Criminal Justice Bill

Alex Cunningham Excerpts

2nd reading
Tuesday 28th November 2023 Commons Chamber

[Alex Cunningham (Stockton North) (Lab)]

Over the past 13 years, our criminal justice system—once the envy of the world—has crumbled as a consequence of Tory mismanagement, but I pay tribute to the police and the court and probation staff who work hard in such difficult circumstances. Victims in our country are left traumatised, waiting years for justice only to be let down again; trials are delayed for years on end and victims pay the price, with record numbers withdrawing from their cases. The Crown court backlog now stands at a record high of almost 65,000 cases. There is a crisis in prison capacity, to the point where convicted criminals are having to be let out early or are even not being sentenced in the first place, despite the Government’s fantasy plans to send prisoners aboard. The Home Secretary talks about powers, but can the Minister tell us what discussions with credible partner countries have taken place to make that fantasy a reality?

Simply put, this Conservative Government have failed in the first duty of Government: to keep its citizens safe. This Bill is further evidence of that continuous failure, and while it contains some measures that we on the Labour Benches welcome, it is the absences that are most glaring. The Bill contains no assurance at all that the existing systems in our country are ready to cope with the many changes it will introduce, as the right hon. Member for Witham (Priti Patel) recognised in her speech.

Time and again, this Government have failed to deliver the prison places we need. They have once again pushed back their deadline for delivering all 20,000 places, this time shifting their own target from 2025 to 2030. According to the most recent debate, only 8,200 places are due to be delivered by 2025, a shortfall of nearly 60%. With 10 Justice Secretaries and eight Home Secretaries in 10 years, this Government have focused on fighting each other instead of fighting for justice, and it is the British people who have paid the price. There have been repeated urgent warnings going back years: the 2020 prison population projections predicted a significant rise to 98,700 by September 2026, and the National Audit Office also warned in 2020 that

“demand for prison places could exceed supply between October 2022 and June 2023.”

After that warning from the NAO, the Government introduced a number of measures through the Police, Crime, Sentencing and Courts Act 2022 that added even more pressure to the capacity crisis. I was the shadow Minister on the Public Bill Committee at that time, and I raised my concern with the Minister, the right hon. Member for Croydon South (Chris Philp)—he is just taking his seat—who is now the Policing Minister. If the House will indulge me a little as I quote myself, in Committee I put it to the Minister:

“The Opposition would welcome further information from him about the impact on the prison system… The impact is to be felt very shortly indeed, and at a time when our prison services are recovering from the exceptional operational difficulties of the pandemic… Given all the additional prisoners that the system will have to cope with in not just seven or eight years’ time but as early as next year”—

this was last year—

“how will the Government ensure that our prisons do not become even more overcrowded and unsafe?”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 8 June 2021; c. 422-3.]

So there it is: we were raising serious concerns, but Ministers fobbed everyone off with the assurances that all would be well. However, we know that the building programme is now well behind and our prisons are absolutely stuffed. It is no way to run a Government.

As the Prison Reform Trust has said:

“This lack of strategic approach means that the prison service has been forced to operate in an almost perpetual state of crisis. To cope, it has pursued short-term expediency over effective long-term planning. This has included a reprieve of prison accommodation which should have been decommissioned decades ago; the use of police cells; the rapid construction of temporary cells”—

and—

“a staff recruitment scheme working flat out to keep officer numbers stable”.

Indeed, it is only now that prisons are completely at full capacity that we have seen any sort of acknowledgement from the Government, and then only out of sheer necessity, not because they have some sort of new commitment to prison reform.

The best the Government can do is a series of half-baked ideas that do nothing to address the very serious and immediate issue of convicted criminals who should be in prison being out on our streets instead because there are not enough cells to put them in. I know most of those ideas are contained in the Sentencing Bill, but as we have heard, this Bill contains the provisions relating to the transfer of prisoners to foreign prisons. However, these provisions will make absolutely no impact on the current crisis because we do not have a deal in place with another country. It is nothing more than gesture politics.

Reducing demand on the prison system is also dependent on a robust probation service that can supervise and work with probationers to reduce crime, but there is a capacity crisis there too. Probation delivery has been seriously undermined by the failed structural reforms of this Conservative Government. The disastrous transforming rehabilitation reforms have left probation, in the words of the Public Accounts Committee,

“underfunded, fragile and lacking the confidence of the courts.”

