive to account, a deterrent requirement that applies to no other English litigation. It has never been thought right to restrict access to the courts in this way, and I would suggest that it is particularly wrong to do so in public law cases.
I regret that I see this clause as no more than a threat. It seems to me to be calculated, whether intentionally or not, to have the effect of stifling applications for judicial review. Any supporter of such an application is to be subjected, before the application is brought, to a requirement to disclose all his financial resources, their nature and extent. That requirement is bound to be a significant deterrent to anyone with any means who is minded to support an application for judicial review. That so-called chilling effect I regard as reason enough for the Government to withdraw this clause.
I take as an example the relatively commonplace scenario of a group of residents in a village or a group of parents at a school who wish to challenge a decision of the local authority concerning services in their village or the closure of their school. Inevitably, some residents and some parents will be wealthier than others. The combined effect of Clauses 65 and 66 is likely to be to prevent the wealthier residents or parents from supporting the application for fear that they will be doomed to meet the lion’s share of any costs order made against the applicants if the judicial review application is not successful. That is likely to mean, in turn, that many meritorious applications for judicial review will not even reach the permission stage, let alone secure a determination, for want of financial support.
For that reason, Clause 65 is wrong in principle and, together with Clause 66, it represents a real fetter on the judicial review process. Clause 66 needs wholesale amendment, to which I will return in the next group. It is the case that the courts already have power to require information as to who is funding applications at the stage at which a costs application is made. That is the appropriate stage for that inquiry. Clause 66 needs amendment to see that that principle is preserved. But confining myself to Clause 65, I suggest that the idea that judicial applications should be choked off before the permission stage is entirely wrong.
Criminal Justice and Courts Bill
Lord Marks of Henley-on-Thames Excerpts(10 years, 4 months ago)
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Lord Marks of Henley-on-Thames (LD)
My Lords, I said everything I wished to say about secure colleges and the proposals when I spoke to the amendments in my name on Monday. However, I associate myself with the positive suggestion made by my noble friend Lord Cormack, backed up by the right reverend Prelate the Bishop of Bristol and others, that, given the very serious difficulties that face the present proposals for the implementation of the clause, this might be an opportunity for the Government to consider withdrawing it and coming forward with something else.
I repeat that we all applaud the proposal to give young offenders in the prison estate more educational opportunity. We all share the view that young people in the prison estate are there often precisely because they have not had educational opportunities in the past. In a sense, it is not what is in the Bill—the provision that the Secretary of State may provide secure colleges—that we object to; secure colleges would be capable of having all the aims that were set out in our amendment, but would be provided in a very different way from that which is presently proposed. Our concern, which my noble friend now understands is shared across the House, is that the proposal for implementation by the single pathfinder college that is now envisaged runs counter to all the evidence on the future of our penal system for young offenders. For that reason, I suggest the Government may wish to reconsider the whole future of the secure college proposal.
Lord Woolf (CB)
My Lords, I am not as expert in the matters raised as many who have already spoken in this important debate, but I have one advantage, which is that I am fully instructed by the Prison Reform Trust. The second is that, at one stage, I had to make a report—known as the Strangeways report—into deep problems in our prison system. Certain general lessons were set out in that report, which I think I am right in saying all those who are knowledgeable in this area still regard as being the right recipe for positive progress. We have had great advantage in hearing from the noble Lord, Lord Cormack, based in turn on what was said by the noble Lord, Lord Ramsbotham. I urge the Minister to take the very wise course that is being pressed upon him. We do not want to make a mistake of the sort that has been indicated could happen.
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, this has been a very useful and well informed debate. It continues the debates we had on Monday. I respectfully ask those in the Chamber at the moment to read the debate on Monday in which I gave a reply—I think for more than 20 minutes—in which I dealt with a considerable number of the points raised, although I did not purport to deal with all points. Indeed, I said on that occasion that I was proposing to write to sweep up any points that on examination of Hansard I had not dealt with adequately. I adhere to what I said then and will include any further points that have arisen out of the debate today.
What has emerged—as my noble friend Lord Cormack quite rightly said—is that we all have the same concern about providing the most helpful outcomes for troubled young people. It was also common ground that the focus on education is most welcome. What there is a lack of confidence in at the moment is whether the secure colleges can provide precisely what all of us in this House would wish to achieve for young offenders. The noble Earl, Lord Listowel, is quite right, of course, that many of those who find themselves in this situation come from troubled backgrounds. Many have been in care and present particular challenges for whatever establishment is going to have them when they are serving the sentence passed by the court.
The clause which is the subject of this stand part debate is the statutory framework for the creation of secure colleges so that the Government can trial a new approach to youth custody. Clause 29 provides the Secretary of State with the power to provide secure colleges, which is a new form of youth detention accommodation in England, and replaces the current Section 43 of the Prison Act 1952 with the new section. The current section gives the Secretary of State a power to provide young offender institutions, remand centres and secure training centres. As your Lordships will know, there are no remand centres in operation. The new Section 43 will additionally give the Secretary of State the power to provide secure colleges in England and Wales. Clause 29 introduces Schedule 5, which makes a number of amendments to other legislation to reflect the fact that secure colleges are being introduced.
I remind the Committee of the context for our proposed reform of the youth custodial estate. At present, we pay around £100,000 a year for a place in youth custody, and yet almost 70% of young people go on to reoffend within 12 months of release. In the case of secure children’s homes—the advantages of which were very much emphasised by those in debate on Monday—the cost rises beyond £200,000 a place, and yet the reoffending outcomes are no different.
Lord Marks of Henley-on-Thames
Does my noble friend accept that the comparison of costs for secure children’s homes with other institutions is perhaps a little unfair? It is the nature of secure children’s homes that they take the most difficult and troubled children, so the costs per year of a place in such institutions is necessarily considerably higher.
Lord Faulks
It is true, and I am going to come on to deal with that. The different establishments are there, in the view of the Youth Justice Board, to deal with the different challenges that the individuals present. My point is that secure children’s homes are no panacea. The starting point is that the overall rate of reoffending is simply not acceptable. That is why we are introducing secure colleges.
I entirely accept the point made by the noble Earl, Lord Listowel, that the Government should be aware of the long-term cost as well as the short-term cost. Indeed, the whole purpose of secure colleges is that, with the benefit of proper education, the Government consider that there should be a cost-saving in the long term because of the accrued benefit for young people who go to secure colleges.
Lord Marks of Henley-on-Thames
My Lords, I have added my name to Amendment 48B, as have my noble friends Lady Linklater and Lord Carlile of Berriew. We have also tabled Amendment 48F. However, the purposes of our amendment are identical to those of the noble Lord, Lord Ponsonby, so I will be brief.
There are three purposes to this group of amendments. The first is to ensure the extension to electronic media of those provisions dealing with restrictions on reporting of offending by children—restrictions that in a previous era applied to newspapers and standard television broadcasts. The public electronic media should all be treated in the same way. The second purpose, as the noble Lord, Lord Ponsonby, said, is to deal with pre-charge naming of children, which undermines the anonymity granted to them only later. Section 44 of the Youth Justice and Criminal Evidence Act 1999 would deal with that but has not yet come into force. The purpose of the final subsection of the proposed new clause in Amendment 48B is to deal with that. The third point, as the noble Lord explained, is to amend Sections 39 and 49 of the Children and Young Persons Act 1933 to establish that anonymity given to children should last beyond their 18th birthday unless there is a substantial reason why the position should be changed. That would be subject to an order of the court. In those circumstances, I invite the Minister to accept these amendments and ask the Committee to do so, too.
Lord Beecham
My Lords, it would appear that in this area, as in others, we are short of information about the number of cases in which young offenders are named. There does not appear to be a dataset indicating how many of these young people are being named and, apparently, has there been no research of any great depth on the impact of being named on such young offenders or their families—as my noble friend pointed out, particularly in relation to their siblings.
The UN Convention on the Rights of the Child, as long ago as 1989, stated that as well as the right to privacy, “best interests” of the child should always,
“be the primary concern in making decisions that may affect them”.
It is striking that, although it is a matter for the courts whether the child should be identified, the applications tend to be made by the media on the grounds of public interest. The capacity of the media to identify their interests with the public interest is of course unlimited, but in this rather sensitive area it might be thought that the principles of the convention should be taken a great deal more seriously. Some of the ways in which the media have portrayed young offenders, complete with photographs—my noble friend mentioned a case where a child’s photograph was prominently displayed—and emotive language such as how “young thugs” should be dealt with, are not conducive to meeting the requirements of the convention, which we should all respect.
