Privileges Committee Special Report
Debate between Baroness Winterton of Doncaster and Baroness Harman(1 year, 4 months ago)
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Madam Deputy Speaker (Dame Rosie Winterton)
I thank the hon. Gentleman for that point of order. I do not know whether he was here at the beginning but, if he was and if he wishes to speak later, he can catch my eye. He has already made his point, and I think the right hon. and learned Member is addressing that point.
Ms Harman
Thank you, Madam Deputy Speaker. If the hon. Member for Workington (Mark Jenkinson) is saying that he does not believe the Privileges Committee’s inquiry into Boris Johnson was a witch hunt, I warmly welcome the fact that he has said so. I thank him for putting it on the record that he does not believe our inquiry was a witch hunt.
Madam Deputy Speaker
Order. The hon. Gentleman must resume his seat. That is not a point of order. He is addressing it directly to the right hon. and learned Lady, not to me. No more of that, thank you.
Ms Harman
Thank you, Madam Deputy Speaker. If the hon. Member for Lichfield (Michael Fabricant) wants to say that he does not believe the Committee was motivated by malice and prejudice, we would warmly welcome that correction.
Our special report makes it clear that it is not acceptable for a Member of this House who does not want a particular outcome to seek, by pressure or lobbying, to influence the Committee’s decision. The House, by supporting this motion tonight, will be making it clear that, in such an inquiry, the Committee’s responsibility is to gather the evidence, and that it is the evidence that must prevail. That is the only basis on which a decision should be made. Members must not try to wreck the process by pressing Committee members to resign.
If members of the Committee are not prepared to undertake such inquiries, the House would have no protection from those who mislead it. I have nothing but admiration for my colleagues on the Privileges Committee, particularly the Conservative Members. Despite the pressure they were subjected to, they were unflinching. They came to each of our more than 30 meetings and persisted to the conclusion of the inquiry with a complete and total focus, which was a credit to the House. They gathered the evidence, analysed it and based their decision on it, exactly in the way that the House requires them to. That was then put to the House.
By supporting this motion tonight, the House will be making it clear that when it appoints members to the Committee, those members will have the support of the House to carry out their work. They are doing a worthy thing by serving on the Privileges Committee.
Sexual Misconduct in the Police
Debate between Baroness Winterton of Doncaster and Baroness Harman(3 years ago)
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Ms Harriet Harman (Camberwell and Peckham) (Lab) (Urgent Question)
Thank you, Madam Deputy Speaker. I would like, first off, to endorse the heartfelt tributes that have been made to James Brokenshire and send my deepest sympathy to his family.
I am grateful to Mr Speaker for granting this urgent question—
Ms Harman
To ask the Secretary of State for the Home Department to make a statement on sexual misconduct in the Metropolitan police and in the police generally.
Police, Crime, Sentencing and Courts Bill
Debate between Baroness Winterton of Doncaster and Baroness HarmanMonday 5th July 2021
(3 years, 4 months ago)
Commons ChamberRead Full debate Police, Crime, Sentencing and Courts Act 2022 View all Police, Crime, Sentencing and Courts Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Consideration of Bill Amendments as at 5 July 2021 - (5 Jul 2021)
Madam Deputy Speaker (Dame Rosie Winterton)
We come to group two. After I have called the right hon. and learned Member for Camberwell and Peckham (Ms Harman) to move new clause 3, there will be a four-minute limit on Back-Bench contributions.
New Clause 3
Restriction on evidence or questions about complainant's sexual history
‘(1) Section 41 of the Youth Justice and Criminal Evidence Act 1999 is amended as follows.
(2) In subsection (1)—
(a) starting in paragraph (b) omit “in cross examination, by or on behalf of any accused at the trial,”;
(b) at end insert “with anyone other than the defendant”.
(3) In subsection (2)—
(a) for “an accused” substitute “a party to the trial”;
(b) in paragraph (a) omit “or (5)”.
(4) For subsection (3) substitute—
“(3) This subsection applies if the evidence or question relates to a relevant issue in the case and that issue is not an issue of consent.”
(5) For subsection (5) substitute—
“(a) For the purposes of subsection (3) no evidence may be adduced or question asked unless the judge determines in accordance with the procedures in this subsection that the question or evidence has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.
(b) In determining that question the judge shall take into account—
(i) the interests of justice, including the right of the accused to make a full answer and defence;
(ii) the need to preserve the integrity of the trial process by removing from the fact-finding process any discriminatory belief or bias;
(iii) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury;
(iv) the potential threat to the complainant’s personal dignity and right to privacy;
(v) the complainant’s right to personal security and to the full protection and benefit of the law;
(vi) the provisions of the Victims Code;
and any other factor that the judge considers relevant.”
(6) In subsection (6), for “subsections (3) and (5)” substitute “subsection (3)”.’
This new clause excludes the admission in evidence of any sexual behaviour of the complainant with a third party, whether by the prosecution or the defence, to show consent, whilst leaving it admissible if it is relevant to any other issue in the case. It sets out the additional requirement that to be admitted the material must be more probative than prejudicial and sets out the considerations the judge must have in regard to considering that extra requirement.
Brought up, and read the First time.
Madam Deputy Speaker (Dame Rosie Winterton)
With this it will be convenient to consider the following: RTA Section 170(4A) Failing to stop and give particulars after accident involving actual or potential serious or fatal injury or to report accident On indictment 14 years Obligatory Obligatory 6-11
New clause 4—Definition of “issue of consent”—
‘(1) Section 42 of the Youth Justice and Criminal Evidence Act 1999 is amended as follows.
(2) For paragraph (b) substitute—
“(b) “issue of consent” means any issue where the complainant in fact consented to the conduct constituting the offence with which the defendant is charged and any issue where the accused reasonably believed that the complainant so consented;”’
This new clause re-defines “issue of consent” for the purposes of section 41, including in the definition the defendant’s reasonable belief in consent, and thus removing it as a reason for the inclusion of a complainant’s sexual history or behaviour.