The probation inspectorate has found

“a critical lack of frontline staff”

that has led to “excessive caseloads”. Recent research has found that less than half of probation practitioners believe they have a manageable workload. The probation service needs ambitious and transformative support from Government, but this Bill is yet another missed opportunity. While the extension of polygraph conditions and the changes to multi-agency public protection arrangements are welcome, it is an insult that these are all that is on offer from a Government who have driven probation into the ground.

As my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper) said in her opening speech, there are a number of measures in the Bill that we actually support. First, I would like to refer to the speech by the hon. Member for Chatham and Aylesford (Tracey Crouch), who felt the need to be blunt with her own colleagues when addressing the outdated Vagrancy Act. She is right that aggressive rough sleepers need support, and that issuing prevention orders does nothing to address the underlying problem.

We back the powers to compel attendance by offenders at sentencing hearings, and I pay tribute to Farah Naz, Cheryl Korbel, Ayse Hussein and Jebina Islam for their tireless campaigning on this issue. However, it will be no surprise to the Government that we support this measure, since we have been calling for new laws to be introduced on this since April last year.

Let me give hon. Members a preview of another request that we similarly invite the Government to borrow from us. We would like to see the Bill amended so that offenders who have sexually harmed children and are sent to prison as a result lose the ability to control their own children from behind bars. This is a long overdue measure that will ensure all children are safe from these dangerous predators, including their own parents.

We have had a good debate, and before concluding I would like to refer to some of the other speeches made by our colleagues. I was pleased to see my hon. Friend the Member for Rotherham (Sarah Champion) celebrating today, and I welcome the fact that her long campaign to stop sex offenders changing their names has come to fruition. She also went on to address all manner of other things including action on the sharing of explicit images.

My right hon. Friend the Member for Kingston upon Hull North (Dame Diana Johnson), Chair of the Home Affairs Committee, spoke of a campaign for a specific offence of spiking. She spoke of her Committee reports on policing and the work needed to build trust within the community, and I am pleased to see that she has the cross-party support she wants.

The right hon. Member for Basingstoke (Dame Maria Miller) said too many statistics had been bandied about but then went on to give some of her own—but she claimed they were facts rather than statistics. Yes, the Government might have gone some way towards replacing the police that they had cut over all those years, but it is the job they are doing that matters and we need more of our police out on the streets.

My hon. Friend the Member for Walthamstow (Stella Creasy) talked about the epidemic of knife crime in our community and the need for so much to be done, and the need for a public health approach and prevention as well. My hon. Friend the Member for Vauxhall (Florence Eshalomi) talked about the proposals for offenders to face their sentencing in court but rightly questioned how that would work. She joined in the concern about rough sleepers and made the point that they are more likely to be a victim of crime than to commit crime. And we would of course all expect a long and comprehensive speech from my hon. Friend the Member for Hackney South and Shoreditch (Dame Meg Hillier), covering everything from policing by consent to misconduct and shop crime to fraud.

In this Bill, and indeed in the Sentencing Bill, there are a number of clauses that will lead to more people being imprisoned or being imprisoned for longer and we support many of them. However, it beggars belief that such proposals are put forward without any certainty whatsoever that the Government will be able to actually provide the prison places needed. It is no good posturing on law and order when the criminal justice system is crumbling as a result of 13 years of mismanagement by this Conservative Government. This Bill is yet another failure of this Government’s record on justice, but we will work with Ministers to improve it where we can.

Criminal Justice Bill (Third sitting)

Alex Cunningham Excerpts

Committee stage
Thursday 14th December 2023 Public Bill Committees

[Stephen Metcalfe]

Q That is fine. You said that the measures in the Bill are welcome. Are there any other measures that you would have liked to see in it that would help to tackle knife crime? I realise that it needs a holistic approach and that you need to work with others, but we can only give you the powers.

Nick Smart: The powers on sale and manufacture are welcome in addressing those who use social media such as Snapchat to sell knives to groups. The prohibited knives in a public place distinction is welcome. We have tried for some time to do that. For example, you have to prove three different elements to prove that something is a zombie knife, but now there is a provision in the Bill. I guess an aggravating factor that might be linked to the sentencing guidance is having that prohibited knife in your possession. Again, taking that into account in a court of law is welcome. The set of provisions around knife crime is very welcome.