I understand that the Government are looking at the existing law on reporting restrictions and had indicated that they would be coming to a conclusion some time this year. They may not have done so, but I do not know whether the Minister is in a position to indicate when that review might be completed. It would be helpful to the House to know when that might occur. In fact, the Government—I should, in fairness, say successive Governments—have not responded to the UN committee’s report, which is dated as long ago as 2008. In addition to the general principle to which I referred, that report made the strong point that respecting privacy should extend especially to avoiding messages that expose the child to shame and are against their best interests.
This is potentially quite a serious issue. From my experience as a councillor and, indeed, as chairman of the social services committee in Newcastle in the 1970s, I recall very well the famous case of Mary Bell, who was a young child when she committed offences that became notorious. Rather like the subsequent Bulger case—or rather, those who were guilty of killing Jamie Bulger—she became exposed to a great deal of publicity. That made assimilation into adult life extremely difficult for her, as it has for other defendants, it would appear, including those in the Bulger case. This is a very sensitive area in which we need a clear position from the Government in terms of a response not only to the amendment but perhaps more importantly to the UN convention requirements of as long ago as 2008.
Of course, there may be public interest in knowing what is happening, but a public interest in knowing does not necessarily amount to a matter of public interest. The two terms become confused. I hope that that is not the position that the Government ultimately end up with. There are clearly issues here that can have a long-term impact on young offenders. I entirely take the Minister’s point: the whole point of dealing with these young offenders is to ensure they do not offend again and can assume their place in society. We should not facilitate making that any more difficult by permitting disclosure when it is not necessary. I hope that the Government will look sympathetically at the amendment moved by my noble friend and respond to the long outstanding report and recommendations of the UN convention.
None of us would say that people—even young people—who commit serious crimes should not be punished or go through the processes that the law prescribes. They should not, however, be subjected to public obloquy in addition to that. It is rather disconcerting that, at the time of the riots in London a few years ago, the Home Secretary seemed keen to publicise the identity of some of those, particularly young people, who were involved in criminal and quite disgraceful behaviour. I think that many of us would feel that, in that sort of case and for that sort of young offender, publicity might be regarded as almost a badge of honour and is therefore not to be encouraged from any perspective. I hope that that situation will not recur. In the mean time, we have a number of offenders, some of whom are involved in very serious offences, whose anonymity has been done away with in a way that cannot be conducive to helping them to reform and to assume a normal place in society.
Criminal Justice and Courts Bill
Lord Marks of Henley-on-Thames Excerpts(10 years, 4 months ago)
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Lord Marks of Henley-on-Thames
My Lords, I rise to speak to the group of amendments to Clause 42. As the noble Lord, Lord Beecham, has made clear, Clause 42 proposes the imposition of the criminal courts charge to cover the costs of providing the judiciary and the rest of the court system. Such a charge is proposed, as he has also made clear, to be compulsory for offenders of 18 and over unless the offence is of a class listed in regulations as excluded.
I have put my name to a number of amendments, along with my noble friends Lady Hamwee and Lady Linklater, and in some of those we are joining with those proposed by the noble Lords, Lord Beecham and Lord Kennedy of Southwark. Our principal purpose in those amendments is to ensure that the criminal courts charge is recoverable on a discretionary basis. I put that quite apart from the arguments about whether the sums sought to be recovered will in fact be recovered and I agree with the analysis of the noble Lord, Lord Beecham, that the Government’s expectation in this regard is entirely optimistic.
Quite simply, we can see no point in setting out a requirement that the criminal courts charge be imposed in cases where it will not do any good and is unlikely ever to be recovered. It will no doubt be argued by my noble friend the Minister that the power to remit the criminal courts charge under new Section 21E at a later date, some time after it is imposed, will provide an answer to the point we make. However, I am bound to say that I doubt it will. Will the Minister clarify what the Government see as the point of imposing a mandatory requirement that a defendant pay a charge and coupling that with a power to let the defendant off the charge if he cannot pay it? In many cases, the reality is that the inability to pay the charge in the first place is obvious throughout.
That really is the problem. In a very large number of cases, there is absolutely no prospect that the criminal courts charge will prove to be recoverable. We entirely accept that in those cases where a defendant can afford to pay the charge because he or she is in work or has means, then the court should be able to impose one. The courts charge in those circumstances would make it clear to the defendant that the public insist that the cost of providing the services of the court should be met, at least in part, by the defendant. That would have two salutary effects in those cases. First, the public would recover some of the costs that have been defrayed in order to bring and prosecute the case. Secondly, the court would be making it absolutely clear to the defendant what trouble, inconvenience and expense he has caused, and that he should pay for at least some of the extra costs.
However, as we all know and as was made absolutely clear in Committee, many offenders come before the court without work and means, beset by complex problems of inadequate education, physical and mental health, harsh and criminal backgrounds, dysfunctional families and, above all, a lack of employment opportunities. What such offenders need, as has again been repeatedly stated, is rehabilitation and support. Generally, we are all agreed in this House that where a custodial sentence is not absolutely necessary, rehabilitation and support should take place in the community. One of the cardinal aims of any rehabilitation programme should be to enable offenders to secure employment. Until they do so, there is no prospect of their being able to afford to pay the criminal courts charge.
I suggest that saddling all offenders, regardless of circumstances, with outstanding debt is a thoroughly bad idea. I am concerned that the existence of an outstanding charge will make it much more difficult for an offender to secure credit. That, in turn, may make it that much more difficult for him to secure employment. Even if it is only that he needs to buy suitable clothes for interviews or perhaps a bicycle or other transport to get to work, he will not be able to fund them. Furthermore, the fact that such an offender has a charge hanging over his head is likely to be a disincentive to his securing employment because he will know that the repayment of the charge will come from any income he may earn. Now, that may be a less meritorious argument but it is none the less valid for that.
It is also important that the court should have the discretion to set the charge at an appropriate level. There is no such discretion in the proposal made in the Bill. Where the court decides to impose one, it should be for the court to set the level of the charge. It should not be a one-size-fits-all penalty, any more than a fine should be. Plainly, there must be a maximum. That is appropriately defined in new Section 21C as,
“the relevant court costs reasonably attributable to a case of that class”.
However, to say that a charge in that maximum amount is the only charge that may be imposed is unhelpful and unrealistic. It is not sensible to rely on a power—again, at a later date—to remit a proportion, because that involves effectively indicating to a defendant that some of the charge will not have to be paid. The advice will be: “If you cannot pay it all don’t worry, pay what you can and you will be let off the rest”. That is hardly an incentive to pay. It would be far better for the courts to set a sensible and achievable figure at the outset.
Turning to our amendments therefore, we would make the charge entirely discretionary. Our Amendment 63ABA would make it clear that the court would have to consider the justice of the case, having regard to the circumstance of the offender and of the offence and, where appropriate, to the circumstances of any failure to comply with the requirements of a court order. That last point is necessary to deal with the fact that the charge may be imposed for failure to comply with the requirements of a community order or a suspended sentence order or with a supervision requirement.
Amendment 63AFA would leave out subsection (4) at the end of page 41. That subsection rather strangely requires a court to leave out of account a defendant’s liability to the criminal courts charge when considering the penalty,
“for an offence or for a failure to comply with a requirement”.
I see no reason for that provision. If a court regards it as being important to bring home to a defendant the extent of the costs he has caused to the system, why should it not be free to impose a criminal courts charge and lower any other financial penalty accordingly? That salutary discretion is specifically removed by the subsection, and we suggest that it should therefore go. Amendment 63AM would enable a charge lower than the maximum to be imposed, while Amendment 63AN is a tidying-up amendment that would enable the court not just to remit some of the charge, but to remit any interest on the charge when remitting it.
In summary, our position is that a criminal courts charge will be a useful new tool in the court’s armoury when sentencing, but we do not see it as sensible simply to tie it to the overall cost of the justice system. We do not see any reason for tying the court’s hands in such a manner as inevitably to reduce its power to do justice in ways that are not tailored to the individual cases before it.
Lord Beecham
My Lords, I am struck by the direct relationship between the speed with which the Minister is racing through his brief and the embarrassment he no doubt feels at the material he is giving to the Committee. I cannot believe that the good and noble Lord is really convinced of the case he has been asked to put. That would not surprise me, because much of what we have heard is simply beyond credence. The noble Lord, Lord Marks, in a very powerful speech, made the essential point that—among other things—the court should have discretion on the amount. None of us is any the wiser about what kind of sums we are talking about. The Minister certainly has given no examples, except to say that it will be related somehow to the cost of the individual case. How is that to be calculated? On what basis will that be apportioned? Are we just talking about the cost of prosecution? That can be covered anyway, under the existing framework. Are we talking about a contribution to the cost of maintaining the court building or the cost of the judicial salaries in a higher court? There is no indication of how this cost is to be calculated and then passed on.