New clause 5—Admission of evidence or questions about complainant’s sexual history—
‘(1) The Youth Justice and Criminal Evidence Act 1999 is amended as follows.
(2) After section 43 insert—
“43A In any trial or contested hearing to which section 41 of the Youth Justice and Criminal Evidence Act 1999 applies, if no pre-trial application in accordance with Part 36 of the Criminal Procedure Rules has been made, or if such application has been made and refused in whole or in part, no further application may be made during the course of the trial or before its commencement to call such evidence or ask such question, and no judge may allow such application or admit any such questions or evidence.”’
This new clause would have the effect that no section 41 evidence or questions could be admitted by a judge at trial unless there had been an application before trial in accordance with the practice directions; and the amendment would ban applications from being made immediately before or during the trial.
New clause 6—Complainant’s right of representation and appeal on an application to adduce evidence or questions on sexual conduct—
‘(1) The Youth Justice and Criminal Evidence Act 1999 is amended as follows.
(2) After section 43 insert—
“43A In any trial to which section 41 applies, where notice is given that there will be an application under Part 36 of the Criminal Procedure Rules for leave to ask questions or to adduce evidence as to any sexual behaviour of the complainant—
(1) The complainant may not be compelled to give evidence at any hearing on the application.
(2) The complainant will be entitled to be served with the application and to be legally represented (with the assistance of legal aid if financially eligible) as “a party” within the meaning of the Criminal Procedure Rules in responding in writing to the application and in presenting their case at any hearing on the application.
(3) If the application succeeds in whole or in part, the complainant will have a right to appeal for a rehearing of the application to the Court of Appeal on notice within 7 days of the judgement being delivered.
(4) On any such appeal, the Court of Appeal will rehear the application in full and may grant or refuse it in whole or in part.
(5) The Secretary of State may, by regulation, set out rules of procedure relating to any hearing or appeal under this section.”’
This new clause would give the complainant a right of representation, with legal aid if they are financially eligible, to oppose any application to admit section 41 material about them. This new clause would also give complainants a right of appeal to the Court of Appeal if the application is allowed in whole or in part. The new clause also provides that the complainant is not compellable as witness at the application.
New clause 7—Collection of and reporting to Parliament on data and information relating to proceedings involving rape and sexual assault—
‘(1) The Secretary of State shall collect and report to Parliament annually the following data and information—
(a) The time taken in every case of rape or sexual assault for the case to progress from complaint to charge, from charge to pre-trial plea and management hearing; and from then until trial.
(b) The number of applications to ask questions or adduce evidence of any sexual behaviour of the complainant under section 41 of the Youth Justice and Criminal Evidence Act 1999 (“the 1999 Act”) made in the Magistrates and Crown Courts of England and Wales, irrespective of whether a trial was subsequently held.
(c) The number of cases which involved questions on or evidence of any sexual behaviour of the complainant in all rape, sexual abuse and other trials or contested hearings in the Magistrates and Crown courts in England and Wales, irrespective of whether an application was made to admit such questions or evidence in advance of the trial or hearing.
(d) In cases to which section 41 of the 1999 Act applies—
(i) whether Part 36 of the Criminal Procedure Rules was followed in each application and if it was not, how it was not;
(ii) the questions proposed to be asked;
(iii) the evidence proposed to be called;
(iv) whether the prosecution opposed the application and if so the content of their representations;
(v) whether evidence was called to support or oppose the application;
(vi) whether the application was allowed in whole or in part and a copy of the judgement made on the application;
and
(vii) any other material which might assist in an assessment of the frequency, basis and nature of applications for the use of such questions or evidence and the likely impact on any parties to any trial and the trial outcome.
(2) The data and information to be collected under subsection (1) shall include—
(a) all the material from any pre-trial application;
(b) the questions in fact asked and the evidence in fact called about any sexual behaviour of the complainant in the trial;
(c) any application at the start or during the course of the trial to vary or alter any judgement given in any earlier application or any further application to admit such questions or evidence;
(d) whether any material not previously authorised was used in the trial;
(e) whether the prosecution objected; and
(f) any ruling made or action taken by the judge on the further conduct of the trial as a consequence of the admission of questions or evidence under section 41 of the 1999 Act.
(3) The data and information to be collected under this section shall be collected from the date of Royal Assent to this Bill.’
This new clause requires the Secretary of State to collect and report to Parliament data and information on trial delay and section 41 matters.
New clause 8—Training for relevant public officials in relation to the conduct of cases of serious sexual offences—
‘(1) The Secretary of State shall, on this Act coming into force, publish and implement a strategy to provide training on the investigation of rape and alleged rape complainants, and the admissibility and cross-examination of complainants on their sexual history to—
(a) the Crown Prosecution Service;
(b) Police Forces;
(c) the Judiciary; and
(d) such other public bodies as the Secretary of State considers appropriate.
(2) The Secretary of State shall ensure that any judge who is asked to hear a trial where the accused is charged with rape or any other serious sexual offence has attended and completed a training programme for such trials which has been accredited by the Judicial College.’
This new clause ensures that all criminal justice agencies shall be trained and that no judge can hear a sexual offence trial of any kind unless they have attended the Judicial College serious sexual offence course.
New clause 9—Requirement for a pre-sentence report when sentencing a primary carer—
‘(1) Section 30 of the Sentencing Act 2020 is amended as follows.
(2) After subsection (3) insert—
“(3A)A court must make inquiries to establish whether the offender is a primary carer for a child.
(3B) If the court establishes that the offender is a primary carer for a child, unless there are exceptional circumstances before sentencing the offender the court must obtain a pre-sentence report containing information to enable the court to make an assessment of the impact of a custodial sentence on the child.”