[Alex Cunningham (Stockton North) (Lab)]

Q We have plenty of time, so I would like to read you a quote. In the first evidence session on Tuesday, I asked Nicole Jacobs, the Domestic Abuse Commissioner for England and Wales, what we could build on in the Bill. She said:

“Police-perpetrated domestic abuse related issues—and that means three key things to me. One is being more proactive about removing warrant cards if someone is under investigation for crimes relating to violence against women and girls or domestic abuse. The second is the specified offences that I believe should be listed that would constitute gross misconduct; again, I think they should be defined as domestic abuse, sexual harassment, assault and violence, so-called honour-based abuse, and stalking. The third is stronger provisions in relation to police vetting—requiring that every five years, and ensuring that if there is a change in force, police vetting takes place. Tightening up those provisions is not currently in the Bill and I think it should be.”––[Official Report, Criminal Justice Public Bill Committee, 12 December 2023; c. 24, Q55.]

Do you agree?

Nick Smart: If we take the last point first, vetting more frequently during an officer’s service is welcome, and if they change force, entirely appropriate. We agree with that.

On gross misconduct, if you permit me, I have some data to share. We are talking about not just domestic-based issues, but superintendents served gross misconduct papers in the past few years for various things. In 2018-19, 19 of our members were served and two sacked; in 2019-20, 19 were served and four sacked; in ’20-21, nine gross misconducts, two sacked; and in’21-22, 12 with one sacked.

What that shows about gross misconduct is that roughly 80% of officers who are served with gross misconduct papers have NFA—no further action—taken against them. We suggest looking at cases on a case-by-case basis and, if it involves serious wrongdoing, that should be a matter for the appropriate authority to look at a severity assessment and to make that assessment straightaway. We believe we find that a quarter of our professional standards departments go to gross misconduct almost immediately, and if 80% to 85% of officers have no further action taken when they are given those gross misconduct papers, that indicates to us that the severity assessment is wrong in the first place. If there is wrongdoing and it is clear, however, then gross misconduct papers should be served.

We would say, again, that at the merest hint of a suggestion, police professional standards departments serve a gross misconduct, but we think that there should be more of an investigation to establish the facts before gross misconduct papers are served. But where there is a clear chain of evidence that relates to an individual and wrongdoing, it is entirely appropriate, and we support gross misconduct papers being served.

[Alex Cunningham]

Q That is helpful. Is there anything that the Bill Committee can do to improve this piece of legislation to assist police forces across the country in dealing with such issues?

Nick Smart: I think that the way in which we as a service approach gross misconduct could do with a refresh. We have discussed that as a Police Superintendents’ Association, because our colleagues are usually the heads of professional standards departments making those assessments. Culturally, I think we go in low, so it is easy to give somebody a gross misconduct paper, whereas some work with the College of Policing to refresh how we approach that might be welcome, so that gross misconduct is served appropriately to the right individuals and we do not clutter professional standards departments with investigations that are going nowhere ultimately.

[Alex Cunningham]

That is helpful, thank you.

[The Chair]

Q We have a minute or two left. Do you want to share with the Committee anything you have not been asked about, but think would be helpful?

Nick Smart: If I may, there is one item—the powers of entry—which I think you alluded to. An issue that we looked at was that of immediacy. Section 18 of the Police and Criminal Evidence Act 1984 allows the police to search after arrest, and that requires an inspector’s authority. In certain circumstances, if the inspector is not available or there is a policing need, the constable can go in and get retrospective authority.

In the circumstances outlined in the Bill’s powers of entry, nothing in there regards that immediacy. If the officer at the time needs to go in to recover the property but cannot get hold of the inspector—for example, if the inspector is in custody dealing with a review, or they are dealing with a complaint or a critical incident, and because they need to review what is going on and then give that authority—it would be helpful to have that provision in so that the officer can seek that respective authority from the inspector as per section 18 of PACE. The precedent is there, but a provision would tackle immediacy—

--- Later in debate ---

[The Chair]

We now welcome Mark Fairhurst. Would you like to introduce yourself to start with?

Mark Fairhurst: Sure. I am Mark Fairhurst, the national chair of the Prison Officers Association. I am also a serving prison officer, and have been since 1992.

[Alex Cunningham]

Q Good afternoon, Mark. Thank you for giving up your time for us this afternoon. The stresses and strains within our prisons are well documented. Recent legislation has added to them with an increased demand for prison places. For the record, could you outline what is happening in our prison system that has led to the Government coming forward with the proposal to send prisoners abroad?

