Police, Crime, Sentencing and Courts Bill

Lord Paddick Excerpts

Lords Hansard - part one & Committee stage
Monday 1st November 2021 Lords Chamber

Moved by

[Lord Paddick]

110ZA: Schedule 4, page 205, line 42, at end insert—
“(1C) The constable must record the reasons for each determination including the assessment of each of the matters the subject of subsection (1B).”Member’s explanatory statement
This amendment, along with Lord Paddick‘s amendment to page 206 line 18, requires a custody officer to record case-specific reasons why it is necessary and/or proportionate to release a person on bail, including the reason for any conditions attached.

[Lord Paddick (LD)]

My Lords, in moving Amendment 110ZA in my name I will speak to my Amendments 110ZB, 110ZC and 110B and to Amendment 110A in the name of my noble friend Lady Harris of Richmond in this group.

We now come to pre-charge bail, also known as police bail, where the police need more time to investigate than the time limits for keeping someone in custody without charge allow. In 2017, in response to concerns that people were being kept on pre-charge bail for too long, particularly journalists under investigation as a result of the phone hacking scandal, the Government used 18 clauses of the Policing and Crime Act to severely curtail the time someone could be held on pre-charge bail.

At the time, briefed by police practitioners, we told the Government that their changes to police bail were unworkable and that they had gone too far the other way. Some 18 clauses of the Policing and Crime Act 2017 are now all but reversed, relegated to Schedule 4 to this Bill. There clearly needs to be a balance between the need for a thorough police investigation, diligently carried out within resource constraints—which, because of the significant cuts in police officer and police support staff numbers since 2010, have been considerable—and the adage that “justice delayed is justice denied”. The irony of telling the police to speed up their investigations while at the same time curtailing their ability to do so will not be lost on the Committee.

It must be necessary and proportionate for the police to release a person on bail, including the imposition of any conditions of that bail. I know from my own professional experience that custody officers tend to record something along the lines of “I am releasing this person on bail because it is necessary and proportionate to do so” or “because it is necessary to ensure that the person surrenders to custody” or whatever Section 30A of the Police and Criminal Evidence Act 1984 says may be a reason for releasing a person on bail. This is simply copied and pasted into the custody record. I was sitting here earlier reading that and realising that perhaps, as a police inspector reviewing detention, I might have been guilty of a similar act of simply copying generic paragraphs out of the Police and Criminal Evidence Act 1984.

This is not sufficient and Amendments 110ZA and 110ZB are designed to address this. The police officer should record the case-specific reasons why it is necessary and proportionate to bail the person and the case-specific reasons for imposing the conditions, if any, attached to the bail—not “to ensure the person surrenders to custody” but why the officer thinks this person is unlikely to surrender to custody; for example, because he has absconded in the past, perhaps. If the factors to be taken into account in paragraph 17 of Part 2 of Schedule 4 are included in the Police and Criminal Evidence Act 1984 in a new Section 30A(1B), so should be the requirement to say what it is about this person that makes release on bail necessary. Later in the Bill, in Clause 132(7), courts remanding children in custody will be required to set out their reasons for doing so in writing. This amendment requires the police to do the same when it comes to police bail decisions.

On Amendment 110ZC, following representations made by the Law Society—from my professional experience I see the merit in some and not others—I agree with it that the if the matter is straightforward, what is called in the legislation a “standard case”, a senior police officer should be able to extend bail only to a maximum of six months before the case is referred to a magistrates’ court for independent adjudication, rather than the nine months suggested in paragraph 29 of Schedule 4 to the Bill.

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[Lord Sharpe of Epsom (Con)]

My Lords, I thank noble Lords for their contributions. These amendments bring us to the issue of the reform of pre-charge bail. The intention of the Government with this set of changes is clear: to create a more effective and proportionate pre-charge bail system through “Kay’s law”, as referred to by the noble Lord, Lord Ponsonby. Kay’s law has been so named after Kay Richardson, who tragically lost her life at the hands of her estranged husband while he was released under investigation rather than on bail. It is clear that we need robust decision-making around the use of pre-charge bail in order to ensure that it is used fairly. This is why we have removed the presumption against bail and introduced the risk factors to be considered by the custody officer.