(3) After subsection (4) insert—
“(5) In this section—
(e) “child” means a person under the age of 18; and
(f) “primary carer” means a person who has primary or substantial care responsibilities for a child.”’
This new clause amends section 30 of the Sentencing Act 2020 to make clear the requirement for a sentencing judge to have a copy of a pre-sentence report, considering the impact of a custodial sentence on the dependent child, when sentencing a primary carer of a child.
New clause 10—Duty of the court to state how it has considered the consequences for the child when sentencing—
‘(1) Section 52 of the Sentencing Act 2020 is amended as follows.
(2) After subsection (9) insert—
“Offenders who are primary carers
(10) A court sentencing a primary carer for a child must state how the best interests of the child were considered in determining the sentence (including, if appropriate, consideration of the views of the child).
(11) A court sentencing a pregnant woman must state how the best interests of the baby were considered in determining the sentence.
(12) 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.”’
This new clause amends section 52 of the Sentencing Act 2020 to require a sentencing judge to state how the best interests of a child were considered when sentencing a primary carer of a dependent child.
New clause 11—Welfare of child to be a distinct consideration when sentencing a primary carer—
‘(1) After section 227 of the Sentencing Act 2020, insert—
“227A Restrictions on imposing imprisonment on a primary carer
(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.”’
This new clause would create a requirement for a sentencing judge to consider the impact of a custodial sentence on a child when sentencing a primary carer of a dependent child.
New clause 12—Welfare of child to be a distinct consideration when determining bail for a primary carer—
‘(1) Section 4 of the Bail Act 1976 is amended as follows.
(2) After subsection (9) insert—
“(10) Where a court determines whether to grant bail in criminal proceedings to a person to whom this section applies who is a primary carer for a child or pregnant, the court must—
(a) consider the impact of not granting bail on the child or unborn child; and
(b) presume (subject to victim impact or other relevant considerations) that it is in the best interests of the child or unborn child for bail to be granted.
(11) 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.”’
This new clause would impose a requirement for the judge to consider the impact of not granting bail on a child when determining, in criminal proceedings, whether to grant bail to a primary carer of a dependent child.
New clause 13—Data collection in relation to prisoners who are primary carers—
‘(1) The Secretary of State must collect and publish annual data identifying—
(a) how many prisoners are the primary carers of a child,
(b) how many children have a primary carer in custody, and
(c) the ages of those children.
(2) 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.’
This new clause would impose a requirement on the Secretary of State to collect and publish data on the number of prisoners who are the primary carers of a child and the number of children who have a primary carer in custody.
New clause 17—Maximum sentences for causing or allowing a child or vulnerable adult to suffer serious injury or death—
‘(1) Section 5 of the Domestic Violence, Crime and Victims Act 2004 is amended as follows—
(a) in subsection (7), for “a term not exceeding 14 years” substitute “life”, and
(b) in subsection (8), for “10” substitute “14”.
(2) Schedule 19 of the Sentencing Act 2020 is amended by the insertion of the following after paragraph 20—
“Domestic Violence, Crime and Victims Act 2004
20A An offence to which section 5(7) of the Domestic Violence, Crime and Victims Act 2004 applies.”’
This new clause seeks to increase sentencing levels under section 5 of the Domestic Violence Crime and Victims Act 2004 (causing or allowing a child or vulnerable adult to suffer serious injury or death) by raising the death offence to life imprisonment, and the “serious injury” offence to 14 years.
New clause 18—Custody for own protection or own welfare—
‘(1) The Bail Act 1976 is amended as follows.
(2) In Part 1 of Schedule 1 (Defendants accused or convicted of imprisonable offences) omit paragraph 3.
(3) In Part 1A of Schedule 1 (Defendants accused or convicted of imprisonable offences to which Part 1 does not apply) omit paragraph 5.
(4) In Part 2 of Schedule 1 (Defendants accused or convicted of non-imprisonable offences) omit paragraph 3.’
This new clause would repeal the power of the criminal courts to remand a defendant into custody for their own protection (or in the case of a child, for their own welfare) pending trial or sentence.
New clause 19—Justice impact assessment for Wales—
‘(1) Within six months of the passage of this Act, the Secretary of State must issue a justice impact assessment for any provision of this Act, or regulations made under this Act, which impacts on matters which are devolved to the Welsh Parliament / Senedd Cymru.
(2) The Secretary of State must, within one month of the date on which they are made, issue a justice impact assessment for any regulations made under this Act which are not included in the assessment required under subsection (1) which impact on matters which are devolved to the Welsh Parliament / Senedd Cymru.’
This new clause would require the Secretary of State to issue an assessment of the impact of the Bill on devolved policy and services in Wales within six months of it passing, and to issue such an assessment of any further changes to regulations under the Bill within one month of making them.
New clause 20—Failing to stop or report accidents involving actual or potential serious or fatal injury—
‘(1) After subsection 170(4) of the Road Traffic Act 1988, insert—
“(4A) A person who fails to comply with subsections 170(2) or 170(3) when he knew that the accident had caused serious or fatal personal injury, or where he ought reasonably to have realised that it might have done so, is guilty of an offence.”
(2) In Part 1 of Schedule 2 of the Road Traffic Offenders Act 1988 (prosecution and punishment of offences: offences under the Traffic Acts), after the entry relating to an offence under RTA subsection 170(4), insert the following—
(3) After subsection 34(3)(d) of the Road Traffic Offenders Act 1988, insert—
“(e) section 4A (failing to stop and give particulars after accident involving actual or potential serious or fatal injury or to report accident)”’.
This new clause creates a new offence of failing to stop or report accidents where the driver knew that the accident had caused serious or fatal injury, or where he ought reasonably to have realised that it might have done so, with a maximum sentence of 14 years custody.
