Delivering Justice for Victims

Lord Ponsonby of Shulbrede Excerpts

Thursday 16th December 2021 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we welcome the Statement. We hope that the proposed consultation exercise is dealt with rapidly, that people are listened to and that we see legislation as soon as possible. Can the Minister tell us when that is likely to happen? I confirm that we will work constructively with the Government to ensure that the new victims’ law is fit for purpose and is a law of which we can be proud.

The Statement reminds us just how urgently we need a new law. The number of victims who have dropped out of the system has doubled in the last five years. It is concerning that confidence in the justice system is so poor. Three in every five victims do not even report a crime, one-third of victims would not report a crime again and one-third of victims who do go to the police drop out of the process before any case can come to court.

There are steps that the Government could take now that would help the situation. In October 2021 the National Audit Office released a report on the Government’s handling of the court backlog. It found that the Crown Court backlog had already increased by 23% in the year leading up to the pandemic and had increased by a further 48% since. The NAO said that both the Ministry of Justice and its courts agency were not working together properly to solve problems that had their roots in pre-pandemic decisions.

One in 67 rape complainants sees a case come to court, and it can take four years for that process to be completed. The latest data from the CPS shows that the number of rape convictions fell by 6.7% in the last quarter. At the current rate it would take the Government 18 years to return to pre-2016 levels of prosecution. There are 3,357 victims of violent and sexual crime who have already been waiting for over a year for their day in court, and a further 654 victims of these horrific crimes have been waiting for over two years. Can the Minister assure us that the Government are taking all measures necessary to put this right?

We have now had five Secretaries of State for Justice promising a victims’ Bill, and all five have failed to deliver. I have heard victims say that their experience of the justice system is worse than the crime itself. Just 19% of victims believe that a judge takes into account the impact of the crimes on them, and only 18% believe that they are given enough support. Victims do not want consultation; they want action, and the Labour Party has a ready-made Bill to clear the backlog through an increase in Nightingale courts and to fast-track rape and sexual violence cases. Our victims’ Bill would also improve rights, strengthen protections and accountability, improve communications and ensure that victims were no longer treated as an afterthought.

The Statement from the Government is welcome, but they must now match their warm words with deeds and ensure that they put victims at the very heart of our criminal justice system.

[Lord Paddick (LD)]

My Lords, as a victim of the Police, Crime, Sentencing and Courts Bill, I have to say that dealing with this Statement at this time on this day is not delivering justice to victims.

Seriously, though, I should declare an interest as a victim of two crimes in recent years. One was a homophobic hate crime that my Norwegian husband was a witness to. He said to me afterwards that he would never again be involved in the British criminal justice system as a result of his experience in court, where he felt that he was on trial. The other was a burglary where the perpetrator was caught on closed-circuit television but the police refused to investigate further. In a subsequent meeting with a police super- intendent, he admitted that many cases that were solvable were not being pursued because of a lack of police resources. Is it any wonder, as the noble Lord, Lord Ponsonby of Shulbrede, said, that three in five victims do not report crimes, and that one-third would not report them again having experienced the criminal justice system? It seems that my husband and I are not alone.

The Government say that they have strengthened the victims’ code. What improvements have there been as a result? More money has been invested, according to the Statement, but what impact has this had on victim satisfaction? We should be looking for outcomes, not outputs.

The Statement says that it wants victims to

“properly engage at every step.”

Research shows that restorative justice significantly increases victim engagement and satisfaction. What plans do the Government have to fund more restorative justice programmes?

The Statement says that the victim will be consulted before charging decisions are made

“in certain types of case”.

Can the Minister explain what types of case are being referred to?

The Statement says that the Government

“will increase transparency in respect of the performance of our criminal justice agencies.”

What will the Government do when they discover that the reason for poor performance throughout the whole criminal justice system—from the police to the CPS, legal aid and the courts—is that it is underfunded? It is all very well to

“enshrine the victims’ code in law”,—[Official Report, Commons, 9/12/21; cols. 595-6.]

but if the criminal justice system does not have the resources to fulfil its obligations under the victims’ code, how will making it a statutory responsibility help?

The Statement says that the Government will publish a report on progress against the rape review action plan. Research clearly shows that victim satisfaction is the most important outcome measure in rape cases; being believed and cared for are the most important elements of rape survivor satisfaction. Does the report detail changes in victim satisfaction? If not, why not?

The Government are long on words and short on delivery. Trust and confidence in the criminal justice system have declined in the decade or more that the Conservatives have been in power. I can understand that the Government welcome the fact that the police cannot investigate some crimes, despite overwhelming evidence, when it is the Government who stand accused, but for the rest of us, if we cannot trust the police, the CPS and the courts to protect us when we are victims of crime, we are in serious trouble. You cannot get a quart out of a pint pot, which is what the Government appear to be trying to do with these measures.

Finally, I am reminded of colleagues who, when the Government do something we agree with, then go on to question the Government’s motives. I do not know whether the Minister celebrates Christmas, but I hope he enjoys the break, whatever the motivation for having one.

Police, Crime, Sentencing and Courts Bill

Lord Ponsonby of Shulbrede Excerpts

Lords Hansard - Part 1 & Lords Hansard - part one & Report stage
Wednesday 15th December 2021 Lords Chamber

It is quite extraordinary that the police are being given the power to be judge, jury and executioner, when, to date, the Government do not know how many conditional cautions have been administered or what sorts of conditions the police have been imposing. Amendment 66B is the least we can do to exert at least some control over what will be the reverse of open justice.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, speaking first to the amendment tabled by the noble and learned Lord, Lord Thomas, which would make provision for regular reviews of out-of-court disposals, there is a method for this. It is scrutiny panels, which were introduced in previous legislation. They work very unevenly across the country. As a magistrate, I have served on a number of scrutiny panels for the British Transport Police and for a certain area of London, for both adult and youth offences. It is a very interesting exercise because you work with the police, the CPS, probation and some representatives of civil society. We had a rabbi on the scrutiny panel I was on for the British Transport Police, and we reviewed the out-of-court disposals.

The big problem with this approach was that there was no central record of what we were doing with our assessment of the out-of-court disposals. As far as I could find out, neither the Home Office nor the Ministry of Justice collected any of the results of these scrutiny panels. In fact, scrutiny panels do not sit in some areas of the country. Nevertheless, the approach advocated by the noble and learned Lord, Lord Thomas, is a good one. He said that he had held sympathetic discussions with the Ministry of Justice on this matter, so I wish him well with that endeavour.

I too am very sympathetic to Amendments 66C and 66D. As the noble Lord, Lord Paddick, said, simple cautions are quick, simple and, when they work, effective. One of the downsides of being a magistrate is that you see things only when they are ineffective—that is why they have come to court in the first place. Of course, if a simple caution is effective they would not come to court, but the noble Lord makes a very strong point about having something that is quick and simple for the police to administer and which is, for a first-time offender, a salutary experience: they have admitted their guilt, they have got the caution and they are on their way relatively quickly.

It is a similar point for the on-the-spot penalties for littering and other minor offences. A quick on-the-spot penalty will have a salutary effect for someone who is largely law abiding. It seems a pity to lose that from the armoury of the police. If the noble Lord moves his amendment, we will support it.

[Earl Attlee (Con)]

My Lords, the noble Lord, Lord Paddick, makes a very good case for his amendments. I hope that my noble friend the Minister can satisfy the House, but I think that he will struggle a bit.

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[Earl Attlee (Con)]

My Lords, I have no objection to short prison sentences per se. The problem I have is that our current prison system is so hopelessly ineffective at rehabilitation. That is why in Committee I tabled my Amendment 241, a proposal for drastic reform. I am grateful for the response I got from the Committee, and indeed from my noble friend the Minister, and that is why I saw no need to table it on Report.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I will speak first to Amendment 82A, to which I put my name, together with the noble Lord, Lord German. It specifies that short periods in custody should not be an inevitable response to someone with a history of relatively minor offending and that sentencers should be required to state the reasons for giving a prison sentence up to and including six months.

A coalition of views has been expressed in support of the amendment. We have, if she does not mind being described in this way, a campaigning right reverend Prelate who consistently talks about short prison sentences, particularly as they affect women, and my noble friend Lord Bradley with his expertise in this area regarding harmful effects on women in particular but also people with mental health problems. I also include myself in the coalition, because I regularly sentence short sentences.

The point I have made in these debates before is that, while the reoffending rate is indeed as bad as the right reverend Prelate said—there are high reoffending rates—in my experience as a sentencer, I sentence short sentences only when a community sentence has failed. I literally cannot remember a time when I have sentenced a short custodial sentence where there have not been—sometimes multiple—failures of community sentences. When I sentence, I am comparing a 100% failure rate for the community sentences of the people in front of me with the 60% failure rate of those who come out of short custodial sentences and reoffend within a year, so I am making a very unfortunate calculation when I give short custodial sentences.

Nevertheless, the noble Lord, Lord German, made absolutely the right point. We are trying to help the Government realise their own policy. The Government acknowledge what I have just said regarding the inevitability, sometimes, of short custodial sentences. The real answer is to come up with a robust, community-based approach that works and that sentencers have some level of belief in. I look forward to the Minister’s response to Amendment 82A.

I turn to the other amendments in the group. As I said in Committee, the Labour Party will abstain—with reluctance—if the noble Lord, Lord Marks, chooses to move his amendments to a vote. The point made by the noble Lord, Lord Faulks, was essentially the point the Minister will make, which is that what we are seeing here is the Government’s response to a particular set of offence types and that it is a policy decision on behalf of the Government, which they are entitled to take and which they see as a response to public demand. Frankly, I am not comfortable with the position I am taking on this, but the view of the Opposition is that we will abstain if the noble Lord, Lord Marks, decides to move his amendments to a vote.

[Lord Wolfson of Tredegar (Con)]

My Lords, this group of amendments broadly covers topics related to custodial sentences. We debated them at some length in Committee. The Government have listened carefully to the arguments put forward by noble Lords in support of these amendments. In particular, I am grateful to the noble Lord, Lord Marks of Henley-on-Thames, and others for discussing them with me. However, the Government remain unpersuaded that these amendments are necessary. I will briefly explain the reasons why and will begin with Amendments 71 to 78 in the name of the noble Lord, Lord Marks.

As the noble Baroness, Lady Jones of Moulsecoomb, reminded us, we had a lengthy debate in Committee on Clause 102 and minimum sentences. For the avoidance of any doubt, this clause does not introduce any new minimum sentences or new offences. Rather, it seeks to ensure that courts depart from imposing the minimum sentence only in exceptional circumstances. We are making sure that in these cases, where a minimum sentence applies, the criteria by which the courts can depart from the minimum sentence are consistent and are set out.

The amendments use the term

“contrary to the interests of justice”.

This term is not itself unusual, indeed at Section 59 of the Sentencing Code courts are directed to follow the relevant sentencing guidelines unless

“satisfied that it would be contrary to the interests of justice to do so”.

However, as the noble Lord, Lord Marks, accepts, these amendments would create a new and different test in respect of which a court can depart from imposing a minimum sentence when sentencing for these specific offences. The noble Lord’s amendment could be seen, as I think he tacitly accepted, as creating a lower threshold at which the courts may depart from imposing the minimum sentence, whereas the Government intend to raise and clarify the threshold.

As I explained in Committee, the necessity for this measure is supported by the data. In 2020, approximately half of all adults convicted for a third-time domestic burglary offence received less than the minimum sentence, even after taking account of the early guilty plea. We should not forget that minimum sentences are, in the main, for repeat offences which have a large community impact.

I know that concerns have been raised that Clause 102 may lead the courts to impose the minimum sentence in situations that they regard as unjust, because they cannot find the circumstances to fall within the ambit of “exceptional circumstances”. Concerns have also been raised that what constitutes “exceptional” might be treated as being subjective, leading to inconsistent application.

I can, I hope, reassure the House that courts are well accustomed to determining whether there are exceptional circumstances. There is a body of case law relating to the minimum sentence for certain offences involving firearms which already applies unless there are exceptional circumstances. This provision aligns the minimum sentence provisions with that test. Without wishing to turn Report stage into a seminar, in R v Nancarrow—the reference is 2019, EWCA Crim 470; old habits die hard—the Court of Appeal established a number of relevant principles, including that circumstances are exceptional if the imposition of the minimum sentence would be arbitrary and disproportionate. The court should also take a holistic approach and consider whether the collective impact of all the relevant circumstances makes the case exceptional. Therefore, judicial discretion for the court to consider fully the facts of the case and decide on the appropriate sentence in light of the statutory regime is retained in this measure.

I respectfully disagree with the noble Lord, Lord Marks, that this is an attack on judicial discretion. It is not a case of the Government not trusting judges; indeed, we have minimum sentences. The noble Lord is not suggesting that we should not have any minimum sentences, so the issue between us is not whether a judge has full discretion or no discretion—I am not advocating no discretion; the noble Lord is not advocating full discretion—but the ambit of that judicial discretion. I suggest that that is a matter of policy and therefore properly a matter for Parliament.

Police, Crime, Sentencing and Courts Bill

Lord Ponsonby of Shulbrede Excerpts

Lords Hansard - Part 2 & Lords Hansard - part two & Report stage
Wednesday 15th December 2021 Lords Chamber

[Lord German (LD)]

My Lords, I too have signed this amendment. It amazes me that we have unanimity on the problem—a problem that may be solved in a number of different of ways but something which everyone thinks is a problem and should be solved—yet we are being asked to wait a number of years for that to happen. Talk to any Minister who has an interest in taking forward a new proposal, and the first thing that they will say is, “Ah, there is a problem with how much legislation we can get through in a year”, or whatever the space of time between the Queen’s visits.