Equally, although the noble Lord rightly pointed out the provision in the Bill that the Lord Chancellor will prescribe the class of case to which the charge will apply, he has given no indication tonight—and I do not think that it was done in the other place either—of what kind of cases are envisaged. Why do we not know which cases are likely to be included? What will be the process, if any, for parliamentary approval of the classes as prescribed by the Lord Chancellor? Will Parliament be permitted any consideration in this, or will it simply be a matter of the Lord Chancellor’s fiat?
The Minister’s suggestion that it would be improper for the court to determine the amount because that would somehow reflect a vested interest on its part is simply risible. It is an absurd suggestion. The notion that magistrates or High Court judges will be influenced to make rather larger requirements of prisoners because that will somehow affect them, or the court system, is an insult to both the judiciary and the magistracy. It cannot be something that the noble Lord seriously believes. His scriptwriters need to go back to wherever they were taught their craft.
In addition, and worryingly, the Minister suggested that there is no deterrent effect because the charge will be imposed only long after a plea was entered. That is absurd. The fact that the court is in a position to impose a charge is known to the defendant before he appears there; it certainly ought to be. Of course, it may influence a defendant as to the nature of a plea, particularly in the case of an appeal.
Lord Marks of Henley-on-Thames
Is not the noble Lord slightly mistaken? It is the fact that the court is bound to impose the charge that is known to every defendant before they go into court.
Lord Beecham
I am not known for being mistaken, but I am happy to concur with the noble Lord’s judgment of me. However, I am not happy to concur with the Minister’s judgment of the situation because it is simply fallacious, particularly in relation to an appeal, when the costs will necessarily be significantly more than they would be at first hearing. Of course, appeals are not just confined to going from the magistrates’ courts to the Crown Court. There is also the question of an appeal from the Crown Court to the Court of Appeal and, I suppose, ultimately to the Supreme Court, the costs of which would presumably be unimaginable to an ordinary defendant.
In my view the Minister’s case is in tatters, but let me put a further point. If we are talking about the cost of the case and the cost to the courts, where is the logic in not extending that to the costs—I am now looking at the noble Lord, Lord Paddick—of the police force or the probation service, which might also be involved with a particular client? Why are we confining this charge to the court process? There is no logic to this at all.
We still do not know how the £65 million figure is computed. No doubt the Minister, in fairness to him, does not know either. I cannot imagine he has been supplied with the information. Even if that figure were right, it is something like 3% of the total amount outstanding. The noble Lord gave figures for the uncollected sums for two quarters of 2012. I think my figures were slightly more up to date, if they were correct. However, he did not answer the point—I do not blame him, because presumably nobody has told him—as to why the Ministry of Justice does not know how much has been outstanding for longer than 18 months. Is there an implication that, if money is outstanding for more than 18 months, it would be written off? That would be curious, in the circumstances. There is also the point that the charge will apply to those who are sentenced to a period of imprisonment, presumably to be met after they come out, no doubt as part of their rehabilitation. Does this make any kind of sense, I ask rhetorically? The Minister may think it does; there will be few in this House or outside who would agree.
Of all the misconceived and less than half-baked ideas we have seen in the Bill, this proposal must surely rank in the front line. It is simply appalling and I hope the Minister will use his long experience of these matters, as both an advocate and as a recorder, to persuade his ministerial colleagues, in particular the Lord Chancellor, that he is bringing the whole system into a serious collision with reality, one that will do no good to the defendants, to the court system, or, frankly, to the reputation of those who are putting forward these proposals. However, as we are in Committee, I will not press the matter tonight. It is very probably one to which I and others will wish to return on Report. I hope the Minister will use his influence with the Lord Chancellor to see that some significant changes, at the very least, are made to these appalling, deeply flawed proposals. I beg leave to withdraw the amendment.
Lord Hunt of Wirral (Con)
My Lords, I declare my interest as a practising solicitor and partner in the international law firm DAC Beachcroft and as chairman of the British Insurance Brokers’ Association, and I have other interests recorded in the register.
The “have a go” culture has infected our civil compensation system for far too long. Claimants—and it is always claimants—see that there is no real penalty for trying on either that they have been injured at all or a deliberate exaggeration of the symptoms that they have suffered. The advertising by claims farmers and solicitors has undoubtedly played a part in this. The adverts for personal injury and for financial mis-selling continue to give the impression of free money. The starkest example that I can immediately recall was a full-page advert last November showing simply a bundle of £50 notes done up in Christmas ribbon. We all recall those original adverts saying, “Where there’s blame, there’s a claim, and it won’t cost you a penny”.
That is why I welcome Clause 45 as part of the Government’s initiative to tackle this. I certainly support its introduction. Measures are, of course, already available to tackle the completely fabricated claim, but I fully support the idea that a claimant with a genuine claim who then dishonestly exaggerates it should put their whole case at risk. That, after all, is what would happen if one was unwise enough to put in a consciously exaggerated claim to one’s own insurance company. Why should it be any different if one proceeds with the same intent against another person’s insurance company?
I would like to hear more from the Minister on the choice of the phrase, “fundamentally dishonest”. I recognise that my noble friend has great experience of the English language, and I should declare an interest as having been for six years chairman of the English-Speaking Union, but, with due respect for his grasp of the English language, it seems to me that dishonesty is one of those absolute concepts: either you are dishonest or you are not, in the same way that you cannot refer to something as “very unique” or to someone as “slightly pregnant”. I know that a similar phrase was used in the Civil Procedure Rules following the seminal—perhaps I should now call it the “fundamentally seminal”—review by Lord Justice Jackson of civil legal costs, but I am not aware that it has been tested or scrutinised by the Appeal Courts as yet. I would welcome clarification from the Minister about the thinking behind the choice of this phrase.
I have received, no doubt like other noble Lords, material from those representing claimant personal injury lawyers who have expressed concern that this measure might go too far. I cannot agree with that. If a claim is brought which contains a dishonest element—and dishonest always means that there is proof of a deliberate intent to deceive—then that behaviour should rightly put the whole claim at risk. The effect of this clause is clearly a deterrent one which, as I have already explained, I strongly welcome.
It might be helpful to point out to noble Lords that Clause 45 is not unique—not even slightly unique—because an analogous provision can be found in Ireland, in Section 26 of its Civil Liability and Courts Act 2004. There, any plaintiff, as they are still called in Ireland, who knowingly gives false or misleading evidence will find their claim dismissed in total. The test is simply one of dishonesty rather than fundamental dishonesty. If there is a fear that the power in Clause 45 would be abused by overzealous defendants, the experience of more than 10 years in Ireland proves otherwise: the courts are alert to any attempts to abuse a provision that is expected to apply in only a small number of cases, and of course if the clause truly has a deterrent effect, it should mean fewer cases coming to court in the first place.
Let me finish by illustrating the concern over “fundamentally dishonest” with a stark example that was recently brought to my attention. It was a case tried in Stoke-on-Trent County Court earlier this year. Mr Steven Cotton is a 31 year-old heating engineer who now lives in Swadlincote, Derbyshire. In December 2008, he sustained an injury to his neck and shoulder while at work. It was frankly a modest injury and he was able to go back to work the following month, in January 2009, before a disciplinary matter at work intervened. At that point, he decided to bring a claim against his employers and to include in that claim an allegation of a lower-back injury. Matters progressed and, just a few months before trial, he put in a claim schedule for in excess of £1 million, despite his solicitors, Woolliscrofts in Stoke, being aware of video surveillance evidence showing Mr Cotton as being much less disabled than he was making out. I understand that the insurers facing this claim, AXA Insurance, were not impressed. They rightly defended the case to trial and the judge agreed that Mr Cotton had invented the lower-back injury as a deliberate exaggeration of his genuine neck and shoulder injury. The judge awarded Mr Cotton just over £18,000 for the genuine injury, which was less than 2% of the amount that he had falsely claimed, plus some of his solicitor’s costs. One might think that this degree of exaggeration would be enough to knock out the entire claim but, sadly, it was not so. On the one hand, Mr Cotton’s case is a classic example of why the clause is badly needed. On the other hand, it raises a question in my mind as to whether the addition of a second injury to an already genuine injury would be seen by the courts as fundamentally dishonest. The court in Stoke stopped short of declaring that Mr Cotton’s lower back injury was not a genuine medical condition, despite the surveillance evidence. I have a real fear that Mr Cotton might still be awarded damages after the new clause comes in when all right-thinking people would agree that someone whose claim had already been knocked out to the extent of 98% not being allowed should not receive a penny.