Let me first address the amendments in the name of the noble Lord, Lord Paddick. Amendments 110ZA and 110ZB relate to record-keeping for bail decisions. I certainly agree that there should be a clear audit trail to evidence how these decisions have been made. I do not, however, consider that it is necessary to legislate for this, given that it is an operational process, but it is our expectation that custody officers are already keeping records of how they came to their decisions as part of best practice within each force. I acknowledge that this may not be done with the consistency we would expect, which is why it would be more appropriate to include provision for this in the national statutory guidance on pre-charge bail, which is to be published by the College of Policing.

Amendment 110ZC is concerned with the timescales for the review of pre-charge bail. Again, I fully recognise that we must provide the correct balance here—the noble Lord, Lord Paddick, referred to balance in his opening remarks—between the rights of those who may have been victims of crime and those who, at this stage, have yet to be charged with an offence. The new timescales provided for in the Bill, which have been subject to public consultation and engagement with law enforcement, charities and victims’ services, strike a fair balance and will create a system that works better for all involved. That being the case, the Government are satisfied that nine months rather than six is the appropriate point at which decisions around the extension of pre-charge bail in standard cases should be referred to a magistrates’ court. I am grateful to the noble Lord, Lord Ponsonby, for sharing his personal experience on this subject. As he said, it will place further pressure on the police, but on the opposite side, it would potentially clog up the courts if referrals were brought forward. Following our consultation, we believe it is equitable for extensions up to nine months to be made by a senior police officer, and only then should the matter be referred to the courts.

Amendment 110B would require police forces to publish data annually on the number of individuals released on pre-charge bail and those released under investigation. We heard some powerful arguments from my noble friend Lord Wolfson about data in the previous group, and I am about to reiterate some of those, because we agree that accurate data is crucial in order to monitor the impact of these legislative changes and ensure that they are operating as intended. I am pleased to inform the noble Lord that the information he seeks is already collected by forces and published by the Home Office annually through the Police Powers and Procedures bulletin. Perhaps to anticipate a subsidiary question, statistics on the number of individuals released on pre-charge bail have been published yearly since 2017-18. The Government have recently amended this collection to include the number of people released under investigation. This information has been collected for 2020-21 and will be published later this year.

One might reasonably ask, since it has been four years since the last round of reforms, why we still do not know how many people are released under investigation. There are 43 forces across England and Wales, as the noble Lord well knows, which use different case management systems and data warehousing. We have been collecting data on the number of individuals on pre-charge bail since 2017, first on a voluntary and now on a mandatory basis, and we have also started collecting more data on pre-charge bail in terms of offence, breach, demographic and so on, and on released under investigation and voluntary attendance. This is voluntary collection at the moment, but we are working with police and systems providers where forces have been unable to provide data to enable reporting with the intention of changing to mandatory collection following the reforms as system updates allow.

Turning to quite a different matter, the noble Baroness, Lady Harris, has tabled Amendment 110A, and I acknowledge her long association with this subject. This would create a new criminal offence of breaching pre-charge bail conditions where a person is arrested elsewhere than at a police station and where there is no reasonable excuse to do so. It is essential that we keep in mind the safety and welfare of victims at this stage of the criminal justice system, as well as balancing this against the risk of criminalisation of individuals who have not been charged with an offence. Noble Lords will be aware that debate around the consequences of breaching these conditions has been ongoing for a number of years. While I understand those concerns, I cannot agree that such a criminal offence would be a proportionate response to this issue. Pre-charge bail is just that: pre-charge. There has been no charge or conviction against the individual as yet. It would therefore be disproportionate to criminalise the individual at this point, particularly where they may face a harsher sentence for the breach than the one carried by the offence for which they were originally arrested. Bail should not be punitive in nature according to the principle of the presumption of innocence.

On top of this, the Government do not currently have an accurate snapshot of the number of individuals who breach their conditions each year—I fear we are back to data again. Without knowing how many people this would affect, such an amendment could well lead to unintended consequences, criminalising a potentially large group of people and tying up the courts system. I stress that there is obviously no desire on the part of the Government to allow suspects to breach their conditions wantonly. Where there has been a breach, police officers will look to consider whether a substantive offence is established, such as intimidation or harassment in the first instance. In certain circumstances, as the noble Lord, Lord Ponsonby, alluded to, there is also the option of a court order, such as a sexual risk order or the new domestic abuse protection order, breach of which is a criminal offence in itself.