Clearly, it is a difficult route for anyone to take through a Bill. I am sure that there would not be a Bill talking about the Friday release problem as a piece of primary legislation. It is bound to fall within another piece of legislation, but it is surprising that the Government support the principles upon which this amendment is created but cannot find the route for it to happen more swiftly. Let us remember the point that the noble Earl, Lord Attlee, just made, that the cost of not doing something here is immense.

If you stand outside a prison gate at a particular time on a particular week, you will often see people lined up at a bus stop with the same plastic bags containing their total belongings, their total life, and with their £76, if they have not already spent some of it on getting themselves some food. That is how they face the life in front of them. My noble friend Lady Hamwee was quite correct that the absolute certainty of getting this right is in the through-the-gate services which the Government must provide. It is one of the sad reflections that the gate is seen as a wall rather than as a place from where opportunities which commenced inside the prison can continue. I always relay to anyone who wonders about this that about 60% of the people who do my local recycling are on day release from prison and go back in the evening. The advantage is that they can earn a bit of money and eventually find their way back to employment more swiftly.

We know the difficulties here and it surprises me that the Government have not yet taken the view of the noble Lord, Lord Hodgson, who has sharpened his pencil and come up with the right answer. The right answer is that, if the Government want to take this forward in a bigger piece of legislation, in the interim you create the regulatory powers for the Minister to be able to give discretionary powers to the prison governor to identify those prisoners who are most at risk, and give them the opportunity to sort the problems out with local government. We are talking about a simple matter here.

As my noble friend Lady Bakewell of Hardington Mandeville said, local authorities have a major problem with housing. I experienced this with a couple of people coming out on a Friday. They went to the local housing office and were told there was nothing available. They wandered round from one local authority to another attempting to find a link between them, and I honestly do not know where they ended up, but it certainly was not in a place where their lives could continue and they could make a future for themselves.

The challenge in paragraphs 139 and 140 of the prisons strategy White Paper we were presented with is to get on with it—that is the Government’s intention. I am sure the intention is not to hold back from it. This is a straightforward, simple resolution of the problem, which meets all the Government’s objectives. I support this amendment, and I hope the Minister can tell me the answer to the question asked by the noble Lord, Lord Hodgson: what is not to like?

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, my first interest in criminal justice came about 20 years ago, before I became a magistrate, when I was a trustee of the Wandsworth Prison visitors’ centre. Like all those centres, it was set up on the recommendation of Judge Stephen Tumim, and we dealt with the needs of the families of prisoners. It was then that I first came across this problem—it is not new—and the fact that it is very much the management of small issues that is of central importance for the prisoners and their families.

We owe a debt of thanks to the noble Lord, Lord Hodgson. He has indeed gone into the detail of this problem and come up with a highly practical way of resolving it—tonight, potentially. This House should take advantage of that opportunity. In one sense, I will be intrigued to hear what reasons the noble and learned Lord the Advocate-General for Scotland might give for not pursuing this, but this really is an opportunity. The noble Lord, Lord Hodgson, has addressed the three original points made in Committee in his new amendment, and I really encourage the noble and learned Lord to take advantage of this opportunity.

[The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)]

My Lords, this amendment seeks to reduce releases on a Friday, or on days before bank holidays, including releases of persons whose release falls on a non-working day, by creating a power for the Minister to establish a pilot scheme via secondary legislation that would grant prison governors the discretion to release earlier in the week, where that would be helpful for the prisoner’s reintegration into society.

I thank all noble Lords who have participated, particularly my noble friend Lord Hodgson of Astley Abbotts and the noble Baroness, Lady Lister, for their constructive and entirely commendable approach to this. As my noble friend put it, rather than simply rehearsing the arguments made at an earlier stage, they have gone away, considered the matter and sought to refine them in answer to the points made by my noble friend Lord Wolfson of Tredegar.

The question posed ultimately by the noble Lord, Lord German, rehearsing the one posed by my noble friend, was: what is not to like? Regrettably, I cannot answer that with “Nothing”, which I suspect was the answer being fished for. I will endeavour to explain why.

The noble Baroness, Lady Lister, highlighted the existence of a discretionary scheme in Scotland, in terms of the Prisoners (Control of Release) (Scotland) Act 2015. We have engaged with the Scottish Government and looked at research carried out by the Scottish Prison Service, and we have seen that the uptake of this discretionary scheme since 2015 is extremely low: only 20 prisoners in that period have been granted early release. I submit that that gives us some indication of the complexities attendant upon the point. It is not as though we have in the neighbouring jurisdiction a solution to this matter which could be taken from the shelf and applied in England and Wales. We plan further engagement with the Scottish Government to look at the matter in more detail, and we will share the results of that engagement with the noble Baroness.

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[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I have also put my name to these amendments, so ably moved by the right reverend Prelate the Bishop of Gloucester, and I support them. I have to confess that, as she was speaking to each amendment, I was mentally going through the processes I go through as a sentencer. She introduced her comments by talking about probation reports. As I have mentioned, I became a magistrate about 14 years ago, when there were no oral reports, and fast-delivery reports were only just being introduced. Most of the time, we saw standard reports. There has been an evolution over the last 14 years. There are oral reports, fast-delivery reports and standard reports. In the youth court we have far more enhanced reports, which are 10 to 20 pages long, and in the domestic abuse courts we will be more informed of the family situation when sentencing somebody convicted of a domestic abuse-related offence.

I do support these amendments. The reports put in front of magistrates’ courts and Crown Courts need to be appropriate, and, of course, they need to include the family circumstances of the person being sentenced. The great dilemma, in any system, is to get enough information in a timely manner but not so much that it delays things. I remember that when oral reports were first introduced in magistrates’ courts, we very much appreciated that, because we had experienced probation officers who would interview the offender on the day and come to the court and tell us the various pros and cons of the sentencing options. We knew those probation officers and trusted them to give us a balanced view and guidance on the appropriateness of certain sentences.

That is a good example I have just given. There are, of course, less good examples where we may not have been made aware of the family responsibilities of the person we were sentencing, and there is an absolutely consistent dilemma, whenever one is sentencing, over whether one has a whole picture.

As I say, I support these amendments. This is all based on the data. It is about having appropriate data at the time and about recognising the domestic situation and whether there are responsibilities. Everyone here today has mentioned the position of children, but a lot of people I sentenced also had responsibilities for older parents or other caring responsibilities, and that needs to be taken account of as well.

While I support these amendments, I think more can be done. Reports need to be focused in the right way, and the probation service needs to build on its links with appropriate local social services, as it does when I sentence domestic abuse-related incidents. Much more needs to be done, and I will support the right reverend Prelate if she decides to press her amendments to a vote.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)]

My Lords, this group of amendments relates to primary carers in the criminal justice system. We debated it at some length during previous stages, and, as I noted in Committee, the proposed new clauses have their origins in previous work by the Joint Committee on Human Rights. Let me just take a moment to echo the tribute paid by the noble Baroness, Lady Hamwee, to those who give evidence to that committee and the other committees of this House. While the Government support the principle behind these amendments and have listened carefully to the arguments in support of them, we are still not persuaded that they are necessary.

I will explain the Government’s reasoning regarding each of these proposed new clauses. Amendment 88 would require the Secretary of State to take reasonable steps to collect data centrally and publish it annually on how many people sentenced have parental responsibility for a child or children under the age of 18 or are pregnant. We have publicly acknowledged the gaps in our current data collection on primary carers in prison and believe that understanding the position in prison is where we should focus our improvement efforts regarding data. This will provide an evidence base to develop policy solutions to offer proper support to primary carers who are imprisoned, and their children.

I am sorry that progress has been so slow, but I am pleased to say that the necessary changes to the basic custody screening tool will be made during the first quarter of the coming year. From that point we will be able to collect data on primary carers in prison and the numbers of their children. An important caveat is that our data collection is necessarily dependent on prisoners declaring the information. Although we do our best to encourage people to provide information, there will always be some people who, for various reasons, do not disclose what the underlying position is. We continue to look at this issue to ensure that our data collection is as good as it can be. I heard the right reverend Prelate say that she would be keen to continue discussions on that point. She knows from previous issues that I am very happy to discuss this with her. I will keep her informed of our progress.

Amendment 88 also refers to collecting data on women who are pregnant when they are sentenced. The Government’s view is that the primary focus should be on those who are pregnant and sentenced to custody. We have already taken steps to acknowledge previous weaknesses in our data collection. We are now collecting and publishing data on the number of pregnant women in prison in the HMPPS annual digest, which contains a weekly average for self-declared pregnancies, and the total number of births to women held in custody over the year, in location categories.

On the closely linked topic of maternity services in prisons, this week I met the noble Baroness, Lady Burt, to discuss the breadth of work already completed and under way to address learning from the appalling “Baby A” case, as per the existing statutory obligations. I am grateful to her for the time that she spent discussing the matter with me. HMPPS has accepted and completed all the PPO recommendations. The PPO’s recommendations for health have either been completed or are in the process of being completed.

This work includes investment by NHS England and NHS Improvement of recurrent funding for an improved maternity service at HMP Bronzefield that will be delivered by Ashford and St Peter’s Hospitals NHS Foundation Trust. All the work that we have completed or are in the process of implementing is set out in a joint action plan that we have submitted to the PPO, and which is available publicly on its website. Nationally, as part of the jointly commissioned women’s estate health and social care review, a perinatal steering group has overseen the development of a pregnancy and post-pregnancy service specification for health and justice commissioners. Publication is anticipated for early next year.

Turning to Amendments 86, 87 and 105, which concern remand and sentencing decisions in cases involving primary carers and pregnant women, I will not repeat the points that I made in Committee, but we consider these amendments unnecessary, since a series of relevant and adequate considerations for courts making such decisions are set out in relevant case law and sentencing guidelines, and, as I dealt with on earlier groups today, ensure that custody is a last resort in all cases.

The case law and the sentencing guidelines, which the courts have to follow, are clear that courts should give full and proper consideration to the fact that someone is either a pregnant woman or a primary carer. However, without wishing to diminish the importance of their consideration, we have to acknowledge that courts have to consider various and often complex circumstances relating to the offence or the offender. Regrettably, there will be cases where the risks posed by the individual or the seriousness of the offending is such that, despite the existence of dependents, custody is deemed necessary.

I listened carefully to the points made by the noble Baroness, Lady Bennett of Manor Castle, and the noble Lord, Lord German, about recall. In the time that I have had to respond specifically to that point, I can tell them that in the three years from June 2018 to June 2021 there was an 18% decrease in the number of women recalled to custody while the comparable decrease for men was 4%. So I acknowledge that there is an issue on recall and I am happy to continue that conversation, but the position has got better.

However, we are clear that delivering public protection and confidence across the system is not just about the better use of custody. As set out in our female offender strategy, we want fewer women serving short sentences in custody and more being managed in the community. As part of that strategy, we have committed to piloting residential women’s centres, which will offer an intensive residential support package in the community for women at risk of short custodial sentences.

I turn to Amendment 85. As I set out in Committee, current legislation already requires the court to obtain a pre-sentence report in all cases unless the court deems it unnecessary on the facts of the case—for example, if the offender had been before the court three weeks earlier and a pre-sentence report was obtained then. This requirement is reflected in the sentencing guidelines, which courts have to follow. When sentencers request pre-sentence reports, guidance introduced in 2019 mandates probation practitioners to request an adjournment to allow time to prepare a comprehensive pre-sentence report in all cases involving primary carers and for those at risk of custody.

I am keen to reassure the right reverend Prelate that a key objective of this Government’s reforms is to improve both the quality and the prevalence of pre-sentence reports in the justice system. We heard first-hand experience from the noble Lord, Lord Ponsonby, about the quality of pre-sentence reports, which can be extremely good. We want to ensure that that quality is consistently good.

[Lord Ponsonby of Shulbrede (Lab)]

I think the point I made is that they are extremely variable.

[Lord Wolfson of Tredegar (Con)]

I am looking at the glass as half full. I acknowledge their variability but we want to improve their standard across the board. It is a little simplistic, if I may respectfully say so, always to assume that a written report is better than an oral report. I know the noble Lord was not making that point but I have heard it elsewhere. He was quite clear from his experience that a good oral report may be better than a written report.

[Lord Ponsonby of Shulbrede (Lab)]

If appropriate.

[Lord Wolfson of Tredegar (Con)]

If appropriate, exactly; it all depends. The sentencers have experience of the nature of the reports that are appropriate in each case.

On that point, we acknowledged in our sentencing White Paper that pre-sentence reports have decreased over the last decade. We specify in the White Paper that, although we do not propose to alter current judicial discretion, we want to build the evidence base around pre-sentence reports. We therefore commenced a pilot scheme in 15 magistrates’ courts in May this year, in collaboration with the judiciary and HMCTS. It strategically targets female offenders, and some other cohorts, for fuller written pre-sentence reports. The process evaluation will be published in autumn next year and will give us the evidence base to drive improvements in pre-sentence reports and make future decisions. We want to preserve a balance between the current legislation and sentencing guidelines and the independence of judicial decision-making. We very much hope and expect that that pilot scheme, which takes into account operational considerations in the courts as well, will enable us to improve the position significantly.

I hope that what I have said—I hope not at too great a length—will persuade the right reverend Prelate and noble Lords that the Government share the concerns underpinning these amendments and, importantly, that existing law and practice, together with the action we are already taking, make these amendments unnecessary. I invite the right reverend Prelate to withdraw the amendment.