I turn to the second amendment in my name: Amendment 63FE. To me, the meaning of subsection (5) of Clause 45 is unclear. Subsections (2) and (4), for example, impose obligations on the court to follow a particular line of conduct by use of the word “must”. In contrast, subsection (5) is different in tone and appears to offer more leeway. I hate once again to split linguistic hairs with the Minister, but I would like some clarification on whether subsection (5) is really intended to be a discretionary “may”. I reassure noble Lords that there is some substance behind the point I seek to make. Subsection (5) appears to limit the legal costs consequences of a claim being dismissed in its entirety under the clause by restricting the costs award that could be made to the defendant to a sum net of the damages that would have been awarded to the claimant if he had pursued an honest claim. I wonder whether there is even a risk that subsection (5) simply undoes the good work of the rest of the clause. The dishonest claimant who is found out ends up paying his opponent’s cost but is able to offset the money he has forfeited by his dishonesty. To return to the example of Mr Cotton, he would still, in effect, get credit for the £18,000 awarded for his genuine injury. Does that not encourage the likes of Mr Cotton to have a go at the expense of insurers, which is where I was when I started? I beg to move.
Lord Marks of Henley-on-Thames
My Lords, I rise to speak to Amendments 63FDA to 63FFA. I do so with some diffidence because, in part, I disagree with my noble friend Lord Hunt. After the humorous and intelligent way in which he introduced his amendment, and given that I agree with a great deal of the sentiment he expresses, I am concerned about the extent to which I disagree with him.
I agree with my noble friend that there has been a culture of “going for it”. There has been an outbreak of “compensation-itis” that we no doubt acquired, in part, from the United States and which has bitten particularly deep into the culture of people who have had motoring accidents. I greatly agree that something needs to be done. The question is whether the clause does what needs to be done in the way it needs to be done.
As my noble friend explained, Clause 45 deals with claims for damages in personal injury cases where the claimant is guilty of fundamental dishonesty in the prosecution of his claim. Clause 45(2) provides that,
“The court must dismiss the primary claim”—
that is, the claim for damages—
“unless it is satisfied that the claimant would suffer substantial injustice if the claim were dismissed”.
The question I seek to pose is how far subsection (2) would leave judges free to do justice.
In my view, the subsection works against the interests of justice, or certainly risks doing so, in two ways. The first is by imposing a presumption in favour of dismissal, subject to a modest saving provision that, frankly, is difficult to understand. I am not sure I agree with my noble friend Lord Hunt that the word “fundamentally” adds nothing, but I certainly am of the view that the saving subsection,
“unless it is satisfied that the claimant would suffer substantial injustice if the claim were dismissed”,
is very difficult to understand. On one view of justice, and the view of justice which appears to be intended by the proponents of the clause, if there is dishonesty, it is not unjust for the whole claim to go. If that is the meaning, how does the saving provision come in at all? If, on the other hand, it means that the interests of justice seem broadly to require the claimant still to get some of his damages, does that amount to a duty to dismiss or is it merely a power to dismiss, which is what my amendments are directed to?
Criminal Justice and Courts Bill
Lord Marks of Henley-on-Thames Excerpts(10 years, 4 months ago)
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Lord Marks of Henley-on-Thames (LD)
My Lords, I oppose Clause 25 standing part of the Bill. The clause would make a custodial sentence compulsory in the case of a second offence of possession of a knife in a public place. The sentence would be a compulsory minimum of six months in prison for offenders over 18 and of four months’ detention in the case of 16 and 17 year-olds. The clause was introduced into the Bill in the House of Commons by an amendment moved from the Conservative Benches by my honourable friend Nick de Bois. It was not supported by the Government and, indeed, Conservative Ministers abstained on it. I rather hope that my noble friend and other Conservative Ministers will abstain in this House.
Our reasons for opposing this clause in the House of Commons and again in your Lordships’ House are fourfold. First, mandatory minimum sentences are wrong in principle in all but a few special cases, because they remove judicial discretion and fail to allow for individual circumstances. Secondly, the clause is unnecessary, because knife crime is already falling, and runs counter to the aim of rehabilitating offenders. Thirdly, the clause would risk doing real harm to those affected by it, because many who should not be in prison would be imprisoned, damaging large numbers of principally young lives. Finally, the clause would be discriminatory in its effect, even if that is not the intention of its promoters, and so would risk doing serious damage to community relations in this country.
My first reason is one of principle. Determining sentences is generally far better left to judges. Our judges in the criminal courts hear the evidence in individual cases and fully take into account all the facts, including the circumstances of the offence and of the offender, before passing sentences. Obliging judges to take a course that they would not otherwise take necessarily involves forcing them to impose a sentence which they would consider unjust.
We completely agree with those who support the clause that knife crime is extremely serious, that everything should be done to discourage it and that in very many cases, particularly when an offence is repeated, possession of a knife in public will warrant a sentence of imprisonment. In those cases, judges can and do impose custodial sentences. They can, indeed, be legitimately encouraged to pass custodial sentences in such cases in sentencing guidelines. However, if they decide not to pass a custodial sentence in a given case, that is because they regard one as unnecessary, unwarranted or unjust. If the clause is intended to have any practical effect—if it is more than pure posturing—that effect would be to oblige judges to pass a custodial sentence when they would not otherwise do so. There is absolutely no evidence that our judges get this wrong or that they are, in some way, a soft touch and fail to impose custodial sentences when the public interest or justice demands that they should do so. The clause would be an entirely unwarranted restriction on judicial discretion.
That leads to my second reason for opposing the clause, which is that it is unnecessary. Knife crime is falling. The Crime Survey for England and Wales indicates a continuing reduction in crime overall and in crimes of violence in particular, including knife crime. I would suggest that this is one of the significant successes of the Government, all the more remarkable for being achieved against the background of very difficult economic circumstances. The number of young people in custody has fallen to a record low. In May this year, there were fewer than 1,100 young offenders in custody under the age of 18—a fall of no less than 200 from a year ago. The number of 18 year-olds in custody also continues to fall. Parliament and professionals in the criminal justice system have been working very hard and successfully to reduce the numbers of young people in custody. This has been a continuing theme of this Government’s drive to push down crime: rehabilitation to reduce reoffending, and helping young offenders in particular to get away from crime and criminals and lead law-abiding and useful lives. This has been the very point of the rehabilitation revolution and was at the heart of the Offender Rehabilitation Act that we passed this year.
Lord Faulks
There were quite a number of interventions. I will endeavour, very briefly, to say what I can within the terms that I speak today. On the question of sentencing guidelines, they are of course changed from time to time. It is a matter for the House to consider whether sentencing guidelines are an appropriate way to deal with this or whether it is more appropriate to use the clause as it currently appears in the Bill—whether that is called sending out a message, providing a deterrent or whatever construction one places upon that particular clause.
As to all the other matters, there is no question of a Liberal Democrat plot. I readily concede that this is an unusual situation. However, I am simply not in a position to say more than I have in answer to the various questions raised, except to say this: the issue for the House is fairly before the House, as brought by my noble friend Lord Marks, and it is whether the clause currently in the Bill should stand part.
Lord Marks of Henley-on-Thames
My Lords, this has been an important debate. It has been a serious and sober debate. I agree with the noble and learned Baroness, Lady Scotland, on that point. It has also not been a political debate in the sense that noble Lords on all sides have spoken both ways. My understanding of the Government’s position is that the position of Conservative Ministers remains as it was in the House of Commons; they will not support the clause as it stands, as inserted by the Back-Bench amendment; nor will they oppose it.
However, the position is that everyone in this House is agreed that we cannot, do not and never will condone knife crime. We all share the aim of driving knife crime down. I listened carefully to the points made, particularly those made by my noble and learned friend Lord Mackay of Clashfern, the noble and learned Lord, Lord Hope, and the noble Lord, Lord Blair. All of them of course have enormous experience of the criminal justice system. Other noble and learned Lords, notably the noble and learned Lord, Lord Woolf, spoke the other way.
The points made against me and in favour of Clause 25 principally concern deterrents and sending a message. However, what has been entirely unclear is the notion that there is clear evidence that a message and deterrence are better sent by a mandatory provision in a statute than they could be by judges exercising their discretion—going on television if necessary, as the noble and learned Lord, Lord Hope, described; by action outside Parliament, as the noble Lord, Lord Purvis described; or by sentencing guidelines, as the noble and learned Baroness, Lady Scotland, suggested, supported by the noble Lord, Lord Carlile.
Sentencing guidelines are daily used and daily applied, but they do not remove judicial discretion to sentence appropriately, departing from the guidelines where that is the right and just thing to do. I do not believe that deterrence by a mandatory provision in a statute is proven to have any beneficial effect at all. I believe that a mandatory provision for minimum sentences in a statute, to be imposed where judges would not—when wishing to do justice—otherwise impose them, removes judicial discretion and inevitably does injustice in a number of cases. For those reasons we oppose this clause.