Mark Fairhurst: We are really short of space at the moment. That is why the Government introduced an earlier release scheme to relieve some of the pressure. As it stands today, we probably have about 850 spaces left in the adult closed male estate. At the time the Government introduced these temporary measures, we had less than 200 spaces left. As the backlog in the courts gets dealt with, and we see more people getting sent to prison, we are really struggling for space. That means we now have to overcrowd already overcrowded prisons. There is a really big strain on the system at the moment. I believe that, come next spring—March or April time—we will be in crisis again with prison spaces as things start to ramp up.

[Alex Cunningham]

Q Did the Government consult the POA about their proposal? If they did, what was your response?

Mark Fairhurst: No, they did not consult us at all. It was on the backburner for some time, but we were not made aware of it until it was actually going to be announced and put into action. Our response to it would have been the same no matter what: you need to look at sentencing first and foremost, particularly for those serving the shorter sentences. That would free up a lot of space. Overcrowding prisons even more just puts more pressure on the system. We need to look at prisoners serving sentences of imprisonment for public protection as well. We have about 3,000 people who are serving indeterminate prison sentences. They are not all a risk to the public. We need to look at that as well, to free up some space.

[Alex Cunningham]

Q The Government have put forward proposals on how we treat short sentences, and the presumption against short sentences, which I personally think is quite positive. How do you envisage that this proposal to send prisoners abroad would actually work? What issues will arise from that?

Mark Fairhurst: The problems I can foresee are that, for one, you have to have the agreement of the country you are going to deport them to. Secondly, you need to know the identity of the person and what country they are actually from—a lot of people do not divulge what country they are from. Thirdly, if you are going to send foreign criminals back to their country of origin and not insist that they finish their prison sentence in that country, there is not much of a deterrent to foreign offenders committing crimes in this country, because they will get a shorter prison sentence and will be sent back home at the taxpayer’s expense. Those are the problems I can foresee.

[Alex Cunningham]

Q I meant specifically sending British prisoners to see their sentence out in a foreign prison.

Mark Fairhurst: Again, it is all about cost. How much is it going to cost the taxpayer? Is it practical? How do we get them there? How many are we going to send? Our budgets are getting cut year on year through His Majesty’s Prison and Probation Service and the Ministry of Justice. Are we going to be given additional funding for it? The Government have promised 20,000 additional prison spaces. That is all well and good, but we cannot build prisons quickly enough and we cannot staff them because we are in a staffing crisis—we just cannot retain people.

[Alex Cunningham]

Q You mentioned that sentencing could be part of the solution to the problem. I am struggling to think of alternative ideas to reduce the demand on our prison system. Perhaps the Government are right to send prisoners abroad if they can rent space.

Mark Fairhurst: It is welcome that the Government have decided that there is a presumption against shorter sentences. If they focused more on community sentences that the public have confidence in, that would help. If they focused on a re-sentencing exercise for IPP prisoners, as the Justice Committee recommended, that would free up a lot of space. But again, have we got enough probation staff in our communities to supervise offenders given community sentences? That is another big issue.

[Alex Cunningham]

Q You just answered my next question. We cannot expand community provision if we do not have support in the community for defendants. What do you think will be the likely impact of the scheme on your members?

Mark Fairhurst: We will just see more and more pressure heaped upon us because prisons are already overcrowded. It will heap even more pressure on people. We cannot retain staff; most of them leave within the first two years of service. We do not have the infrastructure in many Victorian jails in inner cities to accept more people, so how quickly will we build new prisons and when will they be ready? More importantly, how will we staff them? For everybody’s notation, we are seeing a ramp-up in violence against staff, and more and more incidents of concerted indiscipline. It is only going to get worse the more we crowd prisons.

[Alex Cunningham]

Q Everybody around the table will recognise the tremendous work that prison officers do, and the increase in stresses and strains that they are facing. We need to be able to deal with violence against prison officers as well. Your members play an important role in through-the-gate services, helping prisoners prepare for release. How does the scheme impact that? I think the idea is that the Government would bring prisoners back before final release, but does that work?

Mark Fairhurst: Not really. It works in the open estate. The open estate is very successful at preparing people for release and for getting back into their communities, but it is not practical in inner city local jails because we simply do not have the resources to do that. I would rather the Government focused on increasing community sentences with the correct supervision, and expanding the open estate so we could prepare people for release and hopefully rehabilitate them.

You have to understand that unfortunately in the prison system, rehabilitation is just a word—a headline. We do not have the resources to rehabilitate anybody because we do not have enough activity spaces or workspaces. We struggle to recruit teachers and give everybody a purposeful workspace in our prisons. That really needs to be addressed.