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Moved by

[Lord Ponsonby of Shulbrede]

88A: Clause 133, page 126, line 35, at end insert—
“(8) After section 102, insert—“102A Centralised monitoring of court decisions to impose youth custodial remand (1) Within six months from the day on which the Police, Crime, Sentencing and Courts Act 2021 is passed, the Secretary of State must nominate a body to collect, analyse and publish data on the decision-making process of courts when sentencing a child to custodial remand.(2) “Decision making process” refers to the consideration and application of the required Conditions for the custodial remand of children by the court, as set out in the Legal Aid, Sentencing and Punishment of Offenders Act 2012.(3) A report on the findings must be laid before Parliament and published on an annual basis.(4) The first report must be published and laid before Parliament no later than 18 months from the day on which the Police, Crime, Sentencing and Courts Act 2021 is passed.””

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we have been talking about data, and this is another example of collecting data, because the fear is that different parts of the country will remand children in different ways. The bail decisions for youth are a complex set of decisions; they are different as for adults, and it is absolutely and invariably the most difficult decision that any judge or magistrate will make. I can see that it would be easy to have different standards in different parts of the country, and that is the main purpose of this amendment. What I have just said is my subjective view but, of course, unless the data is collated in some way, it is only my subjective view. This is about complexity and a lack of consistency, and it is information on which the Ministry of Justice should really have a view on.

Amendment 89 seeks to raise the age of criminal responsibility from 10 to 12. The current Labour Party policy, which I agree with, is that it should remain at 10. I have been a youth magistrate for 12 years, and I have never seen a 10 or 11 year-old in court. It does happen, of course, but from what I understand is that it happens only in the very most serious cases; only in very extreme cases would anyone that young ever get to court.

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[Baroness Chakrabarti (Lab)]

My Lords,

“No child should suffer such appalling abuse, especially from those who should love and care for them most.”


Who said that? It is not a Christmas quiz. It was the Minister repeating a sentence what feels like a long time ago, but it was earlier this evening in proceedings on this Bill in your Lordships’ House. What if the same child victim of cruelty or neglect survives and grows to act out as a damaged little person as a result of that neglect or abuse?

I am very disappointed to hear about my own party’s position on the age of criminal responsibility, not least because I was reading David Lammy’s comments in the Guardian just a couple of years ago in relation to concern that our age of criminal responsibility, at 10, is too young. I think that we as a society are failing some of our most vulnerable children, including victims of neglect and abuse, and we should not be criminalising them. Given what we know about child development, 10 is way too young. It makes us as a jurisdiction an outlier in the civilised world and that is not something to be proud of.

Perhaps understandably, much of the debate in Committee focused on some of the most notorious cases, including that of Thompson and Venables, but such horrific and notorious cases are few and far between. More often, we are talking about offences such as criminal damage, and it is often looked-after children who are criminalised for offences of that nature. They have already been let down in their lives by their natural parents and/or their adopted parents and are looked after by the state. They then get involved in something that is treated as criminal damage in a care environment and for which neither noble Lords’ children and grandchildren nor mine would ever be criminalised.

[Lord Ponsonby of Shulbrede (Lab)]

I have dealt with that exact point in my time as a youth court magistrate. It is not just children aged 10 or 11. In the past few years—let us say the past five years—I have never seen any child brought to court for criminal damage in their care home. They used to be brought to court because it was an insurance-related issue and a conviction was needed to get the insurance money, but that has been resolved as an issue. In my experience, care homes do not charge their children for criminal damage.

[Baroness Chakrabarti (Lab)]

I am grateful to my noble friend; obviously I do not have his personal experience as a magistrate but just today I looked at published statistics from 2018, which showed that a small number of children were criminalised for criminal damage.

Whether children end up in court or not, if they have criminal responsibility, they can be criminalised. They may never get to court—they may accept an out-of-court disposal—but they will be criminalised and will potentially have a conviction that follows them around for a very long time. This is amoral; it is not the way to treat a vulnerable little person who has probably been neglected and/or abused. They are not ready for criminal responsibility—they are not responsible. All the scientific evidence suggests that their brains are not developed enough at the age of 10.

We weep hot tears for these children when we see them as victims of abuse and neglect, but we do not do so when some of them manage to survive but act out in ways that children will. Some children will never be criminalised for minor theft or criminal damage because they have the protection of their privilege. Other children will sometimes be criminalised, which is wrong in principle and says something very embarrassing about this jurisdiction—even compared with the neighbouring jurisdiction north of the border, as my noble friend pointed out. I do not want to repeat what I said about this in Committee, but I thank and pay tribute to the noble and learned Baroness, Lady Butler-Sloss, and the noble Lord, Lord Dholakia, who have campaigned on this issue for many years to stop us being an outlier in the world.

I note that next year my noble friend Lord Adonis will bring forward a Private Member’s Bill to lower the voting age from 18 to 16—something I will support but I suspect the Government will resist. The Government will insist on 18 for voting purposes and the age of majority, and perhaps take the view that children and young people are not mature enough to vote until they are 18, but heap criminal responsibility on them at the age of 10. That is a mismatch of eight years. Of course. children and young people—indeed, all people—develop slightly differently. Personally, in an ideal world, I would support 16 as a decent compromise. However, that is not the point.

The amendment in the name of the noble and learned Baroness, Lady Butler-Sloss, and the noble Lord, Lord Dholakia, to which I have added my name, settles on just 12. I am afraid that the fact that neither the Government nor my own party can support that, despite report after report from the UN on the UN Convention on the Rights of the Child, is an embarrassment. We are choosing some children over others. These difficult issues about children and criminality are always about other people’s children. However, the difference between believing in and promoting human rights and not doing so is whether you care about other people’s children, and not just at Christmas—and not determining, as a noble and learned Lord said earlier, who is naughty or nice but caring for everyone’s children and all children.

With that, I will spare your Lordships any more of my thoughts on this issue—I feel very strongly about it. I wish your Lordships and your children and grandchildren a very good Christmas when it comes.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

I am happy to respond in writing a little more fully, but I can say—with the caveat that I absolutely share concerns about ethnicity proportions in the youth justice system, and indeed through the criminal justice system generally—that the number of black, Asian and minority ethnic children entering the youth justice system for the first time fell in the decade between 2009 and 2019 by 76%. So there is progress but there is still work to be done. I will look at the Official Report and write with anything further.

[Lord Ponsonby of Shulbrede (Lab)]

I beg leave to withdraw the amendment.

Amendment 88A withdrawn.

Police, Crime, Sentencing and Courts Bill

Lord Ponsonby of Shulbrede Excerpts

Lords Hansard - Part 1 & Report stage
Wednesday 8th December 2021 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I had a problem with this amendment myself but, not being a lawyer, I thought I would leave it to those who are. And, having heard the lawyerly wisdom pouring from your Lordships’ Benches on this amendment, I am astonished that there has not been an attempt to block the amendment. It is the only power we have to stop this Government overreaching. I am utterly disappointed and I deeply regret that I did not get more involved. I just hope the Minister actually listens to these very eminent views in your Lordships’ House and understands that this is not a smart move. I understand the public optics are very attractive, but, really, it just sounds foolish.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I stand on these Benches to support, or at least not to oppose, the Government. But I have to say that I am reluctant to go ahead and make this speech, based on the contributions we have just heard. The amendment inserts provisions into the Sentencing Code that require a court to impose a life sentence on an offender convicted of unlawful and dangerous act manslaughter against an emergency worker. As we know, this is known as Harper’s law, and it has been campaigned for by PC Andrew Harper’s widow after he was killed in the line of duty in 2019.

I listened very carefully to the Minister, and he made much play of the word “exceptional”. My noble friend Lord Carlile made the point about the interpretation of the word being fairly narrow in the Court of Appeal. I have to say, in the more “wild west” approach of magistrates’ courts, we interpret “exceptional” quite liberally at times. Having said that, I acknowledge that the Minister did make the point that this excludes those convicted of gross negligence manslaughter and includes only those convicted of unlawful act manslaughter, which I thought was an important point.

As I say, we on this side will support the Government in their amendments. However, I do recognise that some very serious points have been raised in this debate.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful to all those who have contributed and I can start by reassuring the noble Baroness, Lady Jones, that I always listen. We may not always agree, but I certainly always listen. I can also reassure the noble Baroness, Lady Fox of Buckley, that this is not law made by press release, nor is it law in the guise of a political policy statement. We have considered this issue very carefully. Indeed, it is because we have taken time to get the policy right as we see it that the amendment is here now and not earlier—to deal with one of the points made by my noble friend Lord Hailsham.

We believe this is the right approach to these circumstances. Of course, I carefully read the judgments in the Harper case, in particular the Court of Appeal judgment. I hope it goes without saying that, standing at this Dispatch Box, I have great respect for that court, as indeed I do for all courts. But that does not mean that Parliament is unable to or should be cautious to legislate in the area of sentencing, or should be prevented or inhibited from doing so. We are entitled to do so, and in this case, we ought to.

I will pick up on a couple of the points made by contributors. First, on exceptional circumstances, I seem to be being criticised both for refusing to define “exceptional circumstances” and for putting it too broadly. I deliberately did not gloss or parse the phrase. “Exceptional circumstances” is a phrase used in other legislation, for example the Sentencing Act 2020 and the Firearms Act 1968. We believe it is best to leave it to the courts to interpret and apply that phrase, and not to parse or gloss it from the Dispatch Box.

The noble Lord, Lord Marks, picked up on the word “totally”, which appears, as he said, in a press release form the Ministry of Justice. That shows the importance of leaving it to the words in the statute and not looking at anything else when the courts interpret those words.

An example was given of an off-duty police officer intervening in a fight in a pub. It is right to say that there is no requirement for the offender to know that the victim is an emergency worker acting as such. We stand by that. That is already the approach in other legislation passed by Parliament—for example, the Assaults on Emergency Workers Act 2018. There is no requirement in that Act, either, for the defendant to know that the victim is an emergency worker, although in most cases that will be apparent to the defendant.

For the unlawful act of manslaughter offence to apply in this case, the defendant must have been committing a criminal offence. If the actions of someone are such that they not only commit a criminal offence, but their actions further result in the death of an emergency worker who may be attempting to relieve that very situation, the Government believe the behaviour warrants a life sentence.

I come now to what we mean by a life sentence. I have already dealt with the “exceptional circumstances” point, so I turn to the point on life sentences raised first by my noble friend Lord Hailsham—regarding tariffs—and then more directly by the noble Lord, Lord Pannick. When a person is sentenced to a life term and not a whole life term, the judge will set out what the tariff is. Then it is a matter for the Parole Board to determine release, and the person will be under a life licence thereafter.

These provisions do nothing to circumscribe the ability of the trial judge to impose whatever tariff they think is appropriate in the circumstances. If the trial judge thinks a lower tariff is appropriate—the word “modest” was used by my noble friend—no doubt that is what they will impose. As in the case of murder, we believe the offence warrants a life sentence with a tariff and the consequences therewith.

I hear the point made by the noble Lord, Lord Pannick, that a life sentence does not normally mean that the person stays in prison for their whole life. That is the case across a swathe of criminal law, and maybe on a future occasion the House can decide whether that is an appropriate way to continue. Given that that is our sentencing structure—which I think is correct—it is also appropriate in this case.

I think the debate comes down to whether one accepts that the example given by my noble friend Lord Hailsham of the off-duty officer in civilian clothes who intervenes in a fight—

--- Later in debate ---

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I have another suggestion for the noble Lord, as we can all see that he is in a difficult situation. The Government have put forward their protest amendments, which are coming at the latter stage of Report. There is nothing to stop the Government from withdrawing this amendment now and bringing it back at the latter stage of Report. It will give everyone time to consider their position and the Government would not lose time. They could do it via Third Reading, or they could do it the way I am suggesting now. I hope that the Minister will consider that suggestion constructively.

[Lord Marks of Henley-on-Thames (LD)]

I am sorry to make a second intervention before the Minister has had a chance to answer the first. The point I wanted to make to the House and for the Minister’s consideration is really a very similar one. It seems to me that the suggestion of the noble Lord, Lord West, is a viable one and the suggestion of the noble Lord, Lord Ponsonby, is also a viable one. The noble Lord mentioned listening. We all know that he does listen and that he is prepared to listen. That listening generally involves talking and having meetings about amendments and proposals. This is a government amendment, and the Minister is quite right to point out that it was publicised on 1 December. That was one week ago for an important change in the law. The suggestion of the noble Lord, Lord Ponsonby, allows this to be considered and discussed with noble Lords about the House during the rest of Report, and it could come back in January, because we have this very long period due to the Christmas break. May I suggest that that is the fair and sensible way to proceed, rather than insisting on putting the Question on it tonight, landing the House with an unexpected vote if there were to be a vote, and failing to discuss it with noble Lords around the House in the meantime, which could quite easily be done?