Your Lordships have also heard the extent to which the clause is defective. It is not supported by either of the parties of Government. It is not supported by many of great experience who have spoken from the opposition Benches. It is not supported by many of those who have spoken from the Cross Benches. The Motion will be that this clause stands part of the Bill. I urge noble Lords to oppose the Motion and vote not content. I wish to test the opinion of the House.
“Offence of publishing a sexually explicit or pornographic image without consent
(1) A person commits an offence if they publish a sexually explicit or pornographic image of another identifiable person (whether or not that person is engaged in a sexual or pornographic act), unless—
(a) the identifiable person consented to publication;(b) the person who published the image reasonably believed the identifiable person would have consented; or(c) the person who published the image has reproduced an image that has already been published by another person. (2) For the purposes of this section it is immaterial who owns the copyright of the published image.
(3) In this section “publish” means to reproduce, share or otherwise distribute an image via the internet or other means.
(4) In this section a person is an “identifiable person” if—
(a) their face is displayed in the image;(b) any other identifiable characteristics are displayed in the image;(c) their name is displayed on, or otherwise connected to, the image; or(d) the image contains any other information by which the identity or address of the person could reasonably be ascertained.”
Lord Marks of Henley-on-Thames
My Lords, the term “revenge pornography” refers to the publication, usually but not always, on the internet, of intimate images of former lovers without their consent. This thoroughly nasty behaviour generally involves the perpetrator in taking advantage of his or her possession of sexually explicit images, generally taken or obtained in private during the course of an intimate relationship in circumstances where the parties, and certainly the party photographed, had every right to expect that the images would remain private.
Obtaining such images has become more common and much easier with the prevalence, popularity and sophistication of smartphones, with their ability to take or record high quality images, still and video, instantly and simply, with accompanying sound in the case of video. It is set to become even easier to take such images with the advent of cameras installed in glasses and yet further improvement in high definition video cameras in phones.
The widespread publication of such images causes, and is generally intended to cause, distress, humiliation and embarrassment for the victim—hence the name “revenge porn”. She or he—the victims are usually but not exclusively women—face the humiliation of their most private moments being exposed to family, friends, employers and the world at large. It is entirely predictable that such exposure can cause serious psychological and emotional damage even to those with robust personalities. Suicides as a result of such publications have been recorded. Worse still, the damage may often be increased because it follows the trauma of relationship breakdown and is caused by someone with whom the victim had previously been close. Publication can cause havoc in personal and family relationships and in relationships at work. The betrayal and the hurt it causes could hardly be worse. Such behaviour has been characterised by academics in the field as a form of abuse and I suggest that such characterisation is entirely accurate.
I have no hesitation in concluding that this practice should be criminalised and in asking your Lordships to pass legislation accordingly. I was therefore extremely pleased that in response to our Second Reading debate my noble friend the Minister indicated that the Government would be open to amendments of this Bill to that effect. I was also delighted when my noble friends Lady Berridge and Lady Morris of Bolton laid their Amendment 40, which is also in this group. I hasten to add that in my view there is neither magic nor any monopoly of wisdom in any particular wording. The point is to secure legislation to criminalise such behaviour with the most appropriate statutory language that can be found. I would mention, however, that I do have some concerns about my noble friends’ formulation of the proposed offence, to which I will come in a moment.
Lord Marks of Henley-on-Thames
My Lords, I am grateful to everyone who has spoken in this debate, and to the Minister for his strong indication that legislation will be forthcoming. It is clear that there is consensus on the nature of the problem and on the proposition that legislation is required to deal with it. I entirely accept the point of the noble Baroness, Lady Kennedy, that it is important not to set the hurdle too high by requiring the motivation to be established. Our amendments did not do that. I also entirely accept the point made by my noble friends Lady Berridge and Lady Morris of Bolton that it may be sensible to record this as a sexual offence, to enable the consequences of it to be followed through.
I also take the point the Minister makes—that some offences already capture some elements of this kind of behaviour. However, he plainly accepted that this is not true of all such behaviour and, because the offence is so unpleasant and the consequences so bad, it seems clearly proved that we need a separate offence. I look forward to us all co-operating and trying to word this appropriately. I beg leave to withdraw the amendment.
Criminal Justice and Courts Bill
Lord Marks of Henley-on-Thames Excerpts(10 years, 4 months ago)
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Lord Hodgson of Astley Abbotts (Con)
My Lords, my Amendment 42H is in this group, which I tabled in a rather more inquiring—and perhaps a rather less decided—frame of mind than the noble Lords, Lord Beecham and Lord Ramsbotham. I am not yet certain that there is not a role for new thinking on some commercial operations in these new institutions. I begin by apologising to the House for not having participated in proceedings on this Bill so far.
Amendment 42H is concerned with ensuring a high-quality educational experience for young people in these new institutions. As we have heard, this links into Amendments 44A, 44B and, to a lesser extent, Amendments 47 and 48. My interest in this topic comes from my involvement with the all-party parliamentary group on prisons, of which the noble Lord, Lord Ramsbotham, is the chairman. From time to time, the group hears presentations which are exceptionally powerful and persuasive. The presentation of relevance to my being here tonight was given by the Prisoners’ Education Trust, with whose help I have tabled this probing amendment.
It is, I think, generally accepted that having somewhere to live and a job to go to are the most significant factors in reducing reoffending. As a subset of this, research shows that the higher the level of educational achievement, the higher the likelihood of finding employment. Therefore, I entirely endorse, and very much welcome, the Government’s commitment to improve the educational journey for young offenders. This probing amendment is designed to discover how things will work at a practical level in the context of the secure colleges that are proposed to be established under Clause 29.
It seems to me the first set of challenges revolves around location. Noble Lords have pointed out that young offenders in larger secure colleges may well be at some distance from the homes to which they will return at the end of their sentence. How will the continued education of those young people be linked into their local authority and/or other community support programmes? In addition, given the recognition of the useful role that release on temporary licence plays in rehabilitation, which seems to me entirely sensible, how will that fit in with a continued and progressive educational experience?
Secondly, within the institutions themselves, there seems to be a number of challenges to providing this worthwhile educational experience. As the noble Lord, Lord Beecham, said, there is the shifting nature of the population, with young offenders arriving and departing in a way that may be educationally disruptive and not at all helpful to a scholastic timetable. As the number of young people in custody decreases, there is also the likelihood that the residual number may be particularly disturbed and troubled, and therefore the emergence of gang culture may well become prevalent. It would be helpful if the Minister could give us his thoughts on how that could be tackled, and whether there are sufficient resources so to do.
Of course, one way to address these various challenges would be to increase the use of IT-based distance learning. It is a field which continues to develop very quickly. New IT approaches can capture the imagination of young people in a way that the more conventional pedagogic approach does not, and can therefore play a valuable role in supplementing the latter, more formal approach. Further, an online tutor could also help overcome the problems of transitioning to the community from the secure college. However, I am given to understand—the Prisoners’ Education Trust is concerned about this—that the Government have reservations about increasing these young people’s exposure to distance learning. Will my noble friend tell the House whether this revolves around the cost of the system, the availability of suitably trained personnel or, perhaps more prosaically, issues of IT security?
As I said at the outset, I am convinced that improving educational performance provides a significant chance of reducing reoffending among young people. Therefore, I welcome the Government’s commitment to it. It will require some fresh organisational thinking, which is why I think commercial activities might be helpful—especially, as we have heard already, in the context of these larger secure colleges.
To address this, my amendment proposes a requirement to establish an individual learning plan. In turn, the construction of the ILP will have to involve all relevant bodies, statutory and non-statutory. It will require the assessing of the individual’s prior educational achievement and, finally, a path for that individual’s future demands. In the amendment I argue that this customised approach is likely to provide the most efficient and cost-effective way forward.
Lord Marks of Henley-on-Thames (LD)
My Lords, in this group I speak principally to Amendment 43C in my name, and in the names of my noble friends Lady Linklater, Lord Carlile and Lord Dholakia.
In spite of the comment of the noble Lord, Lord Ramsbotham, to the effect that our amendment was unduly complex—
Lord Marks of Henley-on-Thames
I am very grateful: I certainly heard “complex” and was slightly surprised, because I have support from the Back Benches. I thought that we were rather saying the same things. A feature of this debate is that all the amendments in this group, including that of the noble Lord, Lord Hodgson of Astley Abbotts, have been directed really towards the same concerns and issues.
Since the proposal for secure colleges was published as part of the Bill it has provoked a great deal of public and well informed criticism. For my part, I am indebted to the Children’s Rights Alliance for England, the Howard League for Penal Reform, the Standing Committee for Youth Justice and others for their advice, for full and well informed briefings, and for meeting me.