New clause 21—Definition of “exceptional hardship”
‘In the Road Traffic Offenders Act 1988, after subsection 35(4), insert—
“(4A) (a) In subsection (4)(b) above, the hardship that would be caused by an offender’s disqualification should be regarded as exceptional if and only if it is significantly greater than the hardship that would arise for a large majority of other drivers if the same disqualification were imposed on them.
(b) In assessing whether the hardship arising from the offender’s disqualification would be exceptional, a court may take account of—
(i) any circumstances relating to the offender’s economic circumstances or location of residence that would make it exceptionally hard for him to access key services such as grocery shops and postal, banking and healthcare facilities,
(ii) any hardship that would be incurred by the offender’s family or others who are disabled and who depend on the offender to provide care for them, and
(iii) any other circumstance which it believes would make the hardship genuinely exceptional.”’
This new clause provides a definition of “exceptional hardship” for the purpose of RTOA ss35(4)(b). It requires that a court should only regard hardship as “exceptional” if it is significantly greater than the hardship that would arise for a large majority of other drivers if the same disqualification were imposed on them.
New clause 22—Special measures access for eligible witnesses—
‘(1) The Youth Justice and Criminal Evidence Act 1999 is amended as follows.
(2) In section 19(2), omit paragraphs (a) and (b) and insert—
“(a) inform the witness of the special measures which are available to them by virtue of this Act; and
(b) give a direction under this section providing for whichever measure or measures as the witness may decide they wish to be applied to apply to evidence given by the witness.
Provided that a direction under paragraph (b) shall ensure that the measure or measures provided for do not inhibit the evidence of the witness being effectively tested by a party to the proceedings.”
(3) Omit section 19(3).’
This new clause would mean that once witnesses are determined as eligible for special measures they will be informed of all provisions and able to decide which option best suits them, rather than relying on the court to decide which measures would best improve the quality of evidence.
New clause 25—Restriction on evidence or questions about mental health counselling or treatment records relating to complainant or witness—
‘(1) The Youth Justice and Criminal Evidence Act 1999 is amended as follows.
(2) After section 43 insert—
“43A Restriction on evidence or questions about mental health counselling or treatment records relating to complainant or witness
(1) If at a trial a person is charged with a sexual offence, then, except with the leave of the court—
(a) no evidence may be adduced, and
(b) no question may be asked in cross examination, by or on behalf of any accused at the trial, about any records made in relation to any mental health counselling or treatment which may have been undertaken by a complainant or witness.
(2) The records made include those made by—
(a) a counsellor,
(b) a therapist,
(c) an Independent Sexual Violence Adviser (ISVA), and
(d) any victim support services.
(3) The court may give leave in relation to any evidence or question only on an application made by or on behalf of a party to the trial, and may not give such leave unless it is satisfied that—
(a) the evidence or question relates to a relevant issue in the case which will include a specific instance (or specific instances) of alleged sexual behaviour on the part of the complainant,
(b) the evidence or question has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice, and
(c) a refusal of leave might have the result of rendering unsafe a conclusion of the jury or (as the case may be) the court on any relevant issue in the case.
(4) For the purposes of making a determination under paragraph (3)(b) the judge shall take into account—
(a) the interests of justice, including the right of the accused to make a full answer and defence;
(b) the need to preserve the integrity of the trial process by removing from the fact-finding process any discriminatory belief or bias;
(c) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury;
(d) the potential threat to the personal dignity and right to privacy of the complainant or witness;
(e) the complainant’s or witness’s right to personal security and to the full protection and benefit of the law;
(f) the provisions of the Victims Code; and
(g) any other factor that the judge considers relevant.
(5) Where this section applies in relation to a trial by virtue of the fact that one or more of a number of persons charged in the proceedings is or are charged with a sexual offence—
(a) it shall cease to apply in relation to the trial if the prosecutor decides not to proceed with the case against that person or those persons in respect of that charge; but
(b) it shall not cease to do so in the event of that person or those persons pleading guilty to, or being convicted of, that charge.
(6) Nothing in this section authorises any evidence to be adduced or any question to be asked which cannot be adduced or asked apart from this section.
(7) In relation to evidence or questions under this section, if no pre-trial application in accordance with Part 36 of the Criminal Procedure Rules has been made, or if such application has been made and refused in whole or in part, no further application may be made during the course of the trial or before its commencement to call such evidence or ask such question, and no judge may allow such application or admit any such questions or evidence.”’
This new clause would restrict evidence or questions about mental health counselling or treatment records relating to complainant or witness unless a defined threshold is met.
New clause 54—Equality Impact Analyses of provisions of this Act—
‘(1) The Secretary of State must review the equality impact of the provisions of this Act in accordance with this section and lay a report of that review before the House of Commons within six months of the passage of this Act.
(2) A review under this section must consider the impact of those provisions on—
(a) households at different levels of income,
(b) people with protected characteristics (within the meaning of the Equality Act 2010),
(c) the Government’s compliance with the public sector equality duty under section 149 of the Equality Act 2010, and
(d) equality in different parts of the United Kingdom and different regions of England.
(3) A review under this section must include a separate analysis of each section of the Act, and must also consider the cumulative impact of the Act as a whole.’
New clause 73—Unduly lenient sentences: time limit—
‘(1) The Criminal Justice Act 1988 is amended as follows.
(2) In Schedule 3, paragraph 1, after “within” leave out “28” and insert “56”.’
New clause 74—Reviews of sentencing: assaulting an emergency worker—
‘(1) Schedule 1 to the Criminal Justice Act 1988 (Reviews of Sentencing) Order 2006 (descriptions of cases to which Part IV of the Criminal Justice Act 1988 is to apply) is amended as follows.
(2) In paragraph 2, after sub-paragraph (i) insert—
“(ia) an offence under section 1 of the Assaults on Emergency Workers (Offences) Act 2018.’
New clause 75—No automatic early release for prisoners who assault prison staff whilst in jail—
‘(1) The Criminal Justice Act 2003 is amended as follows.