Police, Crime, Sentencing and Courts Bill

Lord Ponsonby of Shulbrede Excerpts

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

Moved by

[Lord Ponsonby of Shulbrede]

212: After Clause 124, insert the following new Clause—
“Short custodial sentences
(1) The Sentencing Code is amended as follows.(2) In section 230 (threshold for imposing discretionary custodial sentence), after subsection (2) insert—“(2A) If the court finds that the offence is so serious that neither a fine alone or a community sentence can be justified for the offence, it must state its reasons for being satisfied that the offence is so serious (having regard to the considerations in subsection (2B)), and, in particular, why a community order with appropriate requirements could not be justified. (2B) In this determination, the court must take account of the following principles—(a) passing the custody threshold does not mean that a custodial sentence should be deemed inevitable; (b) custody should not be imposed where a community order could provide sufficient restriction on an offender’s liberty (by way of punishment) while addressing the rehabilitation of the offender to prevent future crime; (c) sentences should not necessarily escalate from one community order range to the next at each sentencing occasion;(d) the decision as to the appropriate range of community order should be based upon the seriousness of the new offence(s);(e) section 65 (a relevant previous conviction to be treated as an aggravating factor) should not be interpreted so as to meet the custody threshold in respect of the sentence for one or more offences that would not themselves justify custody; and(f) where the offender being sentenced is a primary carer for a child, imprisonment should not be imposed where there would be an impact on dependants which would make a custodial sentence disproportionate to achieving the aims of sentencing.”(3) After section 230, insert—“230A Impact of custodial sentence on child or unborn child(1) This section applies where a court is considering imposing a custodial sentence on—(a) a primary carer for a child, or(b) a pregnant woman.(2) The sentencing court must—(a) consider the impact of a custodial sentence on the child or unborn child, and(b) presume (subject to victim impact and any other sentencing considerations) that a non-custodial sentence is in the best interests of the child or unborn child.(3) In this section—(a) “child” means a person under the age of 18, and(b) “primary carer” means a person who has primary or substantial care responsibilities for a child.””

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the purpose of Amendment 212 is to encourage sentencers to used community-based sentences rather than short prison sentences. It proposes strengthening the custody threshold as a principled starting point for reducing the current use of custody for lower-level sentences.

I favour this amendment over the potentially bolder Amendment 213 in the name of my noble friends, which seeks a presumption against a ban on short prison sentences. The danger of Amendment 213 is that if it restricts access to short prison sentences, in the current climate it could result in up-tariffing, which would not be a desirable result for the length of prison sentences.

As the law is currently drafted, imprisonment is reserved for serious offences. It is already established in statutory terms that an imprisonable sentence should be given only if there is no alternative. However, despite that, in practice people routinely continue to be imprisoned for low-level lawbreaking, fuelling an expensive merry-go-round of multiple short prison sentences.

The amendment proposed builds on principles already accepted in the sentencing guidelines. It enshrines these into legislation to better clarify the current statutory custodial threshold. Specifically, it intends to better ensure that custodial sentences are appropriately reserved for serious offences by better clarifying the assessments that are required to be made. The impact of imprisonment on dependent children should be considered in the sentencing of primary carers. This would limit the relevance of previous convictions in determining custodial sentences.

Persistence is a key driver of the current use of short-term custody and needs to be tackled head on. This amendment emphasises that short periods in custody should not be seen as an inevitable response to a person with a history of relatively minor offending.

The intention of this amendment is to shape the approach of judges and magistrates when considering a custodial sentence in a substantial proportion of cases which currently result in short prison sentences. However, it is important to emphasise that nothing in the proposed provisions would prevent a court from imposing custodial sentences of any length, including short custodial sentences.

In conclusion, I sit as a magistrate in central London. I put short custodial sentences in place, the vast majority of which are for people who have previously tried community orders and have either reoffended or have breached them on multiple occasions. It is very rare for a magistrate to give a short custodial sentence to somebody who has not previously been on a community order. Nevertheless, I think there is a genuine issue here—primarily the strength of the community orders which are available to courts. When the Minister responds to this debate, perhaps he will say something about the strengths and current revamping of the probation service. When sentencing judges or magistrates make short custodial sentences, the confidence that they have in community orders is an important consideration. I beg to move.

[Lord Dubs (Lab)]

My Lords, I shall speak to Amendment 213. My noble friend Lord Ponsonby was somewhat critical of it. I agree with what he is seeking to achieve in Amendment 212. Amendment 213 goes a little further and is a little more precise. If I may say so, I think it is a better amendment.

To clarify, this is not a blanket ban on short sentences; it is a presumption against short sentences. Previous Governments have supported this idea. The evidence is that short sentences do not lessen offending. They are mainly concerned with non-violent offences. They do not provide meaningful rehabilitation. They can have a disruptive effect on family life and relationships.

The statistics are quite awesome. According to data from the Ministry of Justice, between January 2020 and March 2021, 20,000 people went to prison to serve a sentence of six months or less—44% of the prison population. This was even more so for women during the same period. Prior to the pandemic, the figures were even starker.

As I have said, the majority of people serving sentences of six months or less are in prison for non-violent offences, such a theft and drug offences. These offences are often linked to underlying issues such as poverty, addiction, homelessness and poor mental health. We know that these people really should not be in prison at all. Prison does not help them. We also know that short sentences have proven to be less effective than community sentences in reducing offending. Community sentences include interventions such as drug, alcohol and mental health treatment. They do more to address the root causes of offending.

Short sentences disrupt family life and ties; they damage housing, employment and treatment programmes. They do not provide any meaningful rehabilitation. These sentences contribute to volatility shown in prison.

Short prison sentences have a harmful effect on women in particular, hampering relationships with their families and children. Over half of women in prison report being victims of domestic violence, which often contributes to the offence that led to the prison sentence. I have had some help from a great organisation called Revolving Doors, and I have a quotation from one of its members:

“Although I was in prison for a short time I felt traumatised by the whole experience. In fact, sending me to prison was just a waste of time and money. I was released with no explanation and no support. I found myself back in the violent relationship which exacerbated my addiction which led to further arrests and trauma.”


Another argument for a presumption against short sentences is the cost. Of course, that should not be the main thing; the main thing should be protecting society, penalising people who should be penalised and helping to reduce reoffending. However, cost does come into it. The annual cost per prison place in 2020 was £44,640, compared with £4,305 for a community order. It is quite a dramatic difference.

The public, according to surveys, understand why there should be a presumption against short prison sentences. Probably, there are people who say, “Send them in and keep them in longer—six months is too short”, but the public are quite sensible and understand what is going on. I can only refer to previous Ministers, David Gauke and Rory Stewart, who both said it was necessary to introduce the presumption against short sentences. I think we can manage to do that.

The amendment of my noble friend Lord Ponsonby, as I said, goes in the right direction, but it is not quite strong enough. This is such a simple measure—so simple that it is hardly worth spending time debating it. I am sure the Minister will accept it.

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[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank the Minister for summing up his response to the two amendments in this group. I feel I have been around this track a number of times over the years and we hear the same arguments again and again. The central point is surely that made by the noble Lord, Lord Beith: the current state of affairs is not satisfactory. We have the merry-go-round of short sentences so that sentencers, including myself, feel that we have to make short sentences because we have repeat breaches of community orders and some sentencers do not have confidence in them. So the merry-go-round carries on, with all the disruptive and damaging consequences which we have heard about from many noble Lords in this debate.

I am not saying that my amendment is significantly better than that of my noble friend Lord Dubs. I am saying, however, that there needs to be a holistic response of shorter sentences and better community sentences which people have confidence in, and which the offenders stick to and benefit from.

I will just come to the question from the noble and learned Lord, Lord Hope, about giving reasons. Magistrates’ courts are not a court of record. However, we give reasons and write them down—particularly if we think that we are going to be appealed. So, yes, we do give reasons. I beg leave to withdraw my amendment.

Amendment 212 withdrawn.

Police, Crime, Sentencing and Courts Bill

Lord Ponsonby of Shulbrede Excerpts

Lords Hansard - Part 2 & Committee stage
Monday 15th November 2021 Lords Chamber

[Baroness Newlove (Con)]

My Lords, I am pleased to add my name to Amendment 214A, along with the noble Baroness, Lady Brinton, and the noble Lord, Lord Ponsonby, because we care about protecting vulnerable victims of crime from harm and repeat victimisation.

Home detention curfew, or HDC, is a valuable scheme allowing certain offenders to be released early from their custodial sentence if they have a suitable address to go to. We all recognise the value that this brings in providing a managed way of releasing offenders back into the community. However, there are, rightly, a number of exclusions to eligibility for the scheme based upon the offender’s history of compliance as well as the offences for which they have been convicted. For example, sex offenders required to register, those sentenced for breach of curfew and those serving sentences for cruelty to children or racially aggravated offences are ineligible for HDC. These are just some of the criteria that currently can preclude someone. I believe, as do some colleagues around the Chamber with whom I speak, that the safety of the victim and the risk presented to them by the offender are of the utmost importance when considering suitability for release under HDC.

Amendment 214A seeks to add two new criteria to the framework governing home detention curfews: first, that offenders who have previously breached protective orders such as restraining orders are deemed ineligible; secondly, that those with a history of offences related to stalking, harassment, coercive control and domestic abuse are also deemed ineligible. Victims of these crimes are at high risk of repeat victimisation and are in desperate need of respite from their abuse to help them recover. Under HDC, that respite can be as little as 28 days, allowing no time to address the behaviours that characterise these offences.

Fifty-five per cent of stalking perpetrators go on to reoffend because of the fixated and obsessive nature that defines stalking, as the noble Baroness, Lady Brinton, has just said. Therefore, granting HDC in stalking cases is highly inappropriate and of grave concern, as these offenders regularly breach orders and bail conditions. Home detention curfew for these offenders poses a significant risk, catching victims as they let down their guard. To see an offender released so quickly can be highly distressing, retraumatising and risky; and it impacts trust and confidence in our justice system.

HDC can allow offenders to leave prison so quickly that the victim is entirely unaware. I am aware of multiple cases where a victim has been harassed by an offender following release on HDC, including the victim of a brutal assault, whose father told me what happened: “My daughter was convinced she saw the perpetrator within yards of her new flat. She had to walk around him on the pavement. I assured her that this couldn’t be possible, even with only serving half his sentence. Nevertheless, I checked with the prosecuting officer. He knew nothing of any early release, nor had the police been consulted. In fact, we discovered to our horror that my daughter’s assailant had been released barely three months into his sentence.”

This woman saw the man who assaulted her just yards from her new address—an address she moved to for safety, which was secret for a reason. Her father told me of the enormous distress and anxiety this caused as she relived her assault and felt constantly in fear. In this instance, she had signed up for the victim contact scheme, but a HDC decision had been made before she had been allocated a victim liaison officer contact. As such, the decision was made without any opportunity to input licence conditions and set an exclusion zone for her offender, or for her to contribute in any way by raising highly relevant issues. The relevant issues included the fact that the offender had been given a 10-year restraining order—an unusual intervention signalling the judge’s belief that he posed an ongoing risk. Relevant issues such as that he had previously contacted the victim on bail, showing that he had a history of not complying with orders, should have raised red flags and, under this amendment, would have precluded him from HDC.

The use of home detention curfews in these contexts presents an ongoing problem. If the nature of the offence relates to ongoing harm or risk to a particular individual, as detailed in this amendment, HDC should not be considered a suitable intervention. Those are the words of a father who is so worried for his daughter.

I know it is drawing late, but I would like to thank the London Victims’ Commissioner, Claire Waxman, and her office for bringing these concerning cases to my attention. We need to protect our vulnerable victims of crime.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, my name is on this amendment as well. I have the same briefing as the noble Baronesses, Lady Brinton and Lady Newlove, so I do not have anything additional to say, other than that obsessional behaviour is a problem that one sees throughout the court system. While of course I support home detention curfews, it needs to be recognised that obsessional, fixated behaviour is a source of very serious risk—mainly to women, but not exclusively to women. I have seen, relatively recently, obsessional people in breach of a restraining order, a non-molestation order, bail conditions and licence conditions all at the same time. So I support the amendment in my name.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful to the noble Baroness, Lady Brinton, twice over. First, I thank her for tabling this amendment, which has enabled us to have this short but interesting debate. Secondly, I have to say mea culpa, because I failed to thank her for her contribution in the last group. I should have done so and I apologise for that. I hope that she will be able to hear what I am saying now, via the screen.

The home detention curfew—HDC—scheme has operated since 1999. It provides a managed transition from custody to the community for lower-risk offenders who serve sentences of less than four years. They may be released a maximum of four and a half months earlier than the date on which they must be released in any event, but on average they are released on HDC within three months of their automatic release date.

Offenders who are released under the HDC scheme are released under strict licence conditions. An electronically monitored curfew of at least nine hours a day is mandatory. Location monitoring may be added in cases where practitioners advise that it is required. Importantly, research suggests that offenders released early on HDC are no more likely to commit further offences than if they were released at their automatic release date. Compliance with the curfew conditions is closely monitored and breaches are dealt with robustly, which can lead to a swift recall to prison where necessary.

As my noble friend Lady Newlove pointed out, certain offenders are excluded in law from HDC. They include registered sex offenders, terrorists and those imprisoned for specified violent offences. But, as I have said, most offenders serving sentences of less than four years are eligible for the scheme. I underline the word “eligible”. The fact that a particular offender is, in principle, eligible, does not mean that that offender is suitable for release under the scheme. As the noble Lord, Lord Ponsonby of Shulbrede, has just said, offenders can, for example, exhibit obsessional behaviour. No offender can be approved for release on HDC without a robust risk-management plan in place. Where necessary, the governor can set additional licence conditions that can include exclusion zones or location monitoring. If the result of the assessment is that the offender cannot be safely managed at the proposed curfew address, HDC will simply not be granted.