We have sought in our amendment to set out two mandatory principles, the need for which we now consider is firmly established, and a number of aims that we believe the Secretary of State must strive to meet if the proposal for secure colleges is to be implemented. We completely agree with the aim of the Secretary of State to ensure that young people in custody enjoy full educational opportunities. He is right to start from the position that the involvement in education of many of our young people in custody has in the past been minimal and their educational attainment virtually negligible. If we are to address their criminality, a good starting point is to try to give them some genuine education from which they may benefit in their future lives. The question is how we achieve that effectively.
We are concerned that the idea that we could somehow create on a residential basis in the prison estate large but secure colleges with some resemblance to schools may be misguided and unrealistic. As I mentioned earlier today, the number of young people now in custody is below 1,100. On all the best evidence it is simply inappropriate to attempt to contain large numbers of those young people together, regardless of gender and age. As has been repeatedly emphasised in this debate and at Second Reading, young offenders in detention represent a group of young people with a mixture of diverse and serious problems.
The first subsection of our proposed new clause would therefore provide the two mandatory points mentioned: that secure colleges may not be used for the detention of girls or persons under the age of 15. The evidence has satisfied us that it is simply unsafe to mix boys of all ages from under 15 to 18 together with girls in custody in one institution. Given all the evidence, we cannot believe now that the Government would wish to proceed on any other basis. I invite the Minister to confirm as soon as he can that that is the position.
Our second subsection is designed to ensure that the welfare of persons detained in any secure college has to be the primary consideration that the Secretary of State will have in mind in making any decisions that affect the lives of those in custody. In one sense, that may be obvious, but we feel it should be clearly stated in the Bill.
Our third subsection, comprehensive or complex as it may be, sets out a number of aims that the Secretary of State should be required to keep at the forefront of his mind when setting up and providing any secure college. I do not shirk from saying that I fear that many of these aims are incompatible with what we understand to be the Government’s present intention to establish a large, secure college in the Midlands housing nearly one-third of all young offenders currently in detention.
The first consideration must be the provision of a safe and secure environment for all those detained in secure colleges. The next aim must be that any secure college is of an appropriate size. Having considered the question of size, I now have no doubt that what we mean by “appropriate” is “small”. All the evidence we have considered suggests that a small institution capable of giving young offenders individual attention is essential to rehabilitation and educational attainment.
We also believe that it is very important that young offenders are detained close to home. Their families should be able to visit them and stay overnight if necessary. We have stressed throughout this Parliament the importance of rehabilitating young offenders within their communities specifically so that upon release they may come out and rejoin their families, friends and communities with some hope of local employment to come. Education in custody should be directed to that end.
One aspect of the current proposal for secure colleges that causes us concern is the idea that young offenders may be moved miles from their families, which could prove profoundly damaging. An associated concern that follows from that is that supervision before and after release, which we have made a priority, will lack the continuity that we have promised. If an offender is in custody, as is proposed, in an institution near Leicester and is to be released to Cornwall, it is unlikely that there can be any meaningful continuity of supervision.
Furthermore, we believe that if secure colleges are to achieve what they set out to achieve, real thought needs to be given to the type of educational opportunities that can realistically be offered. It is bound to be very difficult to provide suitable courses for young offenders who are sentenced at different times, due to be released at different times and sentenced for different periods. The noble Lord, Lord Beecham, mentioned that 79 days is the average period in custody. We cannot imagine that courses can be arranged that will meet the needs of more than a very few offenders at a time. Given what noble Lords have said, I ask my noble friend to elucidate what the Secretary of State has in mind. The question of distance or online learning raised by my noble friend Lord Hodgson of Astley Abbotts may well merit further consideration.
There is also the question of outdoor and sporting facilities and facilities for indoor recreation. It is crucial that the recreational needs of these young people be catered for. In the proposed very large pathfinder secure college, we are concerned that these facilities may be, if not entirely, at least very largely, lacking.
There is considerable concern, which has been mentioned by other noble Lords, about staffing and the need for staff with specialist training across a range of skills: not just teachers but counsellors, medics and others. My noble friend needs no reminding that many of the young offenders detained in these colleges will have special educational needs. Many of them will also have particular problems relating to their physical and particularly mental health. A number of young offenders have problems arising from drug or alcohol abuse; many come from profoundly dysfunctional backgrounds, many from criminal families. These issues need careful and focused personal attention. Will a secure college environment, as is proposed, be able to meet these needs?
Our final proposed new subsection would require the Secretary of State to consult the Youth Justice Board as to how the aims that we have set out might be achieved. I fear that there is a great deal of work to be done. We doubt that the present proposal can in its present state properly proceed, and we urge the Secretary of State to ensure that all decisions in this area are firmly based on sound evidence and good advice. The rehabilitation of young offenders is too important to be the subject of a gamble on a less than fully developed idea.
In summary, we fully support the Government’s aim to provide more and better education in custody, but we doubt that the present proposals for secure colleges have any realistic prospect of achieving it.
Lord Marks of Henley-on-Thames
My Lords, my noble friend Lady Linklater spoke to Amendment 43B as if it were part of this group. There is nothing more that we wish to say on that amendment, which is in a further group, and because of the time I wonder if the Minister could indicate if he has anything special to say about it, subject to anything that the Labour Front Bench wishes to say.
Lord Faulks
I am happy to deal with that amendment; in the interests of economy, that seems a sensible suggestion. The amendment raises a concern about how the enhanced and tailored provision offered by a secure college might influence the behaviour of the courts when making sentencing decisions in respect of children and young people—so-called up-tariffing, as it has been referred to in other contexts.
We have seen a fall in the number of children and young people sentenced to custody in recent years. I hope noble Lords will be reassured that statute and international convention already provide that a custodial sentence must be imposed only as a measure of last resort. Statute provides that such a sentence may be imposed only where the offence is,
“so serious that neither a community sentence nor a fine alone can be justified”.
That is referenced in the Sentencing Guidelines Council’s current guideline, Overarching Principles—Sentencing Youths, which goes on to explain that even when a threshold for a custodial sentence is crossed, a court is not required to impose it. Before deciding whether to impose a custodial sentence on a young offender, the court must ensure that all statutory tests are satisfied, taking into account the circumstances, age and maturity of the young offender. Those tests are that the offender cannot properly be dealt with by a fine alone or by a youth rehabilitation order; that a youth rehabilitation order with intensive supervision and surveillance, or with fostering, cannot be justified; and that custody is a last resort. To demonstrate that the statutory tests have been followed, the court must, in addition, state its reasons for being satisfied that the offences are so serious that no other sanction is appropriate other than the custodial sentence.
As regards the length of the sentence, the court, again by statute, is required to set the shortest term commensurate with the seriousness of the offence, and those overarching principles I referred to earlier set out guidance on how the judiciary should approach deciding the length of the sentence for children and young people. Furthermore, courts will no doubt be aware that due to the variation in needs and vulnerabilities among children in custody, there is a range of provision. They certainly should be aware. As my noble friend Lady Linklater will know, there are secure children’s homes, secure training centres and young offender institutions, as well as, in future, we hope, secure colleges.
When sentencing children and young people, the court can determine only the type of sentence to be imposed and its length. The decision on which type of establishment a child or young person is placed in is taken by the Youth Justice Board for England and Wales, rather than by the court. Its experienced placement service considers factors specific to the young offender—for example, their age and needs.
Finally, the noble Baroness noted that the amendment would have the wider effect of fettering the discretion of the independent Sentencing Council by stipulating precisely what its guidelines should say. That is a road which I am sure noble Lords would not wish us to go down.
I hope, therefore, that I have assuaged noble Lords’ concerns sufficiently for them not to press this amendment also.
Lord Marks of Henley-on-Thames
My Lords, Amendment 42L is merely formal. This group refers to the use of force in the secure colleges, and in particular to force against young persons detained there.
Amendment 42M, which is not purely formal, would require the secure college rules, in so far as they authorise the use of force against young offenders—it is much narrower than the other amendment relating to procedure—to be made by statutory instrument under the affirmative rather than the negative procedure. Under this amendment, it would also be a requirement that the Secretary of State should consult on the proposed secure college rules with the Youth Justice Board and the Independent Restraint Advisory Panel before laying a draft before Parliament.
The requirement for an affirmative resolution for secure college rules authorising force was a recommendation of the Delegated Powers and Regulatory Reform Committee, on which I serve. The recommendation was made notwithstanding that other prison rules—even for young people, as my noble friend has pointed out—are subject to the negative procedure. However, these are extremely important rules concerning the use of force against children. The committee was very influenced by the clear views of the Joint Committee on Human Rights and the decision of the Court of Appeal in 2009 in C v the Secretary of State for Justice that the proposals for the use of force for the purpose of maintaining good order and discipline were, as they stand in the Bill, inconsistent with Article 3 of the European convention.
