Modern Slavery Bill
Lord Ponsonby of Shulbrede Excerpts(9 years, 11 months ago)
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Lord Deben (Con)
My Lords, I want to underline what the noble and learned Baroness has just said for a particular reason. The Government have been keen on saying that, in accepting the European arrest warrant, they want to make clear that they will not allow it to be used for offences committed in other countries which are not offences here. In those circumstances it is most important that we get the offences here right in parallel with what is an offence in another country. It is that point which I think the noble and learned Baroness has put her finger on and it is that which we have to get right.
I question the Government’s view on the restriction of the European arrest warrant. However, if they want to do that, they have to make sure that we do not find ourselves in a position where we have ill defined a particular offence so that it does not operate in the way we would like it to do in any complementary legislation in other countries. I hope that my noble friend will consider this suggestion very carefully, probably not at this moment, but between now and the next stage of the Bill, as it is worth trying to get this matter right.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I will comment on a slightly wider point and back up my noble friend on the definitions of trafficking and exploitation. She spoke about the benefits of having stronger definitions of trafficking and exploitation and referred to the comment of the noble and learned Lord, Lord Mackay, that stronger definitions could lead to the prevention of trafficking and exploitation. I will add that a benefit of having clear and strong definitions is in the identification of trafficking. Here I am talking specifically about identification when one is in court.
As noble Lords may know, I sit as a magistrate in both adult and youth courts. I have sat in youth courts on quite a few occasions where a young person has been brought in for either pickpocketing or shoplifting and a man is sat at the back of the court who we are told is the young person’s uncle. We have received training on what to do when our suspicions are raised with regard to the status of the person sitting at the back of the court, who is there supposedly in the interests of the youth appearing before it.
I know that the YOTs, the probation service and the police have also received training on this matter. It is important that we have clear identification and that the courts can act quickly when they think this issue is being raised, because when one is actually going through the court process, one does not have very long to identify potential victims of either trafficking or exploitation. Therefore, it is important that this definition is as clear as possible and is well known by the various agencies that deal with young people—and not so young people—who may have been trafficked.
Serious Crime Bill [HL]
Lord Ponsonby of Shulbrede Excerpts(10 years, 4 months ago)
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Baroness Butler-Sloss (CB)
My Lords, to a considerable extent I agree with the noble Baroness, Lady Walmsley, but want to go rather further. I thank the Government for, and indeed welcome, Clause 62 as far as it goes. I should like to give particular thanks to the previous Minister of Justice in the other place, Damian Green MP, who has always been open to listening to Action for Children, for which I am largely speaking; I am also speaking for the NSPCC. He has been extremely helpful in giving us an opportunity to put our points of view to him. It is largely due to his diligence that the clause is in the Bill, so I thank him very much.
Clause 62, as far as it goes, is good but does not go far enough. The purpose of my Amendment 40BZB—supported particularly by Action for Children, and warmly supported by the NSPCC—is to update and bring into the 21st century Section 1 of the Children and Young Persons Act 1933. I have to tell noble Lords that 1933 was the year in which I was born, and it really is about time that we had 21st-century legislation. I am a relic of that period but the law should not be. I am supported in this amendment by the noble Baroness, Lady Smith, and the noble Lord, Lord Rosser, whom I thank very much.
The purpose is to identify in criminal terms serious neglect and emotional abuse. “Neglect” is in the 1933 Act but does not include the effect of neglect on children and all sorts of emotional abuse that children suffer. Neglect is the most widespread and potentially most serious of all forms of abuse because it is, in itself, largely neglected. It is not seen. There are appalling stories where the police have identified a problem and discovered that they could not take any action by, for instance, threatening the family with some sort of criminal proceedings because the abuse and neglect that they see does not include the emotional abuse of things such as frozen awareness. Some noble Lords may know what I mean by that—for example, a child aged two sitting in a corner, not moving because of the way in which they have been treated. The police, who may come into a family, see and understand this but have to go away and tell the social workers, who may or may not take family proceedings in the magistrates’ court but are not obliged to do so. The police cannot warn the family that if they do not mend their ways they may become the subject of criminal proceedings.
The purpose of this updated legislation is not to put families in the criminal court but to try to push them, by a combination of threat and cajoling, into behaviour that will save the children who are in their care. My amendment, therefore, puts in modern wording such as,
“physically or emotionally ill-treats, physically or emotionally neglects”,
and removes altogether the words “unnecessary suffering”. I totally agree with the noble Baroness, Lady Walmsley, that “unnecessary” should not be there, but “suffering” is not the word we use nowadays. In the Children Acts and other adoption and child-related legislation we talk about “serious harm”, “substantial harm” or some such phrase. One should get rid of “unnecessary suffering” and get this legislation to join the rest of legislation on children by using “serious harm”. As regards the criminal side of this matter, we then need to explain what “serious harm” means. Proposed new subsection (6) in my amendment sets that out.
It is with some hesitation that I do not entirely agree with the noble Baroness on proposed new subsection (6)(b). I have to say that having battled with the Minister in the other place over inserting “recklessly” instead of “wilfully”, and being told that there was a firm view against doing that, Action for Children, the NSPCC and I, together with some MPs from the Commons, believed that we should explain what “wilfully” means. That is why we have put in,
“that a person with responsibility for a child foresaw that an act or omission regarding that child would be likely to result in harm, but nonetheless unreasonably took that risk”.
That allows the word “wilful” to remain, since the Government seem to want it, but also explains it so that everyone—particularly the police, and indeed people who ill treat their children—understand exactly what it is about.