The other focus is that a lot of people in prison really should not be there because they have severe mental health disorders. They would be better suited serving their sentence in secure mental health institutions, so maybe we need to look at investing in that as well.

[Alex Cunningham]

Q Thank you. I have one final question on a different subject. A provision in clause 22 of the Bill compels defendants to appear in court for sentencing. How does that affect your staff? You will not necessarily be transporting defendants, but in some cases you will be.

Mark Fairhurst: It is quite easy for prison officers to force someone to attend court; we restrain them on to a cellular vehicle and then they are taken to court. The problem arises at the other end because the courts are run by private security firms now. Have they got the staffing levels needed to take someone who has been recalcitrant off a bus and into a cell in the court? Have they got the resources to drag them into the dock if they are still displaying violent tendencies? Will that disrupt proceedings in the court? Will they be abusive to victims? Will it be distressing for the victims of crime to witness that in the dock? There are a lot of issues we need to look at.

[Alex Cunningham]

Thank you very much.

[Laura Farris]

Q Can I pick up on that final point about getting defendants into the dock for sentencing? I am sure you are aware that the discretion as to whether that order will be made will sit with the judge, so there will be an assessment of the defendant’s conduct. If the judge deems that it is appropriate to bring the defendant into the dock, the parameters for the use of force will be a decision that remains with the prison authorities. Do you think that is the right approach?

Mark Fairhurst: Judges have always had the discretion to order a defendant into the dock. When we used to run a court in the ’90s, there was many a time that we would have used force on a prisoner to get them in front of a judge. That discretion has always been there. It is the right way to do things—we are best suited to decide when it is appropriate and proportionate to use force.

I would like to see dialogue between the staff in the courts and the judge because, if the prisoner is being extremely violent or aggressive, I do not think sitting them in front of a judge is the right way to do things. Maybe we could do it remotely, in a secure room, so the victim still has the opportunity to read out their impact statement, rather than proceedings being disrupted—when you do things remotely, you have the ability to mute. We could still force the prisoner to address those victims, and the victims would feel as if they were getting some sort of justice.

Criminal Justice Bill (Second sitting)

Alex Cunningham Excerpts

Committee stage
Tuesday 12th December 2023 Public Bill Committees

[Stephen Metcalfe]

Thank you very much.

[Alex Cunningham (Stockton North) (Lab)]

Q Rebecca, I am really interested in the stuff about 10-year-olds. You said that if there were a situation in which one of these orders would be applicable, there would be other issues in that child’s life that were affecting their behaviours and everything else. What would be better than imposing this sort of order on a child of 10?

Rebecca Bryant: Look at how we respond to antisocial behaviour. It is a partnership response—things like Supporting Families, which used to be Troubled Families, and those types of interventions and support provided to the whole family, which are trauma-informed and understanding of adverse childhood experiences, and recognise that behaviour is often a symptom of something happening within the family environment. We should be taking a whole-family approach, rather than looking at a young person, a 10-year-old, as an individual on their own. There is something there about the drivers of why that young 10-year-old is behaving in the way that they are. It is much more complex than focusing on a specific incident perpetrated by a child at the age of 10.

[Alex Cunningham]

Q Would you accept that a family that has a child with challenges in his or her life may not be the best equipped to ensure that the child adheres to any order placed on them, and the child may therefore end up in the criminal end of the business rather than the supported end of the business?

Rebecca Bryant: That is a fair assessment. Civil enforcement powers do not enforce; all they really do is set out very clearly how society expects individuals to behave. There is an expectation when that order is given that the person is able to comply. If a young person aged 10 or 11 is perpetrating and demonstrating this type of behaviour, are you setting them up to fail if you are not thinking about different sorts of interventions and support? You could think of supporting the parent to become a better parent, able to set boundaries and support longer term change, or using other trusted adults and other types of intervention and remedy to support that young person to change.

[Alex Cunningham]

That is very helpful. Thank you.

--- Later in debate ---

[Laura Farris]

Okay, thank you.

[Alex Cunningham]

Q I want to take you back to the shop workers issue. Minister Philp, in his comments, clearly demonstrated that the Government are a bit shy of having a specific charge related to assaults on shop workers. For the record, can you tell us why shoplifting and related crime does not get the attention it requires and that the public, shop workers and the USDAW would like it to have?