The provisions authorising the use of force in the Bill for contracted-out secure colleges are indeed profoundly discouraging. As I mentioned, force is to be permitted to be authorised for purposes which include ensuring good order and discipline on the part of inmates and attending to their well-being. These purposes are far too wide. They smack of a military origin and are out of sympathy with contemporary views on the restriction of the use of force against children. Your Lordships will wish to be extremely vigilant where we are concerned with the authorisation of such force. We accept the Joint Committee’s clear view that the proposed authorisation of force would infringe Article 3.
Contemporary views on the use of force against young people are that the correct way to frame such authorisation is to ensure that the force used is minimal and restricted to what is absolutely necessary. Our Amendment 42N attempts to achieve this and its purposes are restricted by reference to five conditions. It says that,
“the first condition is that the force is authorised only for the purpose of … self-defence or the protection of others, including the protection of the person against whom the use of force is authorised … the prevention of serious damage to property”,
preventing escape and carrying out an authorised search. The second condition, which is crucial, is that force can be authorised for use only “as a last resort”. The third is,
“that the force authorised must be the minimum necessary to achieve the purpose”.
The fourth is that the force must be used,
“for the minimum duration necessary to achieve”,
that purpose, and the fifth is that the force should be,
“limited to techniques forming part of an approved system of restraint”.
We have added to that a requirement that:
“Secure college rules must provide that”,
all those who are “authorised to use force” should have been properly trained,
“in the use of force and in minimum restraint techniques”.
This represents a sensible contemporary view of the appropriate authorisation of the use of force in such colleges as are proposed for the restraint of young people. We contend that these restrictions should appear on the face of the legislation, in the terms that we have described. I beg to move.
Lord Ramsbotham
My Lords, I shall speak briefly to Amendments 46 and 46A in this group. All I want to say is that I for one simply do not understand why there is any need to have this proposal in here, when already there has been an independent review of restraint in juvenile secure settings, which was chaired by the previous chairman of the Royal College of Psychiatrists. She was a most eminent adolescent psychiatrist and she produced what were called minimum rules, which were published by the previous Secretary of State. If minimum rules for the use of restraint in secure children’s settings have already been produced by a Secretary of State, I simply cannot see why there is any need to go down this route, which seems to be an own goal of monumental proportions when there is already something to prevent you even being on that pitch.
Lord Marks of Henley-on-Thames
My Lords, I am grateful to my noble friend for the response he has given. It appears, at least in principle, that all the conditions we set out in our amendments are accepted by the Government. We want to see some security about the future implementation of those conditions. However, we understand that the Government’s position is sympathetic to what we say. Saying that, I beg leave to withdraw the amendment.
Criminal Justice and Courts Bill
Lord Marks of Henley-on-Thames Excerpts(10 years, 4 months ago)
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Lord Lloyd of Berwick (CB)
My Lords, for the reasons that have already been given, I support the amendment and I do so all the more willingly because it is very similar to an amendment which I tabled two years ago when we were debating the LASPO Bill. A very significant difference between the two amendments is that I thought that the review should take place after 30 years rather than 25 years. My reason was that 30 years is one of the starting points for determining tariffs under Schedule 21. A defendant with a 30-year starting point and no mitigating or aggravating features would look forward to a review after 30 years but not before. It would not particularly make sense that a whole life prisoner should have a right of review after 25 years when one with a 30-year starting point would have to wait for 30 years, but that is a small detail.
The debate on my amendment took place on 9 February 2012, at col. 390. There were 12 speakers on that occasion. All, except the noble Lord, Lord McNally, supported the amendment. The only reason which the noble Lord gave for not supporting the amendment was that the public was not yet ready for it and, for that reason, the other place would not accept it and there was no point in it passing through this House. During my reply, he said that it would be easier to reach unanimity if we could arrange a joint meeting of both Houses. That is exactly what has now happened in the sense that we have the Joint Committee on Human Rights, which includes Members from the House of Commons and the House of Lords. So far as I know, there was no dissentient voice from any Member of the Commons. Perhaps we may put that objection on one side.
Until 2003, there was no doubt that exceptional progress in prison qualified a lifer serving a whole life tariff for a review after 25 years. Somehow, that right was overlooked when the 2003 Act was being pushed through Parliament. There was no evidence that I know of that the right of review after 25 years was causing resentment or was in any way unpopular with the public. Certainly, those serving these sentences had done nothing that I know of to forfeit the right which they then had. For my part, I cannot believe that anyone in government made a conscious decision to remove this right. It seems almost inconceivable that they would have done, but there we are. All we seek to do in this amendment is to restore to these prisoners a right which they have lost, so far as I am concerned, for no apparent reason.
There are other equally strong arguments to support the amendment. Prisoners serving tariffs of 20 or 30 years are entitled to a review after they have completed their tariffs. It gives them light at the end of the tunnel and provides them with a reason for making progress if they can. In those cases, the review is justified both on practical grounds and on humanitarian grounds. Will the Minister say why those reasons precisely do not apply to those serving whole life sentences? One might think that it should apply all the more so. It cannot be that they are being deprived of this right for some symbolic reason, but if that is the case I would be very glad to hear about it.
I could understand if the Minister said, like the noble Lord, Lord McNally, that this amendment would never be accepted at the other end of the corridor, but I would have no sympathy with him at all if he said that we should wait until the Supreme Court has decided the appeal in McLoughlin. The decision in Vinter is clear: a life prisoner is entitled to know at the start of his sentence what he has to do to qualify for a review after 25 years. It is equally clear that exceptional progress in prison would be a qualifying ground. But Section 30 of the 1997 Act provides that a prisoner can be released only on “compassionate grounds”. A prisoner who has earned his review by making exceptional progress is not being released on compassionate grounds in any ordinary sense of that term. Whatever the Supreme Court may say, we will need primary legislation to change the word “compassionate” or make clear what the word “compassionate” means. I would have thought that we would need a different word or an additional word. That will require primary legislation. I see no reason to wait until the Supreme Court has expressed a view. Indeed, if we had the primary legislation now, maybe there would be no need for a hearing at all. We should, in my view, grasp the nettle now. That is why I support the amendment.
Lord Marks of Henley-on-Thames (LD)
My Lords, I add only this to the point made by the noble and learned Lord, Lord Lloyd, in answer to my noble friend Lord McNally’s response. Not only is the Joint Committee on Human Rights composed of Members of both Houses, but members of all parties agreed unanimously on this report. My reasons for supporting the amendment are threefold. First, it is a matter of simple humanity. Secondly, I agree again with my noble friend Lord Lester and the noble and learned Lord, Lord Lloyd, that I do not believe the decision of the Court of Appeal in McLoughlin has put the current position in English law beyond doubt in the light of the clear decision of what is required by the Grand Chamber of the European Court of Human Rights in Vinter. In any event, it is for Parliament to make the law clear on this issue. Thirdly, our obligation to honour our treaty commitments is an absolute one that must not be shirked.
My first point is the point of substance, independently of the convention: a whole life tariff without the prospect of review is incompatible with a humane approach or human rights-based approach to punishment. I remain firmly committed to the principle that one of the primary purposes of punishment is rehabilitation. This is embodied in statute law by Section 142 of the 2003 Act, which is the very Act on which whole life sentences are based. That provides, under the heading “Purposes of sentencing”, that:
“Any court dealing with an offender in respect of his offence must have regard to the following purposes of sentencing”,
the third of which is;
“the reform and rehabilitation of offenders”.
The imposition of a whole life order without any hope of release on rehabilitation grounds is incompatible with that statutory purpose of sentencing. It does not follow that a whole life tariff cannot be imposed by the sentencing court, but it does follow that, when sentencing, a judge should know and the offender should know that there is some prospect at least that in exceptional circumstances there will be a power to enable the offender’s release other than on purely compassionate grounds. Of course, it is understandable that in the case of the most heinous crimes the purpose of rehabilitation comes low down the list, but the absence of any possibility of review except on compassionate grounds, interpreted in the “Lifer Manual” as being, effectively, only in the case of terminal illness, removes hope completely in a way that is inhumane.
My second point is one that has been made: that the judgment of the Grand Chamber in Vinter was unequivocal. The court was absolutely clear that the effect of such an order is that a prisoner cannot be released other than at the discretion of the Secretary of State. I urge on the House the point made by the noble Lord, Lord Pannick, that the Secretary of State should not be the decider. There should be an independent body. That release would occur only on compassionate grounds under our statute. The court therefore held that a whole life order of imprisonment violated Article 3, which prohibits inhumane and degrading treatment and torture.