I very much hope that the Government will now listen to what is being said in this House, although they failed to do so in the other place. I very much urge that this should be looked at again.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I rise to speak to Amendment 40BZC, which is in my name. I, too, welcome this clause. My amendment, which is promoted by the Children’s Society, finds a different way to address the same issues we have already debated in this group. As the noble Baroness, Lady Walmsley, said in her introduction, there are currently a number of inconsistencies in the law. My amendment finds a particular way to try to address them.
The amendment changes the Children and Young Persons Act 1933 to increase the age of a child victim of cruelty and/or neglect from under 16 to under 18. I argue that it is a simpler approach than some of the other amendments in the group. It would bring the criminal law into line with the rest of child protection legislation and would send a signal that 16 to 18 year- olds should be protected in the same way as children who are younger than 16.
The latest statistics, with which I was supplied by the Children’s Society, show that, in 2013, 14,290 children aged over 16 were children in need because of either abuse or neglect. A further 1,110 children aged over 16 were recognised as children at risk of significant harm and placed on a child protection plan. Of those, some 290 children had emotional abuse listed as the main category of their abuse.
As some members of the Committee will know, I sit in family court, youth court and adult court as a magistrate. I can clearly say that the most disturbing of those three jurisdictions is family court. You deal with some extremely vulnerable people—and some extremely vulnerable young people. It would be no surprise to anyone who works in either the youth or family jurisdiction that 16 and 17 year-olds are among the most vulnerable groups we deal with. I believe that they should be given the same protections as those aged under 16.
The Lord Bishop of Durham
I rise to support the amendment tabled by the noble Lord, Lord Ponsonby, on behalf of myself and my colleague, the right reverend Prelate the Bishop of Truro, who chairs the Children’s Society. The Serious Crime Bill rightly seeks to update the law on neglect of children. We welcome the Bill and the Government’s commitment to seeking to improve the response to victims of emotional neglect. The current law is outdated and inadequate. We also support the amendment tabled by the noble and learned Baroness, Lady Butler-Sloss.
The UK is one of the only countries in the world that fails to recognise emotional neglect as the crime it is. It is to the Government’s credit that they seek to address that through the Bill. However, I believe that the Bill should go further and increase the age a child can be defined as a victim of cruelty and neglect from under 16 to under 18, which the noble Lord, Lord Ponsonby, seeks to do through his amendment. By changing the law in this way we can, for the first time, offer protection to all children from cruelty and neglect.
I, too, am grateful to the Children’s Society for its briefing, and I shall offer a story that it gives of Jessica. Jessica was known to social services because of the neglect and abuse she experienced in her family. When she was 16 the relationship between her and her family deteriorated and she was forced to move out of her family home. In the next year and a half she experienced unsuccessful placements in a hostel and bed and breakfast accommodation. Experiences of neglect at home made it difficult for her to form meaningful relationships. During that time, starting with her first unsuccessful placement in a hostel, Jessica became a victim of sexual exploitation, started using drugs and developed mental health problems. Stories such as Jessica’s mean that we need to ensure that this measure applies to all children under 18.
This definition is the one enshrined in the United Nations Convention on the Rights of the Child. It is in the Children Act 1989, which governs what safeguarding responses children should receive if there are concerns about their well-being. The PACE codes of conduct for the police were amended last year so that all under-18s are treated as children. From a safeguarding point of view, children should be viewed as being under 18. Sixteen and 17 year-olds can be very vulnerable. The statistics mentioned by the noble Lord, Lord Ponsonby, showed that. Yet they do not always get access to the services that younger children can receive. Professionals often see 16 and 17 year-old children as more resilient than younger children. They are often seen as more able to avoid abuse, or more grown-up and therefore more able to cope. It does not help that the criminal law aiming to deal with the perpetrators of child neglect does not cover 16 and 17 year-olds. This sends all the wrong signals that they are not as vulnerable as younger children.
The Government’s other reforms increasingly recognise that 16 and 17 year-olds are children. For example, they are not normally treated as adults under the benefits system. The position has recently been reinforced through the rules of the new universal credit system—a basic condition of entitlement for which is that the claimant is at least 18. That was debated in this House when the Welfare Reform Act 2012 went through Parliament. I would like to hear from the Minister why children aged 16 or over cannot be considered at risk of neglect and why the new law on emotional neglect should not apply to them.
Serious Crime Bill [HL]
Lord Ponsonby of Shulbrede Excerpts(10 years, 4 months ago)
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“( ) In section 97 (confiscation orders by magistrates’ courts), for subsection (1) substitute—
“(1) The Secretary of State shall by order make provision for enabling confiscation orders under Part 2 of the Proceeds of Crime Act 2002 (confiscation: England and Wales) to be made by magistrates’ courts in England and Wales.””
Lord Ponsonby of Shulbrede (Lab)
My Lords, my amendment is concerned with confiscation orders in magistrates’ courts. Under the Proceeds of Crime Act 2002, magistrates’ courts lost their power to make confiscation orders. They had previously had this power for appropriate offences under the Criminal Justice Act 1988. Magistrates continue to this day to have responsibility for the enforcement of confiscation orders.
Section 97 of the Serious Organised Crime and Police Act 2005 gave the Secretary of State power to make provision for magistrates’ courts in England and Wales to impose confiscation fines of up to £10,000. This would have to be done by means of an affirmative instrument. While Section 97 has been brought into force, it only gave the Secretary of State the power to make provision by order. In the intervening nine years, this has not happened. Given that magistrates used to have this power, and continue to play a role in the non-payment of confiscation orders, I can see no reason why this should not be taken forward.