Andy Marsh: In explaining this, I am in no way seeking to justify a lack of attention, but when a call is made to a police control room, they will triage it and they will use something called a threat, harm and risk matrix. If the offender has left the scene and no one is at immediate risk, that is unlikely to secure an immediate deployment. There is more likely to be a follow-up investigation. The retail crime action plan and guidance on our website, and all the focus on the use of images and facial recognition and on persistent offenders, is bringing a much sharper focus to an area of standards and police response that has slipped to an unacceptably low level.

[Alex Cunningham]

Q You are saying that in recent times the police have not responded to shop crime in the way that they ought to have.

Andy Marsh: Yes, that is very often the case. For example, if on the one hand you had an incident of shoplifting where the offender had left the scene—let’s say the items stolen were less than £50—but on the other hand you had a report of a domestic violence incident or some antisocial behaviour happening on the street right now, those two calls would be prioritised above the shoplifting.

[Alex Cunningham]

Q How much of it is a resource issue? If there were more neighbourhood police, would that sort of thing get the attention everybody believes it deserves?

Andy Marsh: When you look at the changes in crime type over the last decade, we have seen a very significant rise in what I would call complex crime and vulnerability. The answer is that the police need to be able to respond to complex crime and vulnerability, and they need to be able to secure the confidence of the public in their ability to deal with shoplifting. I am a big supporter of neighbourhood policing. We intend next year to introduce a professionalising neighbourhood policing programme, which will give neighbourhood officers, for example, not only the training and skills to deal with shoplifting, but the new powers on antisocial behaviour to keep their communities safe.

[Alex Cunningham]

Q That is helpful. I wonder if either of you could educate me in another area. If somebody comes into your home and bashes you, is that level of crime higher than if it happens in a public place or a shop? Is the law different?

Andy Cooke: No, the law is not different. The aggravating factor is that it is inside your house, not in a public space. People may consider that one is worse than the other, but at the end of the day the offence is the same, unless there is a weapon involved, as it obviously becomes a different offence after that—in private and in public—but both are equally serious.

[Alex Cunningham]

Q Is there not the same level of aggravating factor if somebody goes into a corner shop, where someone lives over the shop, and bashing that person?

Andy Cooke: The law would not necessarily say so. It would depend on the circumstances, on the weapons used and on whether it was a public or a private place. An open shop is, to a great extent, seen as a public place. The point I am trying to make is that an assault on a shop worker in a shop is a serious issue, and policing needs to do better to respond to these issues. I do not think there is any chief constable in the country who would disagree with that.

You asked if it was a resource issue. If there were more police officers, then they would be able to respond to more issues. Part of it is around prioritisation; and chief constables are responsible for the prioritisation that they choose. Have chief constables across the board got that prioritisation right? In my view, no, because a lot of the neighbourhood crimes we see—the thefts, car crime, burglaries, robberies—for some time have not been given sufficient credence, nor sufficiently tackled, as we have seen from the very low charge and disposal rates.

[Alex Cunningham]

Q You said a few moments ago that the aggravating factor in a corner shop situation would not necessarily apply. Is there not a case for strengthening the law to protect the corner shop keeper or the person in Marks & Spencer who is assaulted? Should the fact that they are being attacked within their workplace not be an aggravating factor?

Andy Cooke: I understand fully the point you are making. I think it might strengthen the response from the police, as opposed to strengthening the law. The question of whether there should be a separate offence for teachers or other people in the community has been asked already. There are enough laws to deal with this. It is the response from policing that needs to improve. The response from some of the retailers themselves—that is, the bigger retailers, who can afford to put more money into this—also needs to improve.

[Alex Cunningham]

Thank you.

[The Chair]

If there are no further questions, I thank our witnesses for their evidence. We will move on to the next panel. Thank you very much, the two Andys.

Examination of Witness

Dame Vera Baird KC gave evidence.

--- Later in debate ---

[The Chair]

I just gave the very briefest background.

Dame Vera Baird: Well, I’ve lived a long time—let’s be careful.

[Alex Cunningham]

Q You are very welcome, Vera. I think this is the third or fourth Bill where we have taken evidence from you, when myself and Minister Philp have been in the room.

You are aware that the Victims and Prisoners Bill is still going through Parliament; it is hoped that it will be improved somewhat in the Lords. Can you offer a general comment on how you see this Bill providing additional solace for victims?