(2) In Section 244, after subsection (1A) insert—
“(1B) Subsection (1) does not apply if the prisoner has assaulted a member of prison staff whilst in prison and instead the prisoner must not be released until the end of his original sentence.’
New clause 76—Dangerous driving: increased penalties—
‘(1) Part 1 of Schedule 2 to the Road Traffic Offenders Act 1988 (prosecution and punishment of offences: offences under the Traffic Acts) is amended as follows.
(2) In the entry relating to section 2 of the Road Traffic Act 1988 (dangerous driving), in column (4) (punishment), under (b) for “2 years” substitute “5 years”.’
New clause 77—Limitation of use of fixed-term recalls—
‘(1) Section 255A of the Criminal Justice Act 2003 (Further release after recall: introductory) is amended as follows.
(2) After subsection 4, insert—
“(4A) A person is not suitable for automatic release if—
(a) he is an extended sentence prisoner or a specified offence prisoner;
(b) in a case where paragraph (a) does not apply, he was recalled under section 254 before the normal entitlement date (having been released before that date under section 246 or 248); or
(c) in a case where neither of the preceding paragraphs applies, he has, during the same term of imprisonment, already been released under section 255B(1)(b) or (2) or section 255C(2).”’
New clause 78—Open prisons: murderers—
‘No prisoner serving a sentence for murder can be moved to a Category D prison.’
New clause 79—Resettlement licence: murderers—
‘No prisoner serving a sentence for murder will be eligible for resettlement licence.’
New clause 80—Open prisons: serious offenders—
‘No prisoner serving a sentence for an indictable only offence can be moved to a Category D prison.’
New clause 81—Open prisons: deportees—
‘No prisoner serving a sentence for which he is liable for deportation can be moved to a Category D prison.’
New clause 82—Resettlement licence: deportees—
‘No prisoner serving a sentence for which he is liable for deportation can be eligible for resettlement licence.’
New clause 83—No difference in sentencing between using a knife in a murder in a home compared to taking a knife to murder someone—
‘(1) The Sentencing Act 2020 is amended as follows.
(2) In Schedule 21 (Determination of minimum term in relation to mandatory life sentence for murder etc), after sub-paragraph 4(2), insert—
“(3) Sub-paragraph (2) above applies where the knife or weapon is taken to the scene from anywhere within the same premises.”’
New clause 86—Review of domestic homicide—
‘(1) Within 18 months of the commencement of this Act, the Secretary of State must commission a review and publish a report on the effectiveness of current legislation and sentencing policy surrounding domestic abuse, with a particular view to making policy recommendations to increase sentences for domestic homicide, and reduce the gap in sentence length between domestic homicide and other homicides.
(2) A review under subsection (1) must be conducted by a person who meets the criteria for qualification for appointment to the Supreme Court, as set out in section 25 of the Constitutional Reform Act 2005.
(3) A review under subsection (1) must consider—
(a) trends in the incidences and types of domestic abuse, with a focus on domestic homicide,
(b) sentencing policy as it applies to domestic abuse, with a focus on domestic homicide,
(c) current sentencing guidelines as they relate to domestic abuse, with a focus on domestic homicide, and
(d) the creation of new defences and/or mitigating circumstances to protect victims of domestic abuse who commit offences as a consequence of that abuse.
(4) For the purposes of subsection (1) domestic homicide is to be defined as circumstances in which the death of a person aged 16 or over has, or appears to have, resulted from violence, abuse or neglect by a person to whom they were related or with whom they were, or had been, in an intimate personal relationship, or a member of the same household as themselves.
(5) The Secretary of State must lay a copy of the report before Parliament.
(6) A Minister of the Crown must, not later than 3 months after the report has been laid before Parliament, make a motion in the House of Commons in relation to the report.’
This new clause compels the Government to commission a review and publish a report on the effectiveness of current legislation and sentencing policy surrounding domestic abuse, with a particular focus on increasing sentences for domestic homicide. The review would also consider the creation of new protections to assist victims of domestic abuse who commit domestic homicide.
New clause 87—Maximum sentence for publishing the identity of a sexual offences complainant—
‘(1) Section 5 of the Sexual Offences (Amendment) Act 1992 is amended as follows.
(2) In subsection (1), leave out “and liable on summary conviction to a fine not exceeding level 5 on the standard scale”.
(3) After subsection (1), insert the following subsection—
“(1A) A person guilty of an offence under this section is liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine not exceeding level 5 on the standard scale, or both, or
(b) on summary conviction, to imprisonment for a term not exceeding twelve months, or a fine not exceeding level 5 on the standard scale, or both.”’
This new clause would give courts the power to hand down custodial sentences of up to 2 years to those convicted of naming a sexual offences complainant.
New clause 88—Law Commission consideration of the use of complainants’ sexual history in rape trials—
‘The Secretary of State must seek advice and information from the Law Commission under section (3)(1)(e) of the Law Commissions Act 1965 with proposals for the reform or amendment of the law relating to the use of complainants’ sexual history in rape trials.’
This new clause would compel the Government to seek a Law Commission review on the use of complainants’ sexual history in rape trials.
New clause 89—Minimum sentence for an offence under section 1 of the Sexual Offences Act 2003—
‘(1) This section applies where—
(a) an individual is convicted of an offence under section 1 of the Sexual Offences Act 2003, and
(b) the offence was committed after the commencement of this section and at a time when the individual was aged 18 or over.
(2) The court shall impose an appropriate custodial sentence (or order for detention) for a term of at least the required minimum term (with or without a fine) unless the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify its not doing so.
(3) In this section “appropriate custodial sentence (or order for detention)” means—
(a) in the case of an offender who is aged 18 or over when convicted, a sentence of imprisonment, and
(b) in the case of an offender who is aged under 18 at that time, a sentence of detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000.
(4) In this section “the required minimum term” means seven years.’