Baroness Williams of Trafford (Con)
My Lords, as the Proceeds of Crime Act currently operates, a confiscation order may only be made by the Crown Court. As a result, if someone is convicted of an offence in the magistrates’ court and the Bench considers the case is appropriate for a confiscation hearing, the matter must be referred to the Crown Court. This is clearly not the most effective use of resources for handling simple cases. As the noble Lord, Lord Ponsonby, notes, there is already legislation on the statute book that would enable the Home Secretary to modify Part 2 of the Proceeds of Crime Act so as to enable confiscation orders to be made in a magistrates’ court in cases where the criminal benefit did not exceed £10,000. The relevant legislation can be found in Section 97 of the Serious Organised Crime and Police Act 2005.
I can fully understand the frustration of the noble Lord, as a sitting magistrate, in having to refer all confiscation cases to the Crown Court when it would be perfectly possible for straightforward cases to be dealt with in the magistrates’ court, subject to that £10,000 threshold. The noble Lord is all the more frustrated given that the legislation to allow magistrates’ courts to make confiscation orders has been on the statute book for almost 10 years, as he pointed out. The provision in Section 97 of the 2005 Act had, of course, already been on the statute book for five years when this Government came to office. Like the previous Administration, we judged that there were other priorities for improving the asset recovery regime and responding to serious and organised crime, including the setting up of the National Crime Agency. However, we are now working towards enabling magistrates’ courts to make confiscation orders, including putting in place the necessary judicial training from spring 2015.
Given that we are now actively working to implement a scheme empowering magistrates to make confiscation orders, I hope the noble Lord will agree that his amendment, which places a duty rather than a power on the Home Secretary to make such a scheme, is unnecessary. I would be happy to update the noble Lord in the autumn on progress in this area. On that note, I hope that he will be content to withdraw his amendment.
Turning to Amendments 31A and 31B, my noble friend Lady Hamwee indicated that her intention was not to remove the power to vary the £10,000 limit by order but simply to seek an assurance that there would be proper consultation before the order-making power was exercised.
Generally, our approach is that magistrates’ courts should be able to make confiscation orders only in less serious cases. However, there may be situations in which the defendant has been convicted in the magistrates’ court but is potentially liable to an order greater than £10,000. Such a case would still need to be sent to the Crown Court to be dealt with. The order-making power in the clause allows for the £10,000 threshold to be varied if the evidence following implementation shows that the limit is generally too low.
Once we have brought into effect the provisions allowing for confiscation orders to be made in magistrates’ courts, we will keep the arrangements under close review. I assure my noble friend that before any change is made we will consult with the senior judiciary, the Magistrates’ Association and other practitioners as to whether the £10,000 threshold can sensibly be raised.
I also remind my noble friend that this order-making power is subject to the affirmative procedure, so any change would need to be considered and approved by both Houses. I hope that with these comments I have been able to provide my noble friend with the assurance she is seeking.
Lord Ponsonby of Shulbrede
My Lords, I thank the noble Baroness for that answer. I think we got half a step forward. She said that there would be training in 2015 but could not quite go all the way and say when magistrates would actually receive these powers. Nevertheless, as I said, this was a probing amendment. I have got a little bit more information so I beg leave to withdraw the amendment.
Anti-social Behaviour, Crime and Policing Bill
Lord Ponsonby of Shulbrede Excerpts(10 years, 10 months ago)
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Lord Paddick (LD)
My Lords, I am very grateful to my noble friend the Minister for accepting the amendment suggested by my noble friend Lady Hamwee which excludes offences committed by young people and excludes minor offences as well. However, I share other noble Lords’ concerns about this additional sanction. As I said in Committee, in the aftermath of the riots a couple of years ago, the courts clearly showed how seriously they took offences committed during a riot—far more seriously than if those offences had been committed at some other time. It does not appear to be necessary to have a further sanction in order to deter rioters. The noble and learned Baroness, Lady Butler-Sloss, said that this is a power given to the courts. I am a great believer in the courts and in the fact that they will make the right decisions. But I fail to see why we need this power. I cannot think of circumstances where a court would allow such an order to be made. Therefore, I see this power as being superfluous.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I want to repeat a point I made briefly at Second Reading, following up on the point made by the noble Baroness, Lady Hamwee, about Wandsworth Borough Council. I, too, checked with serving councillors regarding what happened subsequent to the 2011 riots. It is my information that the council did not pursue the repossession of its property. Although it had the powers, the council decided that it was not in its interest or that of the tenants to pursue the matter. Therefore, I agree with the points that have been made by the noble Lord, Lord Paddick. One has to question the motivations of the Government for pursuing this legislative change when a council which sees itself as a flagship of the Conservative Party has not pursued the avenues that were open to it.
Lord Rosser (Lab)
The noble Baroness, Lady O’Loan, and my noble friend Lady Lister of Burtersett, have already made a strong case for deleting Clause 91. The Government, of course, have put down amendments that make some changes to that clause, but do not address the basic objections, which have also been expressed for a second time by the Joint Committee on Human Rights, about the disproportionate impact of eviction on other members of the household who have not engaged in such riot-related behaviour. The Joint Committee on Human Rights was not moved by the references to judicial discretion, so clearly it did not rate very highly in its thinking as a safeguard. The Joint Committee also expressed the view that it was the job of criminal law, not civil law, to deter riot-related offences, and to administer sanctions when such offences were committed. As has been said, courts when sentencing, quite rightly, already take a much more serious view of offences committed as part of a riot, and under cover of a riot, as was shown by the sentences given to those convicted following the riots in 2011. Many people were sent straight to prison when they probably would not have been given such a sentence if the offence had not been committed in association with the riots.