The Bill also introduces a three-hour pause on the detention clock where an individual has been arrested for breach of their conditions. This will allow the police further time for progressing the case, either through investigation of the breach or preparing a substantive case for charging. The Government have already made a commitment in the Commons to increase the data collection in this area, which will provide a more detailed understanding of this issue. It is my hope that this may yield a more proportionate, tailored and workable policy solution in the future.

The noble Lord, Lord Ponsonby, referred to Sarah Jones’s amendment in the other place and asked about the Minister’s consultation. I fear I do not know the answer to that; I will get back to him on when it may be expected to report. She also acknowledged that the collection of data around breaches of conditions to better understand the scale of the problem was part of the problem we have here. I think the Minister’s response was welcomed by his colleague Sarah Jones in the other place and she was content to withdraw her amendment. It has been helpful to explore these issues, but in the light of my explanations, I invite the noble Lord to withdraw his amendment.

[Lord Paddick (LD)]

My Lords, I thank my noble friend Lady Harris of Richmond for her support and for so clearly and powerfully explaining her Amendment 110A. Arresting somebody for breaching pre-charge bail where the only thing the police can do if somebody has breached the conditions is simply to re-bail them under the same conditions undermines the whole purpose of police bail—there is no sanction at all. The Minister said, “Well, the person has not been convicted of an offence and they could end up being convicted of breaching the bail but not of the original offence.” I may have been dreaming, but I seem to remember being at Highbury Corner Magistrates’ Court, albeit the stipendiary magistrate concerned was known colloquially as “Shotgun Maclean”, and his saying to an arresting officer that, unfortunately, in a not-guilty offensive weapon trial, the officer had failed to prove beyond reasonable doubt that the defendant was guilty of possessing an offensive weapon, but for breaching court bail—in that when they first appeared in court the person was released on court bail to reappear for the not guilty hearing—he would go to prison for three months.

There is the whole argument about this being disproportionate for somebody who is not convicted of a criminal offence if they were convicted of breaching bail, but it happens already when people who are innocent breach court bail. This seems to completely undermine the noble Lord’s argument. The point of Kay’s law is to stop dangerous people being released under investigation with no conditions attached. Without a sanction for breaching the conditions that are imposed, the conditions have no weight.

I am very grateful to the noble Lord, Lord Ponsonby of Shulbrede. Regarding the sort of cases he referred to, I would expect—particularly if analysis of computers was involved, for example—that these would not be standard cases and that the Crown Prosecution Service would designate them as such, so the six-month or nine-month limit would not apply. I am not sure that the cases he referred to were relevant to the examples I gave.

I accept that the Government have consulted on this, but I would go back to the Law Society, which is on the other side of the argument—including as it does defence solicitors—and feels that nine months in a standard, straightforward case not involving such things as computer analysis would be a long enough extension for a senior officer. However, we will reflect on what the Minister has said and, in the meantime, I beg leave to withdraw my amendment.

Amendment 110ZA withdrawn.

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[Earl Attlee (Con)]

My Lords, my task in this debate is easy: all I have to do is to support the noble Lord, Lord Beith, and say that I have rarely heard an amendment moved more comprehensively than he just did.

[Lord Paddick (LD)]

My Lords, we strongly support my noble friend Lord Beith. He has clearly explained his amendment: persons other than those mentioned in the Bill are in positions of trust. Although there is no evidence of widespread concern about instructors in dance, drama or music abusing their positions of trust, there are examples and fairly recent high-profile cases. My noble friend explains that either we should leave it to the courts to decide whether someone is in a position of trust or a more comprehensive list is required that is not limited, as my noble friend Lady Brinton said, to the examples in the amendments.

I agree with the noble Baroness, Lady Jones of Moulsecoomb, to some extent, although one could imagine that children are more vulnerable in certain scenarios and one-to-one situations than in others. But we support the amendments in the name of my noble friend Lord Beith.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we too support these amendments, and I too found the introduction from the noble Lord, Lord Beith, to be comprehensive. The brief in front of me asks why some youth activities are included and others are not, which is the point the Minister will have to address when he winds up this brief debate. I will not repeat those points about why certain activities might be included and others might not, and I am sure that everyone who has spoken in this debate wants to achieve the same end, but there are different mechanisms to do that.