This new clause creates a statutory minimum sentence for rape of 7 years. A court must impose at least the statutory minimum unless it is of the opinion there are exceptional circumstances relating to the offence or to the offender which justify not doing so.
New clause 92—Sentencing escalator—
‘(1) Any person convicted of the same criminal offence on a second or subsequent occasion must receive—
(a) a longer custodial sentence than his longest previous custodial sentence for the same offence if a custodial sentence has previously been given; or
(b) a more severe sentence than his highest previous non-custodial sentence for the same offence if a custodial sentence has not already been given for a previous offence unless the court is of the opinion that there are exceptional circumstances which—
(i) relate to the offence or to the offender, and
(ii) justify not doing so.
(2) Where the sentencing options available for the current offence do not permit the court to increase the sentence under the provisions of subsection (1), the court must impose the maximum sentence available to it, unless the court is of the opinion that there are exceptional circumstances which—
(a) relate to the offence or to the offender, and
(b) justify not doing so.
(3) In determining a sentence under subsection (1), a court is not bound by Section 59 (Sentencing guidelines: general duty of court) or Section 60 (Sentencing guidelines: determination of sentence) of the Sentencing Act 2020.’
New clause 93—Effect of remand on bail on time served in prison (amendment of Criminal Justice Act 2003)
‘(1) The Criminal Justice Act 2003 is amended as follows.
(2) In subsection (1B)(c) of section 237 (Meaning of “fixed-term prisoner” etc), leave out “or section 240A”.
(3) In the italic heading before section 240 (Crediting of periods of remand in custody: terms of imprisonment and detention), after “custody”, leave out “or on bail subject to certain types of condition”.
(4) Omit section 240A (Time remanded on bail to count towards time served: terms of imprisonment and detention).’
This new clause, together with NC94 would remove tagged curfew from time on remand on bail which is deducted from time served in prison.
New clause 94—Effect of remand on bail time served in prison (amendment of Sentencing Act 2020—
‘Sections 325 (Time on bail under certain conditions: declaration by court) and 326 Section 325: interpretation) of the Sentencing Act 2020 are omitted.’
This new clause, together with NC93 would remove tagged curfew from time on remand on bail which is deducted from time served in prison.
New clause 95—Magistrates’ sentencing powers—
‘The following statutory provisions shall, notwithstanding any commencement provision in any Act, come into force—
(1) Section 154 of the Criminal Justice Act 2003 (General limit on magistrates’ court’s power to impose imprisonment).
(2) Section 282 of the Criminal Justice Act 2003 (Increase in maximum term that may be imposed on summary conviction of offence triable either way).
(3) Paragraphs 24 and 25 of Part 5 of Schedule 22 of the Sentencing Act 2020 (Increase in magistrates’ court‘s power to impose imprisonment).’
This new clause would bring into force provisions which would increase magistrates’ sentencing powers from a maximum of 6 to a maximum of 12 months for one offence.
New clause 96—Power of police to stop vehicles—
‘(1) Section 163 of the Road Traffic Act 1988 is amended as follows.
(2) In subsection (1), after “vehicle” in the second place in which it occurs, insert “, and switch off the engine,”.’
This new clause to the Road Traffic Act 1988 would require a person to switch off their engine after being stopped by a constable in uniform or a traffic officer, and make it an offence not to do so.
New clause 97—Video recorded cross-examination or re-examination of complainants in respect of sexual offences and modern slavery offences—
‘(1) Section 28 of the Youth Justice and Criminal Evidence Act 1999 comes into force in relation to proceedings to which subsection (2) applies on the day on which this Act is passed.
(2) This subsection applies where a witness is eligible for assistance by virtue of section 17(4) of the Youth Justice and Criminal Evidence Act 1999 (complainants in respect of a sexual offence or modern slavery offence who are witnesses in proceedings relating to that offence, or that offence and any other offences).
(3) This section has effect notwithstanding section 68(3) of the Youth Justice and Criminal Evidence Act 1999.’
This new clause would bring section 28 of the Youth Justice and Criminal Evidence Act 1999, which provides for the cross-examination of vulnerable witnesses to be recorded rather than undertaken in court, fully into force for victims of sexual offences and modern slavery offences.
Amendment 50, in clause 102, page 87, line 41, at end insert—
“(bb) the abduction, sexual assault, and murder of a person”.
This amendment would ensure those found guilty of abduction, sexual assault, and murder receive a Whole Life Order as a starting sentence.
Amendment 48, in clause 110, page 99, line 41, at beginning insert—
‘(1) In subsection (3) of section 239 of the Criminal Justice Act 2003 (the Parole Board), after 3(b) insert—
“(c) the views of the victim or victims of the crime to which the case relates”’.
This amendment would amend the Criminal Justice Act 2003 to ensure victims/survivors are consulted in parole decisions which will affect them.
Amendment 49, page 99, line 41, at beginning insert—
‘(1) In subsection (4) of section 239 of the Criminal Justice Act 2003 (the Parole Board), at end insert “, including the views of the victim or victims of the crime to which the case relates.”’
This amendment would amend the Criminal Justice Act 2003 to ensure victims/survivors are consulted in parole decisions which will affect them.
Amendment 63, page 127, line 33, leave out clause 139.
Amendment 122, in clause 139, page 127, line 43, at end insert—
“(8) A secure 16 to 19 Academy will be subject to annual inspection by—
(a) Ofsted;
(b) Her Majesty’s Inspectorate of Prisons; and
(c) Care Quality Commission.”
This amendment would make secure 16 to 19 academies subject to annual inspection by Ofsted, Her Majesty’s Inspectorate of Prisons, and the Care Quality Commission.
Amendment 123, page 128, line 25, at the end insert—
“(5) The Secretary of State must, within six months of this Act coming into force, prepare and publish a report on the progress made towards opening the first 16 to 19 academies and must lay a copy before Parliament.