We recognise that the release of offenders with a history of stalking, harassment, coercive control or domestic abuse can cause additional distress. We do not believe that adding those offences to the list of offences excluded by law and putting a blanket ban in place would be proportionate, or an effective means of safeguarding victims while maximising the benefits of the scheme. But we are currently reviewing the HDC policy framework to ensure that all the appropriate safeguards are in place to protect victims and the public and that unsuitable offenders are not released on HDC. With these reassurances and for these reasons, I urge the noble Baroness to withdraw this amendment.

--- Later in debate ---

[Lord Paddick (LD)]

My Lords, I thank the noble Baroness, Lady Newlove, for so ably and comprehensively introducing her amendment. We return to an issue that we debated during the Domestic Abuse Bill, making misogyny a hate crime. From the Front Bench, we support Amendment 219 and oppose the alternative Amendment 219A.

When we debated the Domestic Abuse Bill, I talked about the appalling kidnap and murder of Sarah Everard by a serving police officer, and, as the noble Baroness, Lady Newlove, has said, many more women have died as a result of male violence since then. As the chair of the Police Federation of England and Wales said a few weeks ago, there is a problem with sexism and misogyny in the police service and in society as a whole. Urgent action is needed. Some changes will take a long time, such as changes to social attitudes and police culture, but some changes can happen now. We have an opportunity with this amendment to make one of those changes now.

I did not support the amendment to the Domestic Abuse Bill because I did not believe that that amendment made misogyny a hate crime. This amendment does. In the Domestic Abuse Bill debate, I suggested, as Amendment 219A does, that we should wait for the Law Commission report on hate crime laws. As the helpful briefing from the office of Stella Creasy MP says:

“Since 2010, more than half of Law Commission reviews have not been implemented at all, including the last review of hate crime legislation in 2014.”


I agree with the briefing’s assertion that this is an area where delay has tangible consequences. The evidence that there is a problem is overwhelming. In the wake of the tragic and horrific murders of Sarah Everard and Sabina Nessa, there is an opportunity to strike while the iron is hot, while public opinion is behind us, and where the issue is high in public consciousness. We need to seize that opportunity with Amendment 219.

I did not support the amendment to the Domestic Abuse Bill because I believed that it was the wrong Bill, where one third of domestic abuse victims are male. I believed that it was the wrong Bill because domestic abuse is one of the worst possible crimes, because if there is only one place where someone can feel safe, it should be in their own home—that domestic abuse could not and should be treated as any more serious than it already is.

I also said:

“If noble Lords or Members of the other place do not think we should wait for the Law Commission’s report, there is an imminent legislative opportunity to make sure that hatred of women is treated in every way as a hate crime. We could work cross-party to amend the Police, Crime, Sentencing and Courts Bill, which is being debated in the Commons, to make misogyny a hate crime in every sense of the term. Even if the noble Baroness is not convinced by the Government’s concession, we do not need to rush this amendment through now when the ideal legislative opportunity is at our fingertips.”


The ideal legislative opportunity is at our fingertips—it is here and now, and we should do it.

I have to say that I found the arguments in the briefing that noble Lords have been provided with less convincing on the issue of sex and gender. I refer again to what I said on the Domestic Abuse Bill:

“If the Government only require police forces to record crimes where the victim perceives them to have been motivated by hostility based on the victim’s sex … it does not go far enough. Current hate crime offences are recorded when anyone perceives the offence to have been motivated by hatred, not just the victim. The amendment includes sex and gender, and this is important. If an offender believes the victim is a woman, and anybody perceives that the offence was motivated by hatred of women, it should be recorded as a crime motivated by hatred of women. It makes no difference … whether the victim is a transgender woman.”


There may of course be circumstances where an attack on a transgender woman might be more appropriately recorded as a transphobic hate crime, but:

“Where the victim or a witness believes that they were attacked because they were a woman because they perceive the offender believed the victim was a woman, it should be recorded as such. The use of the term “sex” on its own may exclude some offences”.—[Official Report, 17/3/21; col. 363-64.]


It has been argued that, legally, such offences would not be excluded, but we need to consider the practical implications of excluding gender, as Amendment 219A seeks to do.

There are some who believe that trans women are not women but men. Some of those people are very strident in asserting that view. I want to avoid that debate if possible, but the fact is that people are saying this, and that view may influence victims, witnesses and police officers. Some people may not accurately report crimes motivated by misogyny if they believe that this does not apply to trans women. If we are to protect women and record all crimes motivated by misogyny, gender must be included. A proposal such as Amendment 219A, which makes life more dangerous for some women, makes life more dangerous for all women. From the Front Bench, we support Amendment 219 and oppose Amendment 219A.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the Labour Party has been at the forefront of calls to make misogyny a hate crime. Former Nottingham police and crime commissioner Paddy Tipping ensured that it was recorded as a hate crime there, and we have heard from my noble friend Lady Warwick about his work with Chief Constable Sue Fish in that regard. During the passage of the Domestic Abuse Act, we secured the piloting of the recording of misogyny as a hate crime among crimes of violence against the person, including stalking, harassment and sexual offences. Police forces recording misogyny as a hate crime is an important step forward, but we want to go further by including sex and gender in the list of protected characteristics in hate crime laws for the first time.

I shall speak only very briefly because of the hour, but I want to conclude by saying that I thought that my noble friend Lady Chakrabarti encapsulated the decision before us. We in the Labour Party support Amendment 219 and oppose Amendment 219A. As my noble friend said, first of all, this relates to where an offence has already taken place. Secondly, it is already the case that race and religion are aggravating factors, and they have been for many years. We believe that misogyny should be added as an aggravating factor when sentencing.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I thank my noble friends Lady Newlove and Lady Noakes for tabling their amendments. Both have highlighted the importance of tackling violence against women and girls, as have other noble Lords. We rightly share this priority.

These amendments provide us with an opportunity to discuss the important issue of hate crime, and also to pay tribute to the work of the Law Commission. It performs an important service, considering complex matters of law and making recommendations for change and simplification. This very valuable function helps to bring coherence to complicated and technical areas of law.

The Government share the opinion that all hate crimes are a great injustice and should be dealt with by the full force of the law. I know that noble Lords are aware of the breadth of activity to combat the scourge of hate crime, but in the interests of the hour—I do not think I have ever started my first group of amendments at 10 past 12 at night, so this is a first—I shall consider the amendments before the Committee.

As I have stated in the House before, in 2018, as part of the updating of the Government’s hate crime action plan, we asked the Law Commission to undertake a review of current hate crime legislation. This specifically included concluding a review as to whether other protected characteristics, such as sex, gender and age, should be included. The review’s terms of reference were to review

“the existing range of protected characteristics, identifying gaps in the scope of the protection currently offered and making recommendations to promote a consistent approach.”

As noble Lords have said, the Law Commission’s final report is now imminent. It may be published as early as this month, and that of course is a matter for the Law Commission, which is fully independent of the Government. Noble Lords accepted this during the passage of the then Domestic Abuse Bill, and I think we should see it through in the way we agreed.

However, I do not think that we should commit to giving effect to all the Law Commission’s recommendations before anyone—including noble Lords—has even seen and studied them. It would be inappropriate for any Government to sign what is effectively a blank cheque.

In particular, I know many people hope that the Law Commission will recommend—if I can use the popular parlance—that misogyny should be made a hate crime. To those people, and indeed to any noble Lord, I would say, “Wait and see.” We do not know what it will recommend, and nor should we at this stage. As an independent body which considers and weighs up the evidence, the Law Commission will come to its own conclusions. We will only know what the commission’s advice is when the final report is published.

As the noble Lord, Lord Hunt of Kings Heath, pointed out, where the Law Commission suggested it was minded to consider adding sex and gender to hate crime legislation, it did so only in a consultation. But the purpose of a consultation is precisely to consult. The Law Commission will also want to consider what consultation responses have said and to shape its conclusions accordingly. Whatever the commission’s inclination might have been in 2020, we cannot assume the commission’s final position until it has been published.

It would be premature to accept Amendment 219 and negate the whole purpose of asking this distinguished, independent organisation to give full and proper consideration to the whole construct, purpose and design of hate crime legislation. What is the point of the Law Commission in the first place? I know that people have been critical of it, but I think it is a very useful tool to deal with certain complex issues.

It would also probably be premature at this stage to accept Amendment 219A. As I have said and my noble friend stated, we cannot pre-empt what the Law Commission will recommend. What I think we can say is that the law is complex and contentious, and that has been reflected in our debate tonight. It seems to me that there is every possibility that the Law Commission will make recommendations that will require primary legislation to implement and I do not think it would be appropriate to make what could be quite significant changes to our statute book through secondary legislation. I dare say that, were such a proposal ever to emanate from the Government, I would expect noble Lords to be critical.

Police, Crime, Sentencing and Courts Bill

Lord Ponsonby of Shulbrede Excerpts

Lords Hansard - part one & Committee stage
Wednesday 10th November 2021 Lords Chamber

[Lord Paddick (LD)]

My Lords, the noble Lord, Lord Brooke of Alverthorpe, has relayed to the Committee clearly a very distressing case of mistaken identity and anti-social behaviour generally in that street, apparently to do with drug dealing. If the perpetrators of this terrible crime were found, I am not sure that they would be given a caution, and I thought this part of the Bill was about police cautions—but I accept the general point that victims need to be protected. Although a caution would not be applicable in this case of the break-in at the home and the damage to the car, there might be one in respect of the general anti-social behaviour in the street. It is absolutely essential that the needs of victims are taken into account by the police, including for the financial losses that victims have suffered.

As I said on a previous group, out-of-court settlements have a high victim approval rating already. These amendments, in so far as they apply to police cautions, would ensure that they remain high, and to that extent we support them.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I agree with the points that the noble Lord, Lord Paddick, just made. I also think that Mr McAra should be very grateful to my noble friend Lord Brooke for raising the points about the lack of a formal record of the cost of the incidents. I agree with the noble Lord, Lord Paddick, that it seems very unlikely that anyone would get a caution for this sort of offence. Even if it got to court, there would be an obligation on the sentencing court to consider compensation, because one has to consider this whenever one sentences an individual. Nevertheless, my noble friend has raised an interesting question and I look forward to the Minister’s reply.

[Lord Carlile of Berriew (CB)]

I hope I can be forgiven for intervening slightly out of order. I have been thinking as I listen to this debate about the very troubling case which the noble Lord, Lord Brooke of Alverthorpe, raised, but I am not sure that what he is looking for is germane to this clause. However, there is an issue of general principle about unrecovered, uninsured losses arising from a serious crime of violence which does not cause considerable personal injury.

If there is an injury that would attract damages of £1,000 or more, some ancillary costs are payable under the criminal injuries compensation scheme. This raises in my mind that perhaps the Government should look at something like the Pool Re reinsurance scheme, which applies to claims which are uninsured as a result of terrorism events. The underinsured or uninsured person can go to this entity, which has been set up jointly by the public and private sectors, and recover the cost of damages for what has occurred outside the insurance scheme. I suggest to the Minister, who is an extremely experienced lawyer, that perhaps the Government should look at the criminal injuries compensation scheme and the Pool Re scheme and try to produce something which would deal with quite a significant number of cases which probably do not involve a massive amount of money, but in which people who are not very well resourced suffer a great deal, and disproportionately, as a result of the kind of offence that the noble Lord described.

--- Later in debate ---

[Lord Paddick (LD)]

My Lords, I will also speak to the other amendments in this group. The Committee has already considered these issues, so I can be brief. I apologise for not recognising that some of the amendments in a previous group covered similar issues.

In that previous group, the noble and learned Lord, Lord Falconer of Thoroton, suggested that the maximum number of hours attached to the unpaid work condition and the attendance condition, and the maximum fine that could be attached to a caution, should be set in the case of the fine and varied in all cases by regulations and that those should be amended only by the affirmative resolution procedure. The noble and learned Lord previously said in Committee that this was not an ideal solution, as regulations could not be amended and that this House was reluctant to use the “nuclear option” of praying to annul regulations, which is the only option available if it disagrees with a statutory instrument. Even with the affirmative resolution procedure in place, in practice, if the House disagrees with an increase to the maximum number of hours of unpaid work—or any of the other conditions attached to police cautions—there is little that it can do about it, unless changes are made through primary legislation.

I grant that the value of money is eroded over time by inflation and periodically the maximum fine capable of being attached as a condition to a caution may need to increase accordingly, but surely not the amount of time to be spent in unpaid work or subject to the attendance condition. There is a question of principle. If an offence is so grave that greater punishment is required, that should be a matter for the courts and not for a police officer to decide. There is precedent in our legal system for this principle. If magistrates want to impose a harsher sentence, they must refer eligible cases to the Crown Court, where a more senior judge can make a decision with more serious consequences.

When I joined the police service in the 1970s, the police performed the role of both investigator and prosecutor. Parliament then decided that prosecution decisions should be made by an independent body, the Crown Prosecution Service, for very good reasons that I do not need to rehearse here, while punishment of the individual has primarily been a matter for the courts, supported by reports from experts on the medical, social and criminal antecedents of the accused, in many cases, and considered by highly trained and experienced judges who are obliged to follow sentencing guidelines. In the proposals contained in this part of the Bill, the police are investigators, prosecutors and sentencers. There must be limits on the extent to which they should be allowed to carry out all three functions in relation to a case and those limits should be set out in primary legislation, on the face of the Bill. That is the purpose of these amendments and I beg to move Amendment 174.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I listened with interest to the noble Lord, Lord Paddick. As he says, in this part of the Bill the police are investigators, prosecutors and sentencers. They also decide whether the matter should be sent to the CPS, with the people charged and sent into the court system. Of course, once the case gets into the court system, magistrates are judge, jury and sentencers. There are different roles at different stages of the system. The burden of the amendments in the name of the noble Lord, Lord Paddick, is in some way to codify, limit and guide the police when they are doing this pre-court intervention with the type of cautions set out in the Bill. I look forward with interest to the Minister’s response.