Dame Vera Baird: I think there are some bits of it that are good and perhaps will be very helpful to victims. The real problem with the Bill, if I may be really clear about it, is that it does not really contribute to solving the key criminal justice issues of the day, which are that charging has collapsed, prosecutions are few, there is a backlog of 65,000 at the courts—which has got worse, not better, since the end of the pandemic—and the prisons are full. There is no coherent strategy or provision in the Bill that is tackling any of those issues. Fine, there is some change to sentencing, but you have to appreciate how few people get as far as sentencing these days. I wonder whether we are not starting at the wrong end.

However, having said that—and I do say that, very strongly; and in that sense, the Bill is a disappointment—there are some bits of it that are very welcome.

[Alex Cunningham]

Q Which ones?

Dame Vera Baird: I think that rationalising the way intimate images are dealt with is very good. The Law Commission has done a really good job of doing that. I think there are a couple of missing bits, which I could come back to later. Probably some of the aggravating sentence provisions are good, but I am worried about the fact that the Wade review has not been implemented as a whole.

There is a risk with the aggravations of sentence in domestic abuse without the mitigating factor in the Wade review. If someone strikes back after suffering coercive control for a long time, that should be a serious mitigation. I can easily see some of the aggravating provisions catching women, who will not be protected by the mitigation. Although some of the aggravations are fine, that is a real problem for women victims of coercive control—coercive control is 90-odd per cent. men on women; there is no doubt of that. That is the classic model of male-on-female, spousal domestic abuse. I am worried a little bit about that, but the basic provisions are reasonably okay.

I am pretty worried about prisoners going abroad. The problem with that is that it is permission without really knowing what permission is being given for: we do not know what kind of prisoners will go, whether it will be in the middle of their trial, whether it will be while they are still on remand or any of it. That is a little worrying. It is a bit of a mixed bag.

[Alex Cunningham]

Q We will move on a little. Given what you have said, do clauses 23 and 24 about the aggravating factors in grooming and the end of relationship go far enough?

Dame Vera Baird: I am not sure what the grooming one adds; I think it just broadens it. If grooming is involved, it is already taken into account as an aggravating factor in sentencing. Perhaps we can do that with a person who might have abused a groomed child directly. Perhaps this provision broadens it so that if the person who fixes up the child is also groomed—perhaps become someone has gone through him, grooming is in the environment and so it will enhance the sentence. The Bill broadens this a little; if it does, it is a good flag to wave because we want to tackle grooming and make sure it is taken into account. But I do not see it as a major change.

The problem is where there is a victim of someone abusive, and the killing is brought about by the victim’s decision to try to leave—or to leave. So we are looking at aggravating the sentence of an abusive person when the victim has said she is going to leave. That is a classic model, which Jess knows all about: the eight steps to homicide. That has been well researched. Professor Jane Monckton-Smith talks about this: when the victim says she is going to leave is the most dangerous time. That is the time when killing happens, so it is appropriate to aggravate the sentence because of that position being there—it is commonplace.

The worry is that sometimes women who have been coercively controlled for a very long time and have suffered badly are also aware that their husband is being unfaithful with someone else. He says that he is going off with the other woman, and that can trigger her to kill him. Without the protection in the Wade review—to say that if she is being coercively controlled, that is a mitigation—what you will have done is to aggravate her sentence through this change, which is not a thing that anyone intends. It could do with just another quick look at how it will work.

[Alex Cunningham]

Q Clause 30, which addresses the assessing and managing of risk posed by coercive behaviour in offenders, refers to an “intimate or family relationship”. Is that wording of the clause clear enough? The expression “intimate” opens too wide an interpretation —or perhaps too narrow an interpretation.

Dame Vera Baird: I am honestly not sure about that; I have not given it much thought. It sounded like what we would expect to be there, so I do not think I have much of a comment.

[Alex Cunningham]

Q There are two other things. The first is clause 22, which compels a defendant to attend court for sentencing. I think we all realise that that will be challenging to implement, but what are the benefits and pitfalls of that proposal in relation to the victim?

Dame Vera Baird: As I am sure the Ministers know very well, this adds absolutely nothing to the current law. A judge can order somebody to come into court. If they do not, it is a contempt of court.

[Alex Cunningham]

Q The clause actually talks about using “reasonable force”.