Clause 91 does not just relate to offences in the locality in which the offender lives, but covers such offences anywhere in the United Kingdom. It is clearly seen as an additional punishment by the Government, and it is not related to the experience of victims in the locality in which the offender lives. The Government are seeking to make some amendments so that Clause 91 would not apply where under-18s are convicted of a riot-related offence or in respect of the most minor offences. However, that still means that, since Clause 91 relates to repossession where a person residing in the dwelling house has been convicted of a riot-related offence, the penalty of eviction affects everybody else in the house. People who are guilty of no crime, such as pensioners with a son or daughter living at home, or children whose older brother or sister, aged 18 or over, has been convicted, are the innocent victims of Clause 91.
It will certainly act as a deterrent to a member of a household reporting another member of the household to the police for rioting if they know that the effect of such action, which surely we should encourage not discourage, would be to find themselves evicted as a result, under the terms of the clause. Why do the Government take the view that riot-related offences justify repossession and eviction when they do not take that view over equally serious or more serious offences? In addition, why do they think that those who commit riot-related offences away from their own locality and who own their own home or live in a house that is owner-occupied should face no further penalty other than the sentence of the court for the crime that they have committed but that those who live in rented accommodation should not only receive and serve the sentence of the court for the riot-related crime that they have committed but face eviction from the house in which they live in their own locality, along with other members of the household, who could include the tenant, who have committed no riot-related offences—indeed, no offences at all—and will be made innocent victims of Clause 91? The Government say that the Bill is about victims, but this clause creates victims.
The amendment to delete Clause 91 is in the name of the noble Baroness, Lady O’Loan, and my noble friend Lady Lister of Burtersett. It is that amendment that we will support if a vote is called.
Anti-social Behaviour, Crime and Policing Bill
Lord Ponsonby of Shulbrede Excerpts(10 years, 11 months ago)
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“( ) Provisions should be put in place under a designated senior police officer to ensure scrutiny of decision making through a local scrutiny panel.
( ) The strategy and usage of cautions and out of court disposals should be reviewed by a local scrutiny panel on a regular basis.
( ) The use of cautions and out of court disposals for serious cases and repeat offenders should be particularly scrutinised.”
Lord Ponsonby of Shulbrede (Lab)
My Lords, this is a probing amendment, which seeks to put in place a scrutiny element in decision-making through a local scrutiny panel. I have taken the wording of the amendment from the recently published government document, Review of Simple Cautions, which was written by the College of Policing and the Government and was published in November this year.
Scrutiny is a method by which out-of-court disposals can be reviewed by magistrates, district judges, PCCs, the police, the probation service and YOTs. In London, I understand that MOPAC, the Mayor’s Office for Policing and Crime, would take the lead.
I understand that the necessary legislation is in place for scrutiny panels to be established and that a number of PCCs have already introduced some form of scrutiny panel. The prime purpose of these panels is of course to help the public maintain confidence in out-of-court disposals. I am moving this probing amendment because I believe that the rollout of scrutiny panels has been very patchy across the country. As far as I know, no scrutiny panels have been established in London, and I believe that that is a cause for concern.
It is worth reviewing the figures relating to the massive change in recorded crime that we have seen in recent years. In 2008, there was a maximum of 360,000 cautions. Currently, the number of cautions issued by the police is about 200,000, which represents a huge reduction. In London, in our youth courts over the past three years we have seen a halving of the number of cases brought to court. There are any number of explanations for this huge reduction in recorded crime, and I shall not go through all the possible ones. However, I will list some of them because I know that they have been widely debated in the press and elsewhere.
The first is that there is indeed a genuine reduction in the level of crime, which of course is to be welcomed. A second explanation that is commonly advanced is the cuts to the police service. A further explanation is the massaging of reported crime figures, as was alleged in the Public Administration Select Committee on 19 November. A further explanation is the removal of police targets for offences brought to justice. Another is that the police are concentrating resources on gang-related offences rather than specific drug-related ones: namely, possession with intent to supply. That explanation is specific to the London area.
Lord Ahmad of Wimbledon (Con)
My Lords, I thank the noble Lord, Lord Ponsonby, for tabling his amendment. As he explained, it is probing in nature and seeks to establish a local panel to scrutinise the strategy and use of cautions and out of court disposals in particular. I listened carefully to the reasoning given for the reduction in crime; there were some interesting comments.
I draw your Lordships’ attention to the out of court disposals review that is currently taking place, in partnership between the Ministry of Justice and the police, and in conjunction with the Home Office, the Attorney General’s Office and the Crown Prosecution Service. The review will look at all out of court disposals currently used against adults and consider how they might be reformed. The aim is to ensure that out of court disposals are as effective, simple and transparent as possible. The review includes conditional cautions and community resolutions, both of which will be subject to the community remedy. This public consultation was launched on 14 November to seek the views and experiences of professionals, victims’ organisations and the public. The consultation will conclude on 9 January and the review as a whole will conclude later in the spring.
Two key themes of the review—picking up on a point raised by the noble Lord, Lord Ponsonby—are transparency and accountability. The consultation asks the public to consider whether they think there is more information about out of court disposals that should be shared; whether they are able to hold the police to account for the way that out of court disposals are used; and how they think that the Government can make the out of court disposal system more accountable.
In particular, the consultation asks for views on what sort of offences out of court disposals are appropriate for. I agree that the use of cautions for serious offences and repeat offenders requires careful consideration in each specific case. The Review of Simple Cautions, to which the noble Lord referred, has already been completed. The review made it clear that cautions should no longer be used for indictable only offences, and certain serious either-way offences, unless there are exceptional circumstances, and that those who persist in criminal activity should no longer expect to receive a caution. Those changes have been made to the guidance on simple cautions.