[Lord Wolfson of Tredegar (Con)]

My Lords, I thank the noble Lord, Lord Paddick, for putting forward this group of amendments. If I can put it this way, the noble Lord realistically recognised that we have covered some of this ground before—not this particular issue but the conceptual underpinning on which it is based. I hope, therefore, that the Committee and the noble Lord will not take it amiss if I reply relatively briefly, because we have covered some of the points before.

Amendments 174, 176, 182 and 185 relate to the delegated powers contained in Part 6. The amendments propose to remove the clauses that allow the maximum amount of the financial penalty and the maximum number of unpaid work and attendance hours to be specified in regulations and would replace that by putting the details in the Bill. Amendments 175, 183 and 184 set out that the maximum penalty attached to a caution would be fixed at £200 and would make it explicit that an offender’s ability to pay must be taken into account.

The Bill contains powers to set and amend the amount of the maximum financial penalty and to amend the maximum number of unpaid work or attendance hours by regulations via secondary legislation. As I explained on a previous occasion, it was drafted that way to ensure maximum flexibility when responding to the needs of operational practitioners. Any changes to these regulations will be subject to parliamentary scrutiny in the normal way, but removing the delegated powers in their entirety, which is what Amendments 174, 176, 182 and 185 would do, would mean that there is no flexibility to amend either levels of financial penalty or the number of unpaid work hours. If we have the maximum financial penalty on the face of the Bill, to change it or update it, whether because of inflation or anything else, we would have to have to come back to primary legislation. I respectfully suggest that that is not a great use of parliamentary time.

Finally, as to the matter of whether the offender’s ability to pay should be explicitly set out in statute, of course it is a relevant factor, but we believe that this—alongside a range of other relevant factors around giving a financial penalty, the amount that it is set at and how quickly it is going to be paid—is better set out in detail in a statutory code of practice rather than in the Bill. With apologies for taking that a little shortly, I invite the noble Lord to withdraw the amendment.

--- Later in debate ---

[Lord Paddick (LD)]

My Lords, we support this amendment, but, as I have already said, we have our doubts about the whole regime. For the benefit of noble Lords who missed the midnight debate on Monday, I bring you the edited highlights, which are relevant to this group.

I quoted from the House of Commons briefing paper 9165. On the Government’s proposals on diversionary and community cautions, it says:

“the available evidence suggests the system: … may result in a further decline in … OOCDs; … is likely to cost more … is unlikely to have a major impact on the reoffending rates of offenders; and … may improve victim satisfaction but is unlikely to have a major impact.”

I have to say that the high point for me on Monday night—or was it Tuesday morning?—was the Minister’s answer to my question about how effective conditional cautions, which are the existing system of cautions with conditions attached, were, compared with simple cautions that do not have conditions attached. The noble Lord announced with glee, if I may say that in a very respectful way, that:

“As the Committee will know from previous exchanges, I am quite a fan of data.”—[Official Report, 8/11/10; col. 1577.]


The Minister then looked at his phone and a message from his WhatsApp group—it is good to see members of the WhatsApp group in the Box today—saying that, in effect, there was no data. The Government not only keep no record of how many conditional versus simple cautions are administered, just the total number of all cautions, but have no record of what kind of conditions are attached to conditional cautions. On the basis of that data void, they plan to implement a system where all police cautions will need to have conditions attached.

I also quoted from a 2018 paper by Dr Peter Neyroud, former chief constable of Thames Valley Police and now a distinguished academic, published by the University of Cambridge and commissioned by the National Police Chiefs’ Council, entitled Out of Court Disposals Managed by the Police: A Review of the Evidence. On the police attaching conditions to cautions, he said:

“The result … was a significant degree of inconsistency and a substantial number of inappropriate and un-evidenced conditions.”


The right reverend Prelate the Bishop of Durham gave us an example of, presumably, a youth who was banned from public transport, which meant he could not get to school. I continue to quote from Dr Peter Neyroud:

“Whilst the provision of further training and more guidance improved the situation somewhat, the cost of such an investment within a more general implementation of OOCD’s with conditions”—


exactly what the Government are proposing—

“would be prohibitive and, in any case, did not completely resolve the problems.”

Never mind—the noble and learned Lord, Lord Thomas of Cwmgiedd, came up with a better idea: the inspectorates of the constabulary and of the CPS could ensure consistency, so that somebody in a similar situation, committing a similar offence, would have the same conditions attached, no matter where they were in the country. I am afraid not, said the Minister:

“Those two inspectorates are not regulators; they do not have power to enforce compliance.”—[Official Report, 8/11/21; col. 1576.]


Inconsistent, inappropriate and unevidenced conditions will be attached to cautions all over the country, bringing no benefit to offenders, little benefit to victims and increased costs to the criminal justice system. That is what this part of the Bill does.

We support this amendment, which should also apply to diversionary cautions, but the omens are not good that the police will know what they are doing when it comes to applying conditions to support the offender to desist from offending. There is serious doubt that, even when they do, the conditions will have any effect on reducing reoffending.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, this has been a wide-ranging debate. When the right reverend Prelate introduced it, he made a general plea in favour of cautions and on why his amendment was appropriate. He spoke of the benefits of cautions and what they need to be effective, and of the revolving door of crisis and crime and of a holistic approach. He particularly gave the example of women offenders, for whom a holistic approach is appropriate to reduce reoffending. Then he went on to give examples of why quite a lot of cautions fail—by giving too many conditions. My experience, through following both cautions and sentences through court, is that the more conditions you put in place, even if they are in place for the best of reasons, the more likely you are to have a breach and to re-enter that cycle, coming back to court or to the police when conditions are breached.

My central point is that out-of-court disposals are a difficult area. The Government and previous Governments have a lot of experience in trying to come up with an appropriate regime for out-of-court disposals. As we have heard on the Bill—I agree with pretty much all the points made by the noble Lord, Lord Paddick—we have another cautions regime, which we hope will work in some way. I particularly noted the point made by the noble and learned Lord, Lord Thomas of Cwmgiedd, about the need to see draft regulations or a draft code of practice to ensure consistency across the country.

Police, Crime, Sentencing and Courts Bill

Lord Ponsonby of Shulbrede Excerpts

Lords Hansard - part two & Committee stage
Wednesday 10th November 2021 Lords Chamber

[Lord Paddick (LD)]

My Lords, in moving Amendment 187 in my name I will speak to the other amendments in this group. I ask the Committee to forgive the repetition.

I understand the Government’s desire to simplify out-of-court disposals and take the pressure off courts but, as I have said in several previous groups, research has shown that moving to the system suggested by the Bill, as piloted by some police forces, is likely to cost more, do nothing to reduce offending and have little or no impact on victim satisfaction.

I have also suggested that the complexity of having to impose conditions in every case when a police caution is given, whether a diversionary or community caution, is likely to have the unintended consequences of increasing the number of cases dealt with by no further action being taken and the number of cases sent to court—anything to avoid the complicated process of setting, arranging and monitoring compliance with the conditions that must be set whenever anyone is given a police caution. Research already shows a reduction in the number of out-of-court disposals in recent years, and these changes are likely to result in further reductions.

Clause 97 abolishes all other forms of out-of-court disposal. I will give some illustrations of what this means in practice. A young lawyer or medic who, completely out of character, has too much to drink, gets drunk and ends up making a nuisance of himself is arrested and, once sober, is given a simple caution. The salutary effect on such an individual’s future behaviour is dramatic, the impact on his career prospects negligible and the amount of time taken by the police to deal with the case minimal. If the impact of his being stopped and spoken to by a police officer has an immediate sobering effect, he might even be given a fixed penalty notice for disorder and sent on his way. Neither of these out-of-court disposals would be available under the Bill as drafted.

If someone drops litter, is seen by a police officer and refuses to put it in the bin, at the moment, that police officer can issue a fixed penalty notice for disorder. Under the Bill, the only course for the officer would be either not to take any action at all, undermining both the law and the authority of the police, or to arrest the person and take them to a police station so that they can be cautioned with conditions attached. I am at a bit of a loss as to what conditions might be attached to a caution for littering, but perhaps the Minister can enlighten the Committee.

Altogether, there are currently 27 minor offences that can be dealt with by a police officer issuing a fixed penalty notice on the spot, from cycling in a park where cycling is prohibited to possession of khat or cannabis. In all these cases, the only way to proceed, if this Bill passes unamended, would be to make an arrest, so that a community or diversionary caution with conditions attached could be administered.

This is a recipe for an increase in anti-social behaviour that goes unchallenged, because police officers faced with the bureaucracy of arrest and a community or diversionary caution with conditions attached will look the other way. What is unclear—the Committee needs to know this, and if the Minister cannot answer from the Dispatch Box, I ask him to write to me—is what happens to cannabis and khat warnings where people who have cannabis or khat found on them are seized by a police officer and a warning is given to them on the street. I would argue that that is a type of out-of-court disposal. Is this also to be outlawed by the Bill? If it is, it will have serious consequences for police resources.

What is proposed by this clause, with community and diversionary cautions being the only out-of-court disposals allowed, will result in fewer people having any action taken against them for anti-social behaviour and significant police resources being used to deal with minor offences. That is why Clause 97, which abolishes other forms of out-of-court disposals, such as fixed penalties for disorder, should not stand part of the Bill and the simple police caution should be retained. I beg to move.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the amendment from the noble Lord, Lord Paddick, is to retain simple cautions. The examples he gave illustrate the point I made earlier: that this is a very complex area, with a lot of history of government trying to manage out-of-court disposals in different ways. He gave the example of 27 minor offences which can be dealt with by fixed penalty notices and asked what happens with cannabis and khat warnings. I would be interested to hear the answer.

The noble Lord asked—I think rhetorically—what else a police officer can do other than give a conditional caution. The answer is that they can do nothing. They can give the person they are dealing with a talking to; in my experience, police officers are perfectly capable of doing that. Nevertheless, as I said in an earlier group, this is a very complex area. The Government have tried a number of different out-of-court disposal regimes in recent years; I am not aware that any approach was particularly better than previous ones. Indeed, the noble Lord gave examples of the not obvious success of the pilot schemes for this regime.

Nevertheless, I think that out-of-court disposals are appropriate. They need to be handled in a proportionate way and with the right amount of training for the police officers dealing with them. Clearly, an appropriate level of intervention would, one would hope, be for the benefit of the offenders, given that it is very likely that a large proportion of the offenders will be drug and alcohol users. Having said that, I will be interested to hear why the Minister thinks a simple caution is not appropriate to retain on the statute book.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)]

My Lords, it is fair to say that this group of amendments goes to the heart of why reform to out of court disposals was needed and the aims of the new cautions framework. The background is that the public consultation on out of court disposals showed that more than half of respondents did not believe that they deterred offending. As such, it was felt that there should be a framework with more meaningful and proportionate consequences and a move away from “warnings” and “simple cautions” to a system with, on the one hand, repercussions for the offender but, on the other, an opportunity to reduce reoffending and address often complex needs.

The noble Lord, Lord Paddick, has indicated his intention to oppose Clause 97 standing part of the Bill. Removing that clause would allow existing cautions to remain in use. That would undermine the entire reform and change that we are trying to bring about and would continue the current inconsistent approach that we have across police forces. We do not want to stick with the status quo; we want to improve it.

As I understand it, Amendments 187 and 188 are consequential to the removal of Clause 97. Amendment 189 seeks to retain the option to use the simple caution as well as the new diversionary and community cautions. It also means that, if any existing cautions were retained, the giving of these disposals to offenders would then be taken into account in any repeat offending. Clause 96 deals with the provisions of restrictions on multiple use of cautions, so I will not expand further on that point at this stage.

Following the joint government and police review of out of court disposals between 2013 and 2014, it was established that the existing disposals framework needed reform. The National Police Chiefs’ Council developed its own two-tier out of court disposal strategy in 2017, which removed the need for the simple caution, penalty notice for disorder and cannabis and khat warnings. I will come back to the specific point the noble Lord, Lord Paddick, asked about. Since then, one-third of forces have moved to the two-tier framework, using conditional cautions along with the non-statutory community resolution. We believe that attaching conditions to the caution means that the recipient must engage in some way with the outcome as well as accepting responsibility. That is a more proactive and robust approach than the simple caution, which requires no further engagement by the offender and is often nothing more than a warning.

Removal of the simple caution does not mean that there is no provision for offenders where conditions requiring higher levels of engagement are considered unsuitable. As I said in response to an earlier group, we want to ensure a wide range of conditions is available, including those that require a low level of engagement on the part of the offender; indeed, it goes down at the bottom end to an expectation not to reoffend, so that such conditions can be selected where appropriate. The critical point is that there should be flexibility in the conditions that may be set in terms of the level of engagement that is required from the offender, so that the authorised person has discretion in this regard when choosing the conditions.

On the specific point of cannabis and khat warnings, which the noble Lord, Lord Ponsonby, also echoed, the community resolution already replaces cannabis and khat warnings. This is NPCC policy. The community resolution will be retained by the police as the only non-statutory option. Police are well practised in using the community resolution for this type of drug possession, and it does not require a formal admission of guilt either.