(6) A Minister of the Crown must, not later than four weeks after the report required by subsection (5) has been laid before Parliament, make a motion in the House of Commons in relation to the report.
(7) The Secretary of State must, within one year of the opening of the first 16 to 19 academy, prepare and publish an impact assessment on the effectiveness of 16 to 19 academies and must lay a copy before Parliament.
(8) A Minister of the Crown must, not later than four weeks after the impact assessment required by subsection (7) has been laid before Parliament, make a motion in the House of Commons in relation to the impact assessment.”
This amendment would ensure the Secretary of State lay a report and update Parliament on progress made towards opening secure academy facilities and lay an impact assessment before Parliament and provide a debate on the impact assessment.
Amendment 124, in clause 169, page 191, line 37, at end insert—
“(4) The Secretary of State may exercise the power in section 176(1) so as to bring this section (and part 3 of Schedule 19) into force only if the condition in subsection (5) is met.
(5) The condition in this subsection is that a review of the impact of the expansion of audio and video links in criminal proceedings has been conducted in accordance with subsection (6).
(6) The review mentioned in subsection (5) must—
(a) collect evidence of the impact of live audio and video links on—
(i) sentencing and remand decisions,
(ii) the effective participation of defendants,
(iii) the experience of victims and witnesses,
(iv) the cost to the wider justice system, including costs borne by the police and prison systems; and
(b) be undertaken by a person who is independent of the Secretary of State.
(7) The review mentioned in subsection (5) may also consider any other matter which the person conducting the review considers relevant.”
This amendment would ensure that the expansion in the use of audio and video links will not be undertaken until an independent review of its impact has been undertaken.
New clause 14—Offence of buying a pet for cash etc—
‘(1) A person “P” must not pay for a pet except—
(a) by a cheque which under section 81A of the Bills of Exchange Act 1882 is not transferable, or
(b) by an electronic transfer of funds (authorised by credit or debit card or otherwise).
(2) The Secretary of State may by order amend subsection (1) to permit other methods of payment.
(3) In this section paying includes paying in kind (with goods or services).
(4) If P pays for a pet in breach of subsection (1), P is guilty of an offence.
(5) If P is guilty of an offence under this section, P is liable on summary conviction to a fine not exceeding level 5 on the standard scale.
(6) For the purposes of this section, “pet” means and animal which—
(a) provides companionship to any human being,
(b) provides assistance to any human being, or
(c) provides assistance to any human being in the course of their work.’
New clause 15—Offence of failing to scan a microchip—
‘(1) When a relevant animal is presented for a consultation with a veterinary surgeon (or registered veterinary nurse), the veterinary surgeon (or veterinary nurse) must—
(a) scan the microchip of the relevant animal,
(b) check that the microchip number is registered on a database by a database operator which meets current conditions set out in law,
(c) check that the person accompanying the relevant animal is either the registered keeper of the relevant animal or has, to the satisfaction of the veterinary surgeon (or veterinary nurse), the permission of the registered keeper of the relevant animal to accompany that animal, and
(d) if the condition in paragraph (c) is not met, report to the police the fact that the relevant animal is not accompanied by the registered keeper or a person authorised by the registered keeper.
(2) For the purposes of subsection (1), a “relevant animal” means an animal which is required by law to be microchipped.
(3) If a veterinary surgeon (or veterinary nurse) is in breach of subsection (1), they are guilty of an offence.
(4) If a veterinary surgeon (or veterinary nurse) is guilty of an offence under this section, they are liable on summary conviction to a fine not exceeding level 4 on the standard scale.’
New clause 16—Offence of pet theft—
‘(1) The Animal Welfare Act 2006 is amended as follows.
(2) After section 2 (“protected animal”) insert—
“2A Definition of pet
A protected animal is a “pet” for the purposes of this Act if it—
(a) provides companionship to any human being,
(b) provides assistance to any human being, or
(c) provides assistance to any human being in the course of their work.”
(3) After section 8 (fighting etc.) insert—
“8A Pet theft
A person commits an offence if they dishonestly appropriate a pet belonging to another person.”
(4) In section 32 (imprisonment or fine) before subsection (1) insert—
“(A1) A person guilty of an offence under section 8A (pet theft) shall be liable—
(a) on summary conviction to imprisonment for a term not exceeding 51 weeks, or a fine, or both;
(b) on conviction on indictment to imprisonment for a term not exceeding 2 years, or to a fine, or both.
(A2) When the court is considering for the purposes of sentencing the seriousness of an offence under section 8A it must consider the following as aggravating factors (that is to say, a factor that increases the seriousness of the offence)—
(a) the theft caused fear, alarm or distress to the pet, the owner of the pet or another person associated with the pet;
(b) the theft was for the purposes of commercial gain.”
(5) In section 34(10) (disqualification) after “8,” insert “8A,”.’
New clause 98—Offence of pet theft—
‘(1) The Animal Welfare Act 2006 is amended as follows.
(2) After section 2 (“protected animal”) insert—
“(2A) Definition of pet A protected animal is a “pet” for the purposes of this Act if it provides companionship or assistance to any human being.”
(3) After section 8 (fighting etc.) insert—
“8A Pet theft
A person commits an offence if they dishonestly appropriate a pet belonging to another person with the intention of permanently depriving that other person of it.”
(4) In section 32 (imprisonment or fine) before subsection (1) insert—
“(A1) A person guilty of an offence under section 8A (pet theft) shall be
liable—
(a) on summary conviction to imprisonment for a term not exceeding 51 weeks, or a fine, or to both;
(b) on conviction on indictment to imprisonment for a term not exceeding 4 years, or to a fine, or to both.
(A2) When the court is considering for the purposes of sentencing the seriousness of an offence under section 8A it must consider the following as aggravating factors (that is to say, a factor that increases the seriousness of the offence)—
(a) the theft caused fear, alarm or distress to the pet, the owner or the pet or another person associated with the pet;
(b) the theft was for the purposes of commercial gain.”