The out of court disposals review is also looking at this issue. Currently, the guidance for all out of court disposals indicates that they are available for all offenders, but are primarily intended to address first-time offending. The latest data, for 2012-13, show that 60% of those getting a caution—that is, either a simple or a conditional caution—have not received a previous caution.
On the issue of senior officer oversight, the simple cautions review recommended that there should be greater local accountability and scrutiny of decision-making. The review further recommended that each force should have a senior officer identified as responsible who would provide local leadership and accountability and who would make use of local scrutiny panels. We are considering that recommendation carefully as part of the wider out of court disposals review. There are clearly links between the matters considered in the simple cautions review and the out of court disposals review, and we will consider these alongside each other. Further, I assure the noble Lord that the issues he and others raised in this debate will be fed into the out of court disposals review.
The draft guidance on the community remedy signposts existing CPS guidance on the use of conditional cautions. The community remedy will work with any changes to conditional cautions or community resolutions that take place as a result of the review, but we need to be careful not to impose anything in the Bill or the guidance that will contradict or restrict any changes to those systems.
I will pick up a few points made by the noble Lord, Lord Rosser. He asked about the crimes for which the remedy might be used. They are low-level criminal damage, low-value theft, minor assault without injury and anti-social behaviour, and are currently set out on page 15 of the draft guidance. In addition, the noble Lord asked whether the offender could insist on prosecution. The answer is no. He asked whether the community remedy only applied to first-time offenders; I have already covered that particular issue. I was asked what records are kept. The police will keep records in accordance with the Data Protection Act 1998 and will retain them if there is a specific police purpose. As I said, a much more detailed review will end in January of next year.
The noble Lord, Lord Ponsonby, indicated that this was a probing amendment. I hope by what I have said that that I have conveyed that there are broader issues to consider as well. We will undoubtedly return to this issue once the current review results are out. In the interim, I hope that the noble Lord is reassured both by my explanations and my commitment that the content of this debate will be included in that review, and that he will be minded to withdraw his amendment.
Lord Ponsonby of Shulbrede
My Lords, I thank the noble Lord, Lord Ahmad, for that response to my amendment. I am pleased that there will be a further review of out of court proposals. Perhaps there should be a review of the scrutiny panels themselves? The purpose of my amendment is not to address a lack of legislation. The legislation has been in place for years: it is just that it has not been implemented.
Lord Ahmad of Wimbledon
On that point, as I said in my response, one thing that the wider review is doing is talking directly to local players on the ground, including local police, to feed back on the effect. The noble Lord is quite right that legislation is available. What we need to see is practical implementation. We hope that the more detailed review will address those issues.
Lord Ponsonby of Shulbrede
Once again, I thank the noble Lord, Lord Ahmad, for that explanation. I will make one last point. In London, where 25% of all crime in England and Wales takes place, as far as I am aware no scrutiny panels are in operation. Having said that, I beg leave to withdraw the amendment.
Anti-social Behaviour, Crime and Policing Bill
Lord Ponsonby of Shulbrede Excerpts(11 years ago)
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Lord Greaves
My Lords, do the Government expect more or fewer people to be arraigned before the courts for injunctions under this new system, compared with people given ASBOs? Have they made an assessment of that? This is important because, we hope, the number of people who are given the new injunctions or who at the moment are given ASBOs, are a minority—quite a small one—of people who cause some kind of low-level anti-social behaviour in the sort of communities that the noble and learned Lord has been talking about.
Do the Government have an assessment of how the new system will affect the numbers who get to the end of the road and have one of these badges—if that is what they are—put upon them? Secondly—I thought about this while listening to the noble Lord, Lord Harris of Haringey—the fundamental thing is: what level of resources are on the ground to deal with these problems and to prevent people getting either the new injunctions or ASBOs? The harsh reality is that in many parts of the country at the moment, that resource is going down.
In my area, what people might think of as a crime and disorder partnership—we call it a community safety partnership—has been extremely successful in the towns and wards of the borough. One meeting that I try to go to each month as a ward councillor is called a PACT meeting—police and communities together. It is a group of residents who meet police and councillors in the ward each month to talk about these problems: local crime and particularly disorder and anti-social behaviour. It works. Sometimes, a handful of people turn up. Then, when something erupts in some of the streets, a lot of people turn up and it provides a focus for dealing with these problems. However, it requires the local police to have the time and resources to take part in such activity. It also requires the local authority’s anti-social behaviour staff to be there and to be prepared to get involved at the case, area and street levels. If it is in an area of social housing, it involves the social housing providers as well. Other people get involved as well.
In our part of the world, that system is being slowly withdrawn for purely financial reasons, as the police cannot afford to devote the resources to it that they have done. If the police are given a choice between relatively high-level and low-level crime, they will put more resources into high-level crime. They might also be given a choice between low-level crime and local disorder or the preventative work where the local neighbourhood teams go round to talk to people, getting to know the patch and its lads and lasses who are hanging around on the streets and might get into bother. The police might find diversionary activities for them, if they have the resources. If that is going on, the system will work, but once that is withdrawn, then all the IPNAs, ASBOs and anything else in the world will not solve the problem. The numbers will increase, because the numbers who get to that level will increase, but the problems on the ground will get worse.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I want to make one brief point which follows on from that made by the noble Lord, Lord Greaves. At Second Reading, the Minister made a lot of the breach rates for ASBOs; he said that they were about 60%. The point that I made in my Second Reading speech was that, in my experience as a sitting magistrate, breach rates have declined over the past few years as ASBOs have been more appropriately introduced. I have checked my recollection with my colleagues and I think that they would agree with my comments. Why does the Minister think that breach rates will decline when he is proposing through IPNAs to reduce the burden of proof to a balance of probabilities, and to address nuisance and annoyance rather than “harassment, alarm and distress”? Those two changes are very likely to lead to an increase in the number of breaches, which seemed to be a fundamental point in his seeking to replace ASBOs. I know that later in this Committee there will be a proposal to run the two systems in parallel, which seems a sensible way forward while the IPNA is bedded in.