The United Kingdom judge, Judge Mahoney, emphasised that states were free to choose the means whereby they fulfil their obligation to “abide by” the Grand Chamber’s judgment in relation to Article 3. The Court of Appeal’s decision in McLoughlin leaves the position unclear, because the Court of Appeal appears to have held that the existing law permits release on other than compassionate grounds, contrary to the statute and to the finding of the European Court of Human Rights in Vinter. Whatever the Supreme Court may or may not do with McLoughlin, it is, I suggest, now for us in Parliament to make it clear what the law is in this crucial area and to do so in a way that unequivocally honours our treaty commitments.
Lord Marks of Henley-on-Thames
My Lords, the purpose of this amendment is quite simply to remove the power proposed in the Bill by Clause 6(3) to provide that the power to impose an electronic monitoring condition be mandatory. Amendment 14, which is also tabled in my name, is consequential upon Amendment 9.
The Committee will no doubt quite understand that the effect of subsection (2) is to amplify and explain the Secretary of State’s power to impose an electronic monitoring condition on the release on licence of prisoners. That is a desirable and sensible condition to be imposed where appropriate. The idea that by subsection (3) a new Section 62A is added to the Criminal Justice and Court Services Act 2000 giving the Secretary of State power by order to make it compulsory to impose an electronic monitoring condition evades explanation, I regret to say. The power under Section 62 already gives the Secretary of State power to make rules about the conditions for the imposition of such a condition. I simply invite the Minister to explain why the fetter on the Secretary of State’s future discretion is needed.
There may be cases where an electronic monitoring condition is not required or is inappropriate. I take as an obvious example the case of a prisoner who is disabled or is to be hospitalised on release. That is recognised in Section 62 as it stands. Making an electronic monitoring condition compulsory seems a retrograde step depriving a Secretary of State who brings it in by order and any future Secretary of State of the power or the right to exercise discretion not to make such a condition in appropriate cases. The amendment is a simple one, and the issue is a simple one. I beg to move.
The Deputy Chairman of Committees (Baroness Harris of Richmond) (LD)
My Lords, if Amendment 9 is agreed to, I cannot call Amendments 10 to 12 inclusive by reason of pre-emption.
Lord Ahmad of Wimbledon
Of course I will take advice on this, but as I have said already—and the noble Lord knows this as well as I do—representations are made in any form of government. I will of course endeavour to write to the noble Baroness. I will share with the Committee the details of that letter and place a copy in the Library.
Lord Marks of Henley-on-Thames
My Lords, a great deal of what my noble friend has said in response to these amendments is entirely uncontentious. As I hope I have made clear, I have no objection to discretionary electronic monitoring of prisoners on licence, and no objection to improved tracking, technical improvements or effectiveness. I quite understand everything he said in that score.
My concern was with the element of compulsion added by new subsection (3). I regret that I simply did not understand my noble friend’s response on its drafting. He said that there was somehow a discretion in the order-making power under new subsection (3) that would enable the Secretary of State to take into account cases where it would be difficult, inappropriate or not sensible to impose electronic monitoring. It may be that we are talking about a matter of drafting. In that case, I urge my noble friends to look at the drafting.
New Section 62A provides:
“The Secretary of State may by order provide that the power under section 62 to impose an electronic monitoring condition must be exercised”.
The description of the order-making power states:
“An order under this section”—
which is an order that the monitoring condition power “must be exercised”—
“may … require an electronic monitoring condition to be included for so long as the person’s release is required to be, or may be, subject to conditions or for a shorter period”,
and may,
“make provision generally or in relation to a case described in the order”.
It may be that my noble friend is referring to the entitlement to make provision generally as imposing a discretion. If he is saying that, I would suggest that that no longer complies with the description under new subsection (1) of an order imposing “an electronic monitoring condition” which “must be exercised”. Furthermore, even if he were right that that would somehow allow electronic monitoring conditions not to be mandatory, I would respectfully suggest to him that that is a clunky way of providing for particular cases to be dealt with in accordance with the discretion, which is what I suggest ought to be maintained. However, on the basis that my noble friend will consider the drafting, I beg leave to withdraw the amendment.
Lord Ramsbotham
My Lords, in supporting my noble and learned friend Lord Brown and saluting my noble and learned friend Lord Lloyd on his determined and tenacious momentum on this issue, I want to say just one thing. I am amazed that the Government are not tabling this amendment. As the noble Lord, Lord Wigley, mentioned, £40,000 a year for 773 prisoners is £35 million per year. If you have an overstretched and underresourced Prison Service, surely it makes sense to examine where you could make savings to put the money to better effect, rather than spend it on prisoners who should not be there. I fail to understand why, in the face of all the arguments, all the legal statements and all the evidence, plus the legislation passed in 2012, the Government have not taken the common-sense step of approaching this forcefully themselves.
Lord Marks of Henley-on-Thames
My Lords, I join other noble Lords in paying tribute to the noble and learned Lord, Lord Lloyd of Berwick, for his campaign to achieve justice for IPP prisoners. I remember well the debate on 27 March secured by the noble Lord, Lord Wigley, who raised this issue on that occasion.
The continued imprisonment of those who are serving tariff sentences of less than two years for so long after those tariff sentences were completed, and now long after IPP sentences were abolished by the LASPO Act, is nothing short of disgraceful. The noble and learned Lord, Lord Phillips of Worth Matravers, mentioned “Fidelio”. In that opera, it took the courage of Florestan’s wife Leonore, who, dressed as Fidelio, risked her life to save her husband from unjust imprisonment, to secure his release. All that is necessary for this Government now is for the Secretary of State to exercise his power—given to him, as has been pointed out, by the second limb of Section 128 of the LASPO Act—to introduce a simple presumption in favour of release unless the continued imprisonment of any such prisoner on an IPP can be positively and clearly justified. It is a simple presumption. It meets the justice of the case. It answers any need that remains for the protection of the public. I suggest that this unfairness must be ended, and now.
Lord Beecham
My Lords, it is ironic that the Committee meets today, on Bastille Day, as the French Revolution effectively broke out with the release of a number of prisoners on what were presumably indeterminate sentences. I suppose that they might have been lettres de cachet. The House and the Committee are indebted to the noble and learned Lord, Lord Lloyd, who has constantly raised this matter.
The noble and learned Lord, Lord Phillips, referred to “Fidelio”. I am not sure whether the Secretary of State would find himself comfortable in the position of the Minister in that opera; perhaps he would be more comfortable in another opera as Gilbert and Sullivan’s Lord High Executioner. Be that as it may, the noble and learned Lord raised a series of questions, implicitly or explicitly, to which we have had no reply thus far. I hope that the Minister will be able to give us some indication of the Government’s thinking, if they have got that far, on the issues raised this afternoon.
The first question has already been asked but I will repeat it: why include a provision in legislation and then completely ignore it? Have the Government or, more particularly, the Secretary of State considered using the provision that this Government included in the LASPO Act? If they have, on what basis has that consideration taken place? Has the Secretary of State looked at any cases of the kind to which the noble and learned Lord referred—I would hardly expect him to look at them all—to come to a view about whether it would be right to exercise the discretion that was deliberately placed in his hands? If he has not, why not? What is the Government’s intention in relation to this section of LASPO? Is it to be ignored or is it at all to be used? If it is not to be used, why do the Government not have the courage of their apparent convictions and delete it? If it is to be used, when and under what circumstances will that be?
Questions have repeatedly been asked today about the resources available to the Parole Board to deal with matters of this kind. I asked the general question before to which others, including the noble Lord, Lord Wigley, have now alluded about the increased burden on the Parole Board as a result of recent decisions and the growing number of cases that it will be asked to look at in oral hearings. However, has any specific consideration been given to the resources required to deal with the cases of people who have been in prison for the length of time to which noble Lords have referred? Again, if not, why not?
There may be a concern in respect of some of these defendants as to what would happen if they were released and whether they might to some degree be a risk to the public. What investigations have been carried out to assess the need for investigation and inquiry by the Parole Board in support of those potential candidates for release who have served such a length of time? The overriding question is really therefore: what was the purpose of incorporating the Secretary of State’s discretion in the 2012 Act if it is to be treated as redundant? If it is not to be so treated and there is an intention to do it at some time, why the delay? As we have heard, many cases have been running for an unacceptable length of time. I hope that the Minister will be able to give some assurances that this matter will be seriously addressed and not simply left on the shelf in a way that does no credit to our system.
I think that the previous Government were rightly criticised on matters of this sort, in many respects, particularly in also failing to provide sufficient support for the Parole Board. However, their failure is relatively minimal compared to the looming failure which is likely to affect not only this category of prisoner but others who require the Parole Board’s intervention. I hope that the Minister can indicate, today of all days, that some movement will be made and that the Secretary of State will address himself to the plight of these people, and thereby avoid a further stain on the reputation of the Government in this respect.