(5) In section 34(10) (disqualification) after “8,” insert “8A,”.’
New clause 99—Offence of pet theft (Scotland)—
‘(1) The Animal Health and Welfare (Scotland) Act 2006 is amended as follows.
(2) After section 17 (protected animals) insert—
“17A Definition of pet
A protected animal is a “pet” for the purposes of this Act if it provides companionship or assistance to any human being.”
(3) After section 23 (animal fights) insert—
“23A Pet theft
A person commits an offence if they dishonestly appropriate a pet belonging to another person with the intention of permanently depriving that other person of it.”
(4) In section 40 (disqualification orders) after subsection (13)(b) insert—
“(ba) an offence under section 23A,”.
(5) In section 46 (penalties for offences) after subsection (1) insert—
“(1A) A person guilty of an offence under section 23A (pet theft) shall be liable—
(a) on summary conviction to imprisonment for a term not exceeding 51 weeks, or a fine, or to both;
(b) on conviction on indictment to imprisonment for a term not exceeding 4 years, or to a fine, or to both.
(1B) When the court is considering for the purposes of sentencing the seriousness of an offence under section 23A it must consider the following as aggravating factors (that is to say, a factor that increases the seriousness of the offence)—
(a) that theft caused fear, alarm or distress to the pet, the owner or the pet or another person associated with the pet;
(b) the theft was for the purposes of commercial gain.”
(6) In Schedule 1 (powers of inspectors and constables for Part 2) after paragraph 4(5)(a) insert—
“(aa) an offence under section 23A,”.’
New clause 100—Offence of pet theft: consequential amendments—
‘(1) The Police and Criminal Evidence Act is amended as follows.
(2) In section 17(1)(c)(v) (entry for purposes of arrest, etc in connection with offences relating to the prevention of harm to animals), for “and 8(1) and (2)” substitute “8(1) and (2) and 8A”.’
New clause 30—Voyeurism: breastfeeding—
‘(1) Section 67A of the Sexual Offences Act 2003 (Voyeurism: additional offences) is amended as set out in subsection (2).
(2) After subsection (2), insert—
“(2A) A person (A) commits an offence if—
(a) A records an image of another person (B) while B is breastfeeding;
(b) A does so with the intention that A or another person (C) will look at the image for a purpose mentioned in subsection (3), and
(c) A does so—
(i) without B’s consent, and
(ii) without reasonably believing that B consents.”’
Ms Harman
New clause 3 would deal with a problem that the Government have acknowledged: that on the question of rape, the justice system lets women down and lets men off the hook. There are many problems that contribute to that, but one that the Government have rightly identified is that the process focuses on the complainant rather than on the defendant. The investigation becomes an investigation of the complainant—her mobile phone, what she was doing, her attitudes—and not of the suspect. The trial becomes the trial of the complainant, not of the defendant, in one very material way: the use by the defendant of the complainant’s previous sexual history by bringing it into evidence.
It has been acknowledged since as long ago as 1999 that the complainant’s previous sexual history is not the issue, and it is wrong for the defendant to try to use it to deter her from supporting a prosecution for fear that all her dirty washing will be washed in public, in open court, or that it will undermine her standing and credibility in the eyes of the jury. That was supposed to be outlawed in 1999, but it has become clear that a loophole was left when we changed the law.
In a third of all rape cases now, one way or another, the defendant brings into court the complainant’s previous sexual history. When the Victims’ Commissioner was a police and crime commissioner, she conducted research that showed that in one third of rape trials observed, the previous sexual history of the complainant was brought into evidence. That research is backed up by work done by the Criminal Bar Association.
The Victims’ Commissioner gives the example of a complainant who had her parents in court to support her. They did not know that she had had an abortion, but the defendant brought that into evidence in order to undermine her and throw off her ability to give her evidence—there were her parents, sitting in court, and they did not even know that she had had an abortion. Another report was of a case in which the jury were told, “This is a woman who has had adulterous affairs,” thereby trying to undermine her. Of course, that is not relevant to the issue of whether or not a rape has been committed, so we need to tighten up the law.
I have drafted a perfectly good, watertight clause to tighten up the law so that where the question of previous sexual history is relevant, especially if it is with the same partner in respect of whom the rape is alleged, it is allowed in evidence with the permission of the judge, but where it is not relevant, it is not. However, our Front Bench and the Government in their rape review have said that they are minded to send it to the Law Commission to look at. I would have preferred the Government to legislate in the Bill, which is after all the Police, Crime, Sentencing and Courts Bill, but they have decided not to do that; they say that they will refer to the Law Commission the whole question of the focus on the complainant, so I make two requests in that respect.
First, I think that the Law Commission should sit with an independent reference group. I have a great deal of respect for the Law Commission, but quite frankly we cannot leave it to get on with it on its own. We need an expert, independent reference group that is steeped in understanding of the issue and that can help the Law Commission. I suggest that Rape Crisis England & Wales should be on that group, and so should the Victims’ Commissioner.
My second request is that there should be a time limit on the Law Commission’s work. The Law Commission goes into things very deeply, but we do not want this to go on and on for years—it has been a problem for years, so we do not want it to go into the long grass with a never-ending Law Commission investigation. We want the findings to be ready for when the Government are thinking of bringing forward their victims Bill, which they will consult on shortly and which arises out of the violence against women and girls consultation. If we are not going to accept this today, and the Government are not, let us have the Law Commission looking at it, with an independent reference group and with a time limit. Then, the Government will have done more than just apologise to rape victims for justice not being done; they will make sure that in future justice is done.
Madam Deputy Speaker (Dame Rosie Winterton)
We now go to the Chair of the Justice Committee, Sir Robert Neill, and the four-minute time limit comes into force for Back Benchers at this point.