Anti-social Behaviour, Crime and Policing Bill
Lord Ponsonby of Shulbrede Excerpts(11 years ago)
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Lord Ponsonby of Shulbrede (Lab)
My Lords, I support the noble Lord, Lord Flight. I remind the Committee that I sit as a magistrate in central London, and in my time I have certainly given many ASBOs for persistent and aggressive begging. When I sit, it is relatively commonplace to have an ASBO application from Westminster City Council, and it is something that magistrates are experienced at dealing with. As I said at Second Reading, in my experience, magistrates are more sceptical about granting ASBOs than they were when they were first introduced, and certainly not all ASBOs that are applied for are given.
The noble Lord, Lord Flight, has set out the case very well. I have been lobbied by Westminster City Council and the central point is that, if the existing mechanisms within local authorities are used to dealing with a particular administrative structure, there will inevitably be a cost if one changes that structure. Therefore, I think that it is incumbent on the Minister to explain why he thinks that the new measures he proposes to introduce will work more effectively and potentially reduce those costs. As I said, certainly from the point of view of magistrates administering this, it is a relatively well oiled machine, and we take a sceptical view when we put them in place in the first instance.
Baroness Hamwee (LD)
My Lords, the noble Lord knows that I have concerns about this amendment. I hear what he says about other cities. I have obviously not been able to undertake a scientific assessment but there seems to be quite a variation in views—in London, at any rate—about whether this is the right way to go about the matter.
The language in the amendment seems to be very general;
“intentional or deliberate anti-social behaviour”,
could mean pretty much anything, as we heard earlier. I would have thought almost all anti-social behaviour could potentially be persistent; most conduct would be potentially persistent, but that is not really my concern. The begging that we have heard about troubles me a lot for a variety of reasons; one of them is the criminal gangs behind the beggars. I am not immediately convinced that this measure, dealing with those who are forced into the activity, will actually solve the problem or deter the activity. I am also concerned—though I accept this might be the position with the current arrangements—about the revolving door of arrests. Some are in the cells overnight and then they are out again.
There is other legislation as well; I am sorry that the Minister has apparently not responded at length. I had understood that quite a long letter giving the Government’s views had gone out. That is a matter for my noble friend. I have not seen the letter; I just heard that there was one. It dealt with the other legislation, which might be quite old. That does not mean to say that it is necessarily bad.
I went to the noble Lord’s briefing with Westminster City Council. I heard Councillor Aiken’s views very powerfully expressed. I did not gain the impression that everything was okay now, so I was a bit confused as to the argument against scrapping the current system. I may have been wrong, but I picked up the feeling that there were problems now.
Anti-social Behaviour, Crime and Policing Bill
Lord Ponsonby of Shulbrede Excerpts(11 years ago)
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Lord Ponsonby of Shulbrede (Lab)
My Lords, I shall speak mainly to Parts 1 to 6 of the Bill. I remind the House that I sit as a magistrate in central London, although I am speaking in a personal capacity.
The Government are essentially proposing to replace ASBOs with two orders: the IPNA—the injunction to prevent nuisance and annoyance—and the crime prevention order. As we have heard, the IPNA is a civil injunction that replaces a range of current orders and there is a maximum penalty for breach of two years’ custody. The crime prevention order, which will be available on conviction through the criminal courts, has a maximum penalty of five years’ custody on breach.
The Government’s objective is to reduce the number of civil orders available, and to reduce the perceived bureaucracy of the current system. The flaw in the Government’s approach is to have fewer orders covering a wider definition of nuisance and annoyance, and with fewer legal safeguards, in a bid to reduce bureaucracy. The point is forcefully made by the Home Affairs Committee in its February 2013 report on the Bill, which said:
“Each time successive Governments have amended the ASB regime, the definition of anti-social behaviour has grown wider, the standard of proof has fallen lower and the punishment for breach has toughened”.
Annoyance and nuisance in local communities are indeed a blight on people’s lives. I look forward to the contribution from the noble Lord, Lord Pannick, this evening because I am sure he knows better than many about the blight of annoyance and nuisance. I do not mean the noble Lord, Lord Pannick, but the noble Lord, Lord Paddick—although the noble Lord, Lord Pannick, knows about it as well.
Changing the names of orders and tinkering with the definitions may make some procedures simpler. However, changing procedures always leads to agencies having to find new ways to process things and that can be a significant problem. What really matters is that victims have the confidence in the procedures and sentences given, and offenders are deterred from repeat offending.
I read over the Home Office’s White Paper Putting Victims First and I agree with the central two observations: that anti-social behaviour remains stubbornly high, and that victims’ needs are not addressed quickly enough. However, it remains true that there are many thousands of victims who do not report low-level crimes to the police because they have little confidence that they will receive a proper response. My own view on this is that all victims, witnesses and defendants should be able to log on to a website to see the progress of their cases, the requirements of particular sentences and how these requirements may change as the sentence progresses.
I have some personal experience of administering ASBOs and it has certainly been my experience that they have been more appropriately sentenced in recent years. When I first started as a magistrate about eight years ago, it was quite common to have breaches of ASBOs where you could genuinely say that the offender was set up to fail. In my experience, that is less common these days.