The final point I make is that the noble Lord, Lord Paddick, implied—I think; I may have got this wrong—that removing the simple caution meant that a low-level offence could be dealt with only by means of a diversionary or community caution. Fixed penalty notices do not fall under the reform to out of court disposals and will still be available for use where relevant. The example of littering given by the noble Lord may be dealt with by those means or indeed by community resolution, which is an alternative and non-statutory disposal that police forces will retain. I hope that answers his question on the khat point and also his point on littering.

--- Later in debate ---

[Viscount Hailsham (Con)]

My Lords, I will make a very brief point in support of what has just been said by the noble Baroness and the noble and learned Baroness. There are a number of professions where you have to establish that you are a fit and proper person. I act as a legal assessor to the Nursing and Midwifery Council, and I am aware of the registration process: you have to assert that you are a fit and proper person. I can see that a caution of the kind that we have been discussing might stand in the way of a registration being effective, and that would be a great tragedy.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank the noble Lord, Lord Paddick, for tabling his amendment. As we have seen through this debate, it has inspired many contributions on a wide range of points about whether and when a caution should be spent: after three months or immediately when the caution is given.

I remember sitting on the Michael Sieff Foundation report, and our discussions about whether all youths should effectively have their criminal records expunged unless there were particularly serious matters in there. I also remember debating that point very well, because I was sceptical about it at the time. The argument that I found most convincing was from the lady who was an academic helping us. It was based on the inadequacy of the record-keeping system for having any sort of differentiated approach for expunging a criminal record. It is really much better and more reliable to expunge the lot unless there are extreme reasons not to. That way gave young people the best chance of getting a good job and starting their career.

All noble Lords who spoke in this debate made interesting points. My noble friend Lady Chakrabarti made one particular point about the record-keeping of the internet. This is a huge issue; the internet does not forget. Of course, employers make their own checks through the internet, whether or not they have been given permission to. In my experience, young people are conscious of this and spend a certain amount of time editing their internet history to make sure they get any job they are offered. That is a flippant point. Nevertheless, this was an interesting debate and I would be interested to hear the Minister’s reason for why a caution should not be spent at the time it is given, rather than after three months or whatever period it was. I too had the briefing from Transform Justice, which made a good case, so I look forward to the Minister’s response.

[Lord Wolfson of Tredegar (Con)]

My Lords, first, I will pick up one point from the last group to make it very clear: if I have made any errors, I am happy to correct them. As far as I am aware, there is no doctrine of ministerial infallibility; I say that with all due respect to my colleagues. Because the Cabinet table is still terra incognita to me, I hope I am on the right side of good behaviour even speaking from this seat.

I reassure the noble Lord, Lord Paddick, that we are not introducing any changes to the current regime for rehabilitating offenders who receive a caution. The proposed diversionary caution replicates the current system for the conditional caution, with the same spending period. I also point out that the lower-tier community caution being introduced has no spending period, and therefore mirrors the current adult simple caution. In effect, we are maintaining the position that pertains with a spending period for the lower-tier and higher-tier cautions. We think that is a sensible position to take.

I agree with the noble Baroness, Lady Chakrabarti, that the Rehabilitation of Offenders Act was, to use her phrase, a wonderful thing. It is an important piece of legislation and the principle underpinning it is important. It seeks to strike a balance between protecting the public and rehabilitating offenders, and it does that by requiring that in most cases a criminal record must be disclosed for a period of time but—this is the important “but”—after that period, the offender no longer needs to disclose it for most types of employment. I hear the point made by my noble friend Lord Hailsham that cautions sometimes have to be disclosed, but it depends for what purposes and when. There is an important spending period.

The real question at the heart of this debate is whether diversionary and community cautions should have the same spending periods. It is at that point that I respectfully diverge from the approach of the noble Lord, Lord Paddick, because, if a diversionary caution were to be treated as spent at the time a caution is given, it would suggest that there is nothing in favour of public protection that requires the disclosure of that caution, and the offending it relates to, for even a limited time—up to three months—after it has been given. That position is simply not tenable, once we recall what the diversionary caution is all about. Let us remember that the diversionary caution requires the authorised person to be satisfied that there is sufficient evidence of offending to charge the offender, and the offender themselves must both admit to that offending and consent to the giving of the caution. Public protection therefore continues to be engaged after it is given as, unlike a community caution, criminal proceedings may be instituted if the offender does not comply with the conditions.

Over and above that, again unlike the community caution, the diversionary caution can be given for indictable offences, admittedly in exceptional circumstances and with permission of the Director of Public Prosecutions. That again highlights the importance of placing a time-limited spending period on cautions that relate to more serious offences. Removing, therefore, the spending period for diversionary cautions blurs the important distinction between the two sorts of caution.

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[Lord Ponsonby of Shulbrede (Lab)]

I thank my noble friend Lady Massey for introducing these amendments. She did so comprehensively, and I shall speak very briefly in support of them.

When most young people go into custody, they will serve half their sentence in custody and the other half out on licence or on a training order. The gist of the Bill is to increase the custody element to two-thirds, while the amendments would put that back to half the period. As I have said on other amendments, I have an aversion to sentence inflation, and this is an example of it. There is no evidence that I am aware of that it would reduce reoffending. Rehabilitation is available within both the youth estate and the adult estate, but it is so much better if it can be engaged while outside prison.

On principle, I am against sentence inflation. My noble friend has set out with her normal expertise why, when looking at a wider context of international law, this example of sentence inflation is not appropriate. I look forward to the Minister’s response.

[Lord Wolfson of Tredegar (Con)]

My Lords, these amendments, which I am grateful to the noble Baroness, Lady Massey, for putting down, all relate to custodial sentences for children. There were one or two points that she made that I shall perhaps respond to when we get to group 9, because there is a little bit of an overlap with some of the points there. I hope that she will forgive me if I respond to some of the points then, but I shall seek to respond to the majority now.

As the Committee will be aware, there is a separate and distinct sentencing framework for children. When sentencing children, the courts have to take into account two statutory considerations: the principal aim of the youth justice system, which is to prevent offending by children and young people, and the welfare of the child. I hope that overlaps with some of the points made by the noble Lord, Lord German, emanating from the Sentencing Council.

Although, therefore, custody should always be a last resort for children, there will be some cases where it is necessary, and we believe that the court is best placed to determine the appropriate sentence. But those who commit the most serious offences, and who pose a risk to the public, should serve an amount of time in custody which reflects the seriousness of their offending.

Against that background, let me go through the relevant clauses and amendments. Clause 101 relates to—and I underline this point—minimum sentences. The noble Baroness, Lady Jones of Moulsecoomb, on a few occasions referred to “mandatory” sentences. The clause is not headed “mandatory sentences”; the words “mandatory sentence” do not appear in this Bill, except in one place, Clause 101(8), which refers back—it is a pity that the noble Lord, Lord Paddick, is not in his place, because we have a nice piece of parliamentary drafting here—to Section 399(c) of the Sentencing Code “(mandatory sentence requirements)”, but that refers to a minimum sentence where the conditions set out in the clause do not apply.

I have two points to make in this regard. First, minimum sentences are not mandatory in the sense that they must be imposed. They are a mandatory consideration that the court must make before passing a sentence unless the provision in the sentence is met. Secondly, the Bill does not introduce minimum sentences for under-18s for the first time. Offenders aged 16 or 17 are already subject to minimum sentencing provisions if convicted of threatening with a weapon or bladed article, or a repeat offence involving a weapon or bladed article.

The threshold for courts to depart from imposing a minimum sentence is open to them, the question being whether the test is met. This amendment aims to ensure that the change in the threshold will not apply to offenders aged 16 and 17 who are convicted of these two offences. In Clause 101 we seek to ensure that courts depart from the minimum sentence only in exceptional circumstances.

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[Lord Thomas of Cwmgiedd (CB)]

My Lords, in the light of what my predecessor as Lord Chief Justice, the noble and learned Lord, Lord Judge, has said, I can be very brief.

First, I wholeheartedly agree with him. Secondly, I do not think that we should beat about the bush at all about the change to the word “exceptional”. Any lawyer knows that the intention is to raise the bar significantly. You use that word only when you want to try to minimise the discretion or ambit of when it is to happen. I hope that the Minister will accept the clear intention of the change and answer the question posed in the earlier debate by the noble Lord, Lord German, about the difference. There is a clear and obvious difference.

Thirdly, having had a little less time as a judge and coming to the job a bit later, I can see an argument, which one has to accept, for saying that, by setting a minimum term, Parliament is giving an indication of what it thinks is appropriate. Perhaps that was not the right road to go down, but we have gone down it. But where this Government are wholly wrong—I do not think that we should mince our words about that—is in saying that a judge should impose a sentence that is not just. In refusing this amendment, the Government are saying, “We don’t care if injustice results: you must look at the circumstances, and if they are not exceptional” —a high bar—“you must impose an unjust sentence”. Have we really sunk so low as to require our judges not to do justice?

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, this has been an interesting debate. I agree with the points that the noble Lord, Lord Marks, has made, but I want to give a different perspective that partly undermines the argument put by him and all the other noble, and noble and learned, Lords who have spoken. The noble and learned Lord, Lord Judge, said that, ultimately, it is for judges to pass a sentence that is just. He pinned his argument on that single point.

We talked about youths in the previous group. For youth justice, the overarching purpose when sentencing is to reduce reoffending. That purpose supersedes the overall position of needing to be just in the sentence. That is why there is a minimum sentence in youth courts of four months. The reason is that, when you go to youth offender institutions or things like that, you are invariably told by the prison offers and teachers dealing with the young people that they need to be there for a duration of time to get their education. That is the justification for having a minimum sentence of four months in youth cases.

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Lord Ponsonby of Shulbrede Excerpts

Lords Hansard - part one & Committee stage
Monday 8th November 2021 Lords Chamber

[Baroness Randerson (LD)]

My Lords, the noble Baroness has made a very strong point about an issue which applies only in a specific part of the country. Most of us do not have experience of this issue. As the noble Lord, Lord Berkeley, said, there is a more general trend in the use of bikes as cargo bikes—and, indeed, my own son also used to take his young children around in a little cart behind his bike. It used to worry me greatly. The girls no longer like to be reminded of it, but they seemed to think it was great fun at the time. Of course, the issue of insurance is important. It seems to me that the point the noble Baroness has made is that there is a long-overdue need for a review of hire services—vehicles for hire—and since the use of bikes is much more common these days, we really should include them in that review.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I too agree that the noble Baroness made a compelling speech, with which a lot of people who live in London will have a lot of sympathy. I also agree with my noble friend Lord Berkeley, who raised the issues of cycles for freight, insurance and how the very rapid development of small electric vehicles and bicycles expanding their remit in London is a wider problem that needs to be addressed. The noble Baroness, Lady Randerson, also made that point.

As I have said to the Committee before, I sit as a magistrate in London, very often in Westminster. I remember dealing with pedicabs a number of years ago. Those offences were brought to our attention by Westminster City Council. From memory—this is a number of years ago—it was usually to do with pedicabs being parked on pavements, with the police bringing people to court through the council and impounding some vehicles. I have not seen those offences for several years now. I do not quite know what has changed—perhaps Westminster City Council does not feel it has the power to do that anymore, I do not know; it is a moving target. Nevertheless, I think the central point of the noble Baroness’s amendment is powerful.

I do not know whether there are any practical problems with harmonising the regulations with the rest of England and Wales, so I look forward to what the Minister says on that point.

[Lord Sharpe of Epsom (Con)]

My Lords, I am grateful to my noble friend Lady Stowell for comprehensively setting out the case for these amendments, which relate to the regulation of pedicabs. As she pointed out, Clause 66 relates to motor vehicles which are defined as “mechanically propelled”. They are the most dangerous and cause the most harm, so it is logical that they are the focus of this clause.

The noble Lords, Lord Berkeley and Lord Ponsonby, and the noble Baroness, Lady Randerson, mentioned other types of similar vehicle that might be caught by this, so it is perhaps worth mentioning what the Government are doing on cycling offences. In 2018, we held a consultation to consider cycling offences causing serious injury or death, as well as reviewing existing cycling offences. The Government feel that any new offences applicable to cyclists, with or without a trailer, are best legislated for as a package, rather than piecemeal. Moreover, we believe that there should be a separate framework of cycling offences, as compared with motoring offences, as it may not be proportionate to apply to cyclists offences intended for drivers of motor vehicles and their corresponding penalties. The response to the consultation will be published in due course—I hope before the end of this year, but early next year at the latest.

The wider question of the regulation of pedicabs, including that of noise nuisance caused by sound systems located on pedicabs—which I agree from experience can be ear-splitting—is not a straightforward issue. In England, pedicabs generally fall under the taxi and private hire vehicle licensing regime, as various noble Lords have mentioned, in that they can be regulated as a hackney carriage—a taxi. The exception to this is London, where, as my noble friend Lady Stowell explained, they fall outside the existing taxi legislation. It should also be noted that taxi and private hire vehicle legislation is a devolved matter in Scotland and Wales, although the legislation that applies in Wales is the same as that which applies in England.

The Government are aware of the long-standing concerns that pedicabs contribute to safety and traffic-related issues in central London. The current situation in London means that there are few existing powers to control pedicab operations effectively. This has meant that pedicab operators, drivers and their vehicles are not licensed, there are no requirements for drivers to undergo criminal record or right-to-work checks, as there are in other industries, and there is no fare control. And there may very well be insurance issues, as the noble Lord, Lord Berkeley, mentioned.