I agreed with the noble Baroness, Lady Jones of Moulsecoomb, who, as she said, somewhat unusually found herself in agreement with potentially using Henry VIII powers to amend legislation. While listening to this debate, I remembered the biography of a very famous English composer that I read recently, just a few months ago. He would fall foul of these regulations and would very likely go to jail on the basis of that biography.

I hope this problem is not widespread, but it is something that people are far more alert to these days than they were in the past. It is right that the Government should ensure that the appropriate structures are in place in each of the activities for which young people get support, so that, if things go wrong, the coaches or whoever is involved can be held to account in an appropriate way.

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[Lord Wolfson of Tredegar (Con)]

The art lesson may be a good example. With respect, there is a huge gulf between the relationship of somebody to their art teacher, if they go to an art group, and the sort of intimacy that a physical sports coach has with somebody or the sort of power, control and sense of authority that a religious leader has over a young person.

I shall give one example of evidence, picking a made-up country from private international law. Let us say that, in Ruritania, there is a huge number of cases of a particular category. It might well then be said, “We can see there is a problem with this category. It has happened in Ruritania. The circumstances are the same as in the UK. You should add that.” That is just one example. I do not want to limit the evidence that we would rely on but, with respect, we cannot say that, because there has been a case in an art class or a case here and a case there, we will include all these categories. We should not include every circumstance in which adults have close contact with under 18 year-olds. I think the noble Lord, Lord Paddick, wants to come in.

[Lord Paddick (LD)]

I am grateful to the Minister for explaining the Government’s position but I do not understand the argument that we are surreptitiously changing the age of consent. If a 16 or 17 year-old wants to have a sexual relationship with their music teacher, they had better find another music teacher; the solution is quite simple. They should not continue in a professional relationship and have a sexual relationship at the same time.

[Lord Wolfson of Tredegar (Con)]

With great respect, the point put to me by the noble Lord, Lord Paddick, shows that if we draw this too widely, we are limiting the ability of a 16 or 17 year-old to have a sexual relationship with that person. This the balance that we want to strike. At the moment, there is nothing to prevent a 17 year-old having a consensual relationship with a person with whom they have a tuition relationship or other kind of relationship. The question is: where do you draw the line? We say the line should be drawn at sport and religion. If you draw it too widely, you impact on that person’s ability to have a sexual relationship with other adults.

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Moved by

[Lord Paddick]

113: Clause 46, page 38, leave out lines 33 to 39.
Member’s explanatory statement
This amendment is intended to probe the proportionality of the inserted subsection in comparison to other offences.

[Lord Paddick (LD)]

My Lords, in moving Amendment 113 in my name I shall speak also to the other amendments in this group. I declare an interest as a Liberal Democrat and someone generally against sentence inflation, but I have specific points to make on this clause.

Clause 46 effectively increases the maximum penalty for “destroying or damaging” anything by fire, or for any offence involving damage to a memorial, which means something “erected or installed”, or

“a garden or any other thing planted or grown which has a commemorative purpose”,

whether it is the statue of a national hero or a slave trader, a person’s grave or a pet cemetery. The clause does this by removing the financial limit on when the case can be tried at, or sent to, the Crown Court for sentence. Magistrates’ courts cannot send someone to prison, I believe, for more than a maximum of 12 months, but a Crown Court judge can send someone to prison for criminal damage where there is no threat to life for a maximum of 10 years.

To put this into context, Clause 2 of this Bill, as drafted, increases the maximum penalty for assaulting an emergency worker from one year to two years, while this part of the Bill increases the penalty for damaging a memorial from one year to 10 years. It is clear where the Government’s priorities lie; it is more important to protect a statue of Churchill than it is to protect our brave men and women police officers.

It gets worse. New subsection (11B) of Section 22 of the Magistrates’ Courts Act 1980, inserted by Clause 46, includes

“any moveable thing (such as a bunch of flowers)”

left in or on a memorial, as part of the memorial—so, a maximum penalty of 10 years in prison for damaging a bunch of flowers. Pick up a bunch of flowers placed at the feet of Churchill’s statue and hit a police officer round the face with it, and you can get up to 10 years in prison for damaging the flowers but only two years for assaulting the police officer. Amendment 113 is designed to probe the proportionality of subsection (11B). Amendment 114 is consequential.