The introduction of the proposed changes in the Bill have to be seen in a wider context, and that wider context is the explosion of out-of-court settlements that we have seen over the past 10 years. At present, nearly 50% of all recorded violent offenders receive a caution. I acknowledge that Chris Grayling has made an announcement on this, and indictable-only offences will not be able to be cautioned, and that is a step in the right direction. Nevertheless, that is a huge figure for the number of people receiving cautions for violent offences.
The thing that I believe most profoundly is that there needs to be proper scrutiny of the cautions that are applied. I understand that the appropriate legislation is in place for scrutinising police cautions, but in my experience, this is simply not happening; it is simply not happening here in London. I argue that the proper scrutiny of cautions, so that they are not applied inappropriately, would do more to enhance victims’ confidence in the criminal justice system than changing the names and definitions of particular orders. I believe that is of profound importance.
I, like others, have received the Liberty briefing. Liberty believes that the overuse of ASBOs and similar orders,
“dangerously blur the distinction between serious criminal activity and nuisance, create personalised penal codes that set the young, vulnerable or mentally ill up to fail”,
and can have the effect,
“of fast-tracking individuals into the criminal justice system rather than diverting them away”.
I take the point made in the Liberty briefing, but we have seen exactly the opposite effect, particularly in our youth courts, where we have seen a massive reduction in the number of youths who come to court. Very often, when they come to court, they are up in front of the youth court on very serious charges and have a long and established history of pre-court interventions that have not worked. So there is another side to the story of fast-tracking people into the criminal justice system. Sometimes the criminal justice system does not pick up people appropriately early enough.
I am not saying that Liberty’s point is wrong and that I am particularly right about when people go into the criminal justice system, but I am saying that public confidence is key to the whole administrative process. I believe that poor administration of cases does more to undermine people’s faith in the criminal justice system than any other matter.
I shall speak briefly about three specific aspects of the Bill. The first is Clause 86(5) and covers the point the noble Lord, Lord Faulks, made about the recovery of possession of dwelling houses. I live in the London Borough of Wandsworth. I contacted a local councillor, Tony Belton, about what happened after the riots because Wandsworth was well publicised for trying to evict council tenants where youths under 18 had taken part in the riots. What actually happened is that nobody got evicted in that situation. The council, which is a Tory council, did not pursue the evictions. The only people who were evicted were single men who were sent to prison for long periods of time. So I ask the Minister: what is the problem? That seems to me to be a reasonable outcome. The council did not even pursue the evictions that were so well publicised.
The second point I want to make is about theft from shops where the value is less than £200. There are other pre-court interventions which can be administered. First, there is a penalty notice for disorder where you can be fined £80, and the next is a caution, which requires an admission of guilt, but you do not have to go to court, so it could be on the third or more offence of shoplifting that you get into court. That seems to trivialise the offence. In addition, many shoplifters have drug, alcohol and homelessness problems, and when they come to court they can be picked up and suitable sentences applied.
My third and final point is a very specific point about the victim surcharge for youth offenders. At the moment, magistrates and judges are obliged to put in place the victim surcharge. I have several times had cases where a youth has assaulted their parent or guardian, and because of this order, the court has been obliged to make the parent or guardian pay the victim surcharge when they were the one who was assaulted. It is absolutely ridiculous, but the court has no discretion in the matter.
On the Labour Lords blog today, my noble friend Lady Smith described this Bill as a “Sunday afternoon drive” with,
“many twists and turns and the inevitable dead end”.
I would liken it more to a drive around southern England yesterday afternoon, after the storm had ravaged the countryside. Yes, there are twists and turns and dead ends, but the road map is not very helpful and the Government do not know where they are going.
Crime and Courts Bill [HL]
Lord Ponsonby of Shulbrede Excerpts(12 years, 6 months ago)
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Lord Ponsonby of Shulbrede
My Lords, I will speak briefly on Parts 2 and 3 of the Bill. I start by acknowledging that it is not particularly party politically sensitive but is largely about the administration of justice, and I will address the matters in that spirit and in clause order.
Clause 17 proposes a single family court with a single point of entry. As far as I am aware, the proposal has been generally welcomed. I have the privilege of having just been appointed to sit on the Family Proceedings Court. As a new appointee to this jurisdiction, I will be very interested to see how it progresses. Colleagues generally welcome the change, although, as the noble and learned Baroness, Lady Butler-Sloss, said, lay magistrates are looking for reassurance that their role in the Family Proceedings Court, which is vital, will be protected. They have expressed this concern.
Clause 18 concerns the diversity of the judicial appointments process. As far as I am aware, the magistracy as a group is more diverse than more senior members of the judiciary. Nevertheless, it may be worth exploring whether some ideas about senior members might appropriately be applied to the appointment of magistrates as well.
Clause 20 concerns the payment of court fines. As the noble Lord, Lord Henley, said in his introduction, some two-thirds of all sentences are fines. I will make many of the same points as the noble Lord, Lord Touhig. Clause 20 concerns the role and powers of fines officers. The Bill allows for the recovery of charges incurred in the recovery of fines where offenders have defaulted on their payments. Fines officers are to be treated as not making judicial decisions, which will enable their functions to be carried out by contracted-out staff. While I am not against the proposal, it fails to address a shortcoming in the current system; sentencers, namely magistrates and judges, often do not know the level of unpaid fines when they impose new fines on an offender. Therefore, they can make the situation of unpaid fines worse rather than exploring other sentencing options where possible.