The Government agree that it is in the interest of safety and fairness to passengers to fix this legal anomaly and, as my noble friend Lady Stowell noted, a Private Member’s Bill that would enable Transport for London to regulate pedicabs in London is currently being taken forward by Nickie Aiken MP—the Pedicabs (London) Bill. I am pleased to confirm that the Government intend to join the very long list pointed out by my noble friend and support this Bill. I am therefore happy to offer her a meeting with the Minister, my noble friend Lady Vere, to discuss this further, if she would like. I commend my noble friend for raising this issue. We agree that it needs to be addressed, and I hope she is reassured that the Department for Transport is on the case. For now, I hope my noble friend feels free to withdraw her amendment.

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[Lord Judge (CB)]

My Lords, I wonder whether I should say that I am not going to make a second speech polishing up my first. I apologise to my noble and learned friend Lord Hope that I got my words in before he did.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I have to say that I find myself in the somewhat invidious situation of supporting the Government. The Labour Party supported this clause in the other place; we agree that it fills a gap in the law and allows the high level of harm caused by these incidents to be recognised.

The debate has focused essentially on the possibility of imprisonment for careless driving, and the noble and learned Lord, Lord Hope, made it clear in his speech that that was the burden of his objection and the reason he was moving his amendment proposing that the clause do not stand part of the Bill.

The burden of the argument made by the noble Lord, Lord Thomas of Gresford, was that the mental element in the case of careless driving is no more than negligence and the noble Earl, Lord Attlee, said that that would be a momentary lapse, which would have a serious consequence. But when one looks at health and safety legislation, you can indeed have momentary lapses which have very serious consequences. Magistrates occasionally deal with health and safety legislation as well. In addition to that, as part of health and safety legislation that I have seen, it is about a more systemic approach to health and safety within the environment of the factory or whatever you are talking about. Nevertheless, there can be momentary lapses that lead to serious consequences and there is the possibility—although it may be unlikely—of a prison sentence for the director of a company who is responsible for health and safety matters.

As I introduce this, I acknowledge that I find myself in an unusual situation of supporting this element of the Government’s proposals. Nevertheless, I would hope that it would be a very exceptional case, where there is such egregious negligence, that resulted in a prison sentence, when the vast majority of cases are momentary lapses, possibly with tragic results. I would have thought that those types of cases would not result in a prison sentence.

[Earl Attlee (Con)]

My Lords, the good thing is that the party opposite is being consistent, because it introduced the offence of causing death by careless driving.

Police, Crime, Sentencing and Courts Bill

Lord Ponsonby of Shulbrede Excerpts

Lords Hansard - part two & Committee stage
Monday 8th November 2021 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

I am. Sorry, ignore that. Strike that from the record. I will come back to that.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I was interested in the explanation of this amendment by the noble Lord, Lord Paddick. As he rightly said, there are all sorts of potential issues—one can think of electric cars—and reasons this may not be workable as it has been drafted. Nevertheless, the noble Lord made the point about the vulnerability of police officers when they are in this situation, and of course the vast majority of cars do use conventional engines at the moment.

The other point made by the noble Lord is that a driver is under no obligation to get out of the vehicle. I have to say that, in the current circumstances, if there was a lone woman in the vehicle and a lone police officer asked her to step outside, that may be problematic. Nevertheless, that is not the burden of the noble Lord’s amendment. He has raised an interesting point; we want to protect police officers in vulnerable situations, and I look forward to the Minister’s reply.

[Baroness Williams of Trafford (Con)]

My Lords, if I understand the noble Lord, Lord Paddick, correctly, this amendment is aimed at improving the safety of police officers at the roadside. I share his concerns and want to reassure him that the safety of police officers is vitally important to this Government, as is demonstrated by our programme of work on the police covenant. I will not echo the arguments made to the noble Lord by the noble Baroness, Lady Randerson, on the defects of his amendment, but I want to say that we are committed to ensuring that the police have the powers that they need to protect people.

The British model of policing is based on consent, and the exercise of police powers, including the Section 163 power, needs to be transparent, fair and legitimate to ensure that the public can remain confident in policing. I am supportive of the intention behind the extension of this power, but more evidence and consultation are needed to demonstrate that it would provide benefits to officers’ safety and build support for the effectiveness and legitimacy of the proposal to extend the power. I can say to the noble Lord that we will work closely with the National Police Chiefs’ Council, the College of Policing and the Police Federation to explore these issues further and consider what more can be done to improve officer safety at the roadside. On that basis, I hope that he will withdraw his amendment.

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[Lord Berkeley (Lab)]

My Lords, I have added my name to this amendment. One of the most telling statistics is that there were 28,000 hit-and-run collisions in 2017, all involving failure to stop and report collisions that involved actual or potential serious or fatal injury. This number had increased by 43% since 2013—in only four years. That is a very significant increase and, as other noble Lords have said, the current maximum penalty for a hit-and-run collision is six months in prison which, as the noble Baroness said, might be all right in some circumstances, but not in others.

The other issue is that, now that most people have mobile phones in their cars, there should be a general duty to report collisions while at the collision scene. Yes, there are a few places in this country where there is not any signal, but very few compared to where there is; and if it is not possible, the driver or rider may subsequently report the collision and produce their insurance certificates, if appropriate, at a police station or to a constable. This should all be done within two hours of the collision, because 24 hours means that, if there were any risk of alcohol or drugs having an effect, that could be lost in that time. This is a really important amendment, and I would be interested if we could find some more up-to-date statistics on what has happened since 2017, because it is a very serious issue.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, my right honourable friend Ben Bradshaw spoke to his amendment, which was along similar lines, in the other place, to increase the sentences for this type of offence from six months to a possible 14 years. I agree with most of the points made by the noble Baroness, Lady Jones, and particularly her opening point: in general terms, I do not like sentence inflation. This is a very large potential inflation in sentences. Nevertheless, I take the point that she and other noble Lords have made, that a maximum of six months in custody for failing to report a serious or fatal injury during a road traffic accident seems like an unduly light sentence for the most extreme cases.

We have heard reference to the petition; I understand that it will be debated in the House of Commons later this month. I have a question for the noble Lord, Lord Paddick. I would be interested to know how this would interact with existing sentences. For example, if a person has committed an offence causing serious injury or death by dangerous driving, would the expectation be that they would also be sentenced to a number of years for not reporting the accident? How would the two charges work in combination with each other? I have an open mind on these amendments, and I look forward to the Minister’s response.

[Baroness Williams of Trafford (Con)]

My Lords, as noble Lords have explained, Amendments 161 and 166 relate to the offence of drivers failing to stop. We know that in a small number of cases, the failure to stop might be related to an event that leads to the death of, or serious injury to, another person, but in the vast majority of cases, convictions involve low-level traffic incidents. In an extremely small number of cases, there may not be any other evidence to connect the death or serious harm with the driver who fails to stop, meaning the only offence they have committed is that failure to stop. I understand the concerns raised, but these amendments potentially risk providing for a maximum custodial sentence of 14 years for failure-to-stop offences resulting in serious or fatal injuries in circumstances where there would not have had to be evidence of a causal link between the failure to stop and the death or serious injury.

What is more, these amendments cut across the basis for the current offence. I must stress that the offence of failure to stop and report is designed to deal with the behaviour relating to the failure to stop. The offence is not to provide an alternative route to punish an offender for a more serious but unproven offence.

Where there is evidence that the driver caused harm, there are a range of other offences, including causing death or serious injury by dangerous or careless driving, with which the driver can be charged. In these cases, the courts can treat the failure to stop as an aggravating factor that adds to the overall seriousness of the offending. Where there is evidence that the driver knew about the incident and took steps to avoid detection, they may be charged with perverting the course of justice, a common law offence that already carries a maximum sentence of life imprisonment.

Linking death or serious injury with a failure to stop as the cause would risk creating an unnecessary and unfairly severe offence. To take an example, where there was evidence of causing death by careless driving and failure to stop, the offender would face a maximum penalty almost three times higher for failure to stop than they would for causing death by careless driving—14 years compared to five years— even though the causing death offence requires proof of a fault in the standard of driving.

The law already imposes severe penalties for vehicle offences that lead to death or serious injury, but when doing so, a clear causal link must be proved between the driver’s behaviour and the outcome. The proposed amendment would essentially be equating, or in some cases exceeding, the seriousness of failure to stop with actual culpability for causing death or injury. That, as I have said but want to repeat, causes serious anomalies with other offences that could result in potential injustices, and it is why the Government cannot accept the amendment.

In relation to Amendment 166, which also seeks to amend the current offence, we are concerned by the potential impacts on what is a complex area of law. For example, it is unclear what impact replacing the word “accident” with “collision” would have; it might exclude incidents that are currently and rightly within scope of the existing version of this section. We also reiterate our objections set out above to the creation of the offence of failing to report where the collision caused foreseeable serious or fatal injury.

We are of course aware of the traumatic effects of such incidents, however rare. From what I have already said, it should be clear that this is a complex area, and any change to the law has to fit within the current driving offence framework. However, let me assure noble Lords that my ministerial colleagues at the Department for Transport understand the concerns that have been raised. I can assure the Committee that the Department for Transport is exploring options that could be pursued in this area, including but not limited to the available penalties and how the offence operates as part of long-term and wider work on road safety. I hope that, with those assurances, the noble Lord, Lord Paddick, will withdraw his amendment.

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It is clear that, if it is known that there is to be a review for compliance and consistency by the inspectorates, this will help bring that about, quite apart from providing public confidence that compliance with the code and consistency are being achieved in practice. We support the noble and learned Lord’s amendment. Noble Lords may be bored, and I am exhausted, but I beg to move Amendment 170.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I want to say something from the Back Benches about my experience of sitting on scrutiny committees, which the noble Lord has just spoken about. I have sat on scrutiny committees for reviewing out of court disposals for both the British Transport Police and the Metropolitan Police. In my experience, they are good committees because they bring together a range of interested parties on whether out of court disposals are appropriate—magistrates, probation, CPS, police, YOTs and sometimes, in addition, there may be housing, education and health people from local government to review the appropriateness of out of court disposals.

In my experience, this system is extremely erratic and not systemised in any particular way. My experience is that the results of reviewing out of court disposals are not fed up through the Home Office, so when I have asked questions of both the MoJ and the Home Office, there is no way of reviewing whether out of court disposals have been appropriately used or of collating the numbers, because the use of scrutiny committees varies so much across the country—that is my understanding. I was interested to listen to the noble Lord, Lord Paddick, talk about the amendment tabled by the noble and learned Lord, Lord Thomas, and whether he is trying to introduce a code of practice to try to regularise these out of court disposal scrutiny committees. They are a good idea, but they need to be standardised across the country.

[Lord Falconer of Thoroton (Lab)]

I am very much obliged to my noble friend Lord Ponsonby of Shulbrede for that intervention, which goes to an incredibly important point raised by the noble Lord, Lord Paddick, and the noble and learned Lord, Lord Thomas of Cwmgiedd, which is that there needs to be proper scrutiny of the police being given a power to, in effect, punish people and impose conditions. There are two aspects to that, which the noble and learned Lord identified in his speech, so beautifully read by the noble Lord, Lord Paddick, even though it is so late: first, that the code of practice is complied with and, secondly, that there is consistency throughout the country in relation to the application of out of court disposals. I would be very interested to hear what the Minister has to say on how that point will be dealt with. We support the amendment proposed by the noble and learned Lord, Lord Thomas of Cwmgiedd.

I also agree with Amendments 170, 171 and 190, which seek to ensure that a person may be authorised to give a discretionary or community caution only if they have been authorised by a prosecuting authority for those purposes and a prosecuting authority must be satisfied that that person has received adequate training and is suitable to carry out those functions. Amendment 190 is a consequential amendment on that. I support these amendments and am very interested to hear what the Ministry of Justice has to say about them. I cannot think that it would not agree with this; some level of quality must be required for somebody who is going to give that caution.

Finally, the noble Lord, Lord Paddick, made points to the effect that this will be more expensive. He did not mention, because he is too kind—or he may have done, but I missed it—the additional £13 million that the Commons paper identifies for the cost of introduction, in addition to the £105 million and £15 million. We are going to spend all this money to achieve no greater victim satisfaction and without any evidence that it reduces reoffending. Why?

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Finally, I pick up a point made from the Back Benches, for a change, by the noble Lord, Lord Ponsonby, that there is too much variation or a lack or a consistency in the use of out of court disposals across police forces. The noble Lord is, with respect, right that there are differences in the way cautions are given across forces. That is why, as I said earlier, we want to simplify the framework to reduce the inconsistency. We have to recognise, however, that there is ultimately an operational policing point here. Necessarily, therefore, because we have different police forces we will have different operational decisions, and different emphases in the way out of court disposals—

[Lord Ponsonby of Shulbrede (Lab)]

If the noble Lord will give way, the point I was making is that there is an inconsistency in the scrutiny of out of court disposals, not just the out of court disposals themselves.

[Lord Wolfson of Tredegar (Con)]

Absolutely. Let me deal with the out of court disposals themselves. I hope I have answered that point. There will, we hope, be a greater consistency of approach, but there will be differences. As for the scrutiny, as I said earlier, the code of practice will, we hope, provide a level of consistency of scrutiny that we also want to make sure is part of this structure. As I said earlier, that will be subject to an affirmative SI.

I am conscious of the time. I think we have drifted into Tuesday, so perhaps I should just conclude by thanking the Committee for contributions and invite the noble Lord to withdraw the amendment, although I am sure the discussions will continue. I also beg to move that the clauses stand part of the Bill.