In fact, bearing in mind that the limit for a summary-only trial—at least in the original Bill, and I cannot find any amendment to it—is £200-worth of damage, to replace, repair or restore the property damaged, it is unlikely that anything other than minor superficial damage would be below this value. There may well be a case to treat graves as a special case, where it can be deeply distressing if the burial plot is disturbed, but, aside from that, I am yet to be convinced that Clause 46 should stand part of the Bill, at least in its current form.

There is far more merit in protecting the living, as Amendment 115 proposes to do, than in protecting the memorials of the dead. Damaging life-saving equipment is a very serious matter, and there is far more merit in this amendment than in Clause 46.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I rise to support these amendments. We are now getting into the stuff that I will fight tooth and nail over. As an archaeologist and activist, I feel that I have a little bit of insight into this whole situation and perhaps into the ridiculous law that the Government are trying to introduce here. Instead of debating and discussing it and coming to a sensible resolution, this is part of a battle in a culture war, which is absolutely ludicrous.

History is important, but it is not fixed. People like to think that we all know what it is and it is in all the books, but, actually, as an archaeologist, I know that we reinterpret it all the time and are constantly making new discoveries. Just in the last week or so, we found Roman statues in a totally unexpected place. This is what happens: we change our minds about history and it gets rewritten.

The problem is that we have some very ugly history, which is littered with powerful and wealthy white men who, behind a thin veneer of toffish respectability, did some quite nasty things and were responsible for atrocities such as the enslavement of millions of people, genocides, war crimes and the grabbing of wealth from some of the many nations that we now call “developing nations”. Our statues ignore this history and pretend that it was benign and that these were good guys, which is simply not true: they were slavers and pillagers, and we ought to recognise that. Having their so-called heroism set in stone is actually quite offensive. There is no hint in many of these statues that they did some evil deeds.

People—many members of the public—do not like this, and they are showing their dissatisfaction with celebrating people who really should not be celebrated. They raped and pillaged, and the fact that they then spent a lot of money on universities, libraries or parks does not really make it all all right. So the question of what we should do with these monuments is important, but not easy. It should force us to confront the evils within our history and reflect on how they carry through to the social and economic conditions of our present.

Instead of leading on this quite important dialogue, the Government simply storm in with a new criminal offence, which I find so ludicrous that I feel I ought to go and speak directly to the Home Secretary about it. They are trying to put their fingers in their ears, sing “Rule Britannia” and pretend that all of this did not happen and that it was all okay—but it was not. Councils all over the country and the Government have to realise that statues are not something that we cannot change or remove. The fact is that some of these statues celebrate evil deeds, and the Government should recognise that.

I have more to say, if noble Lords wish.

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[Lord Wolfson of Tredegar (Con)]

The short answer to that is that I did not make my argument on the basis of deterrence. Sentencing encompasses a number of factors: there is deterrence; there is the actual punishment for the offence; there is marking society’s disapproval at what was done. I hope that I made my argument very clearly on the first two. I was not suggesting that people would necessarily be deterred; I hope that they will be, but that is not the main basis of my argument.

[Lord Paddick (LD)]

My Lords, I thank all noble Lords for taking part in this short debate, particularly the noble Baroness, Lady Jones of Moulsecoomb, for her support, albeit coming at the issue from a slightly different angle to the one from which I was coming. I also thank the noble and learned Lord, Lord Falconer, for picking up on what I said, which is that this needs to be more targeted. I specifically said that Clause 46 “as drafted” is not suitable. It needs to be much more accurately targeted; otherwise, it enables people to make the accusation that I did not make, that this is about dramatically increasing the penalty for what could be very minor damage to a statue of a very divisive figure. In fact, I made reference to the fact that doing anything to a grave, for example, could be deeply distressing and it may be that the penalty needs to be increased for that particular purpose. Clause 46, however, goes far too wide and draws those who feel that it is about culture wars into the argument, where that would not be the case if it were more far more tightly drawn; but at this stage, I beg leave to withdraw my amendment.

Amendment 113 withdrawn.