One possible remedy for this is to make it a requirement for sentencers to know the level of unpaid fines before imposing new ones. I canvassed this possibility with magistrate colleagues over the past week or so and there was relatively little enthusiasm, as it would impose a large administrative burden on the existing system. Nevertheless, I put it to the Minister that this administrative change would do more to combat the level of unpaid fines than the proposals that the Government advance in the Bill.
We have heard a lot this evening about Clause 23, which concerns the community and non-custodial sentencing of adults. It acts as a placeholder for the Government to bring forward proposals on community sentences at a later stage. In her intervention, the noble Baroness, Lady Linklater, mentioned the White Paper that was published last week. There are two consultations in progress. The first is a Ministry of Justice consultation entitled Punishment and Reform: Effective Community Sentences. The second is the Home Office White Paper on anti-social behaviour orders. My understanding, unlike the noble Baroness’s, is that the amendments that are going to be proposed by the Government are to do with the Ministry of Justice consultation and not the Home Office White Paper. I see that the noble Lord, Lord Henley, is nodding his head.
I have two general points to make about Clause 23. The first is similar to the point made by the noble Earl, Lord Listowel, and the noble Baroness, Lady Linklater, that whatever the proposals are, it is of huge importance that magistrates and the judiciary have confidence in community sentences. This issue has been brought up on previous criminal justice boards. It should be a statutory requirement for probation trusts and magistrates’ Benches to liaise and to be properly informed about the availability of community sentences. I know the Government’s standard response to this point is that nothing prevents that and it is a desirable outcome, but my point is that it is an uneven outcome in different parts of the country if it is not a judicial requirement. This point was made by the noble Baroness, Lady Linklater, and the noble Earl, Lord Listowel, and I strongly support their view that it should be made a statutory requirement for this liaison to happen.
My second point about Clause 23 anticipates the amendments the Government will bring forward on Report. These are likely to include increased options for more sentencing in the community. It is inevitable that some of the options which the probation trusts offer will be more available in big cities than in rural areas or small towns. I readily acknowledge that this is a practical problem, but you could end up with sentencers knowing an offender’s address before they know the details of the sentence being passed. You could have an extreme situation in which a sentencing Bench on the same day will allow one vulnerable offender to escape prison while another offender will be sent to custody purely on the basis of their address. This is a slightly extreme example, but it is entirely possible as there is a lack of consistency across probation trust areas. This is perhaps an inevitable consequence of localism, but it is clearly inequitable and not proper justice. The answer to this conundrum is for proper national guidance to ensure that, broadly speaking, the same options are available to sentencing Benches all over the country.
Finally, I turn to Clause 27 on drug-driving. I know my noble friend Lord Simon is going to say something about this, and I read with interest the contribution of the noble Baroness, Lady Meacher, in the debate on the gracious Speech. I am aware of the complexity of this issue by reading some of Sir Peter North’s report. I have sat on a number of drink-driving appeals over the past few years and I have listened to expert witnesses giving their testimony about the unreliability of the equipment involved in drink-drive tests. It so happens that in an earlier career of mine as a junior technician I dealt with similar equipment, so I know how complex it is. Without wanting to be too prejudicial, I will say that it is very easy for expert witnesses to come up with extremely complex reasons why the equipment is not to be relied on. That will only be much exaggerated when you are dealing with a multitude of drugs rather than just alcohol. It is very important to get this element of the Bill correct, otherwise there will be a lot of opportunities for expert witnesses and lawyers to create mischief in this situation.
I look forward to taking part in debates on this Bill. It is an important Bill and there are many details to address.
Protection of Freedoms Bill
Lord Ponsonby of Shulbrede Excerpts(12 years, 8 months ago)
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Baroness Stowell of Beeston
My Lords, I am very grateful to the noble Lord, Lord Ponsonby. I know that he has waited very patiently all afternoon. It may be of assistance to the House for me to remind noble Lords that, at Bill do now pass, once the Motion has been moved formally, as it just has, it may be opposed and reasoned or delaying amendments to it may be moved. However, in other circumstances it is not normally debated.
Lord Ponsonby of Shulbrede
My Lords, I wish to raise a new issue, which came to my attention at the end of last week. I was advised by the Public Bill Office that I should take the slightly unusual step of raising this new issue on this Motion. I also informed the Minister’s office that I intended to do this.
It is the intention of the Bill to adopt the Scottish model for protections for the DNA database, and therefore to find an equivalent to the Scottish sheriff courts in England and Wales. As currently worded, the Bill requires the hearings to be before a district judge from the magistrates’ court. This is too restrictive; all that is necessary is for the application to be made to a magistrates’ court. Whether to put the matter before a district judge or a lay bench of magistrates can then be decided locally. This may be a small point but it is one of principle and practicality.
The point of principle is that lay benches have exactly the same powers as district judges. There is only one exception to that, which is in the matter of extradition. Beyond that, it is a point of principle in magistrates’ courts in England and Wales that lay benches have exactly the same powers as district judges.
The point of practicality is that limiting applications to district judges will mean unnecessary inconvenience to citizens. There will be delay and there may be extra costs. The reason for that is that district judges tend to sit in large cities and may be less readily available than lay benches.
I realise that this matter is being raised at a very late stage. I have given the noble Lord notice of it and I look forward to his response.
Baroness Hamwee
My Lords, I shall speak for a moment in the hope that my noble friend Lord Dholakia will get here. I know that he has raised this matter with the Government as well. It is welcome to have unusual procedures available to make sure that we get the final product right. Someone is telling me that my noble friend is not here. I merely wanted to record that he has raised the same matter. I am sure he will be grateful to the noble Lord, Lord Ponsonby, for raising it now.