Dame Vera Baird: But you can already use reasonable force. As long as it is proportionate and necessary, the Prison Service is entitled to use reasonable force to fulfil the orders of the judge. If the judge says, “You must come” and you do not come, it is, No. 1, a contempt of court. And guess what the maximum sentence is for a contempt court? It is two years, exactly as it is in the Bill. If a person does not want to come and the officers regard it as necessary and proportionate to use force to bring them, they are entitled to do exactly that to fulfil the judge’s requirements. There is really no change here.

I well understand the sense from a victim that they want this moment—“Right, he’s going to face what he’s done now and I’m going to get some benefit from that.” But the reality is that you cannot capture somebody’s mind, can you? There are always risks that people who are dragged into court might be a nuisance. You can just imagine what could be done there. So it is a very difficult one to get right, although I understand the impulse to try to do this.

I think it was the former Lord Chief Justice John Thomas who suggested that a better way was to make sure that if the person does not come out of the cell, he is in a cell to which the sentencing can be broadcast. He cannot get away and the victims know that he has, as it were, faced his moment. Whatever he is doing—whether he is listening or he is not—they do not know, and that is the time passed.

[Alex Cunningham]

Q That is very helpful. This is my final point. Clauses 11 and 12 address the offence of encouraging and assisting serious self-harm, and of course there are plenty of victims in that sort of category. Are those clauses fit for purpose or could they be improved?

Dame Vera Baird: I think they probably need to be strengthened quite a lot. I do not think there is anything in there that could criminalise somebody who provided a means for doing it as opposed to encouraging it. So if someone provides—I do not know—a knife or some drugs, I am not sure there is provision for that, and I think that is a big miss. This is a really worrying area and we need to legislate, and that is one of the good things in the Bill.

[Laura Farris]

Q I just wanted to clarify something. A statutory instrument is going through the Lords today on coercive control as both an aggravating factor and a mitigating factor, to deal with exactly the point that Clare Wade was driving at. Some of what we have done in relation to Clare Wade is not in this Bill. This is not the entirety of our implementation of the Clare Wade review, and I just wanted to provide that reassurance. Not all of that requires primary legislation.

In that context, coercive control is making its way through in different forms. I have a narrow question about what you thought about the use of MAPPA—multi-agency public protection arrangements—in relation to the management of a serious coercive control offence.

Dame Vera Baird: I think it is good to state that formally. I am sure that it happens now quite a lot.

--- Later in debate ---

[The Chair]

We will now hear oral evidence from Jonathan Hall, the independent reviewer of terrorism legislation, who is joining us via Zoom. For this panel we have until 4.10 pm, so could Members keep an eye on the clock?

[Alex Cunningham]

Q Good afternoon, Jonathan. We have exchanged questions and answers a few times on Bills in recent years. What measures in this Bill will make our country safer from terrorists?

Jonathan Hall: There is only one measure that deals with counter-terrorism. It has to do with allowing released terrorist offenders of a certain category to be subject to polygraph measures. In principle, I suggest that polygraph measures for released terrorist offenders are a good thing; there was an evaluation by the Ministry of Justice in October that tends to support that. However, there are some significant reservations about the way the provision is being put before Parliament, which involves—impermissibly, I think—giving the Secretary of State powers that should belong to judges. This is a slightly technical point, but if you will give me a moment, I would like to explain it.

[Alex Cunningham]

Q I think you expressed reservations about a similar set of circumstances when we were considering another Bill a couple of years ago. Are you saying that the provisions in clause 31, subsections (4) to (6), are insufficient?

Jonathan Hall: What I am saying is that normally it is for judges to decide whether a person is a terrorist. That is what they do: either someone is convicted of or pleads guilty to a terrorism offence, or the judge makes a special determination that their offence, which could be something like robbery or assault, was done either in the course of terrorism or for the purposes of terrorism. But this clause would allow the Secretary of State to do that exact exercise in relation to people who were convicted pre-2009. You might well have someone coming up for release who went to prison having been convicted of a non-terrorism offence, but now finds themselves converted into a terrorist offender by a decision of the Secretary of State. The view I take is that that is really a function of judges.

In fact, if you look at the wording of the Bill, the Secretary of State will be allowed to be “satisfied”—not beyond reasonable doubt, just satisfied—on exactly the same test that currently applies to judges. There is obviously a fundamental issue there, which I can expand on, but there is also a really practical issue, because what is a terrorism offence is not always very obvious. Can I give you an example, so that this does not sound pie-in-the-sky and theoretical?

[Alex Cunningham]

Yes, please.

Jonathan Hall: I do not know whether the Committee recalls the Liverpool Women’s Hospital bombing, but there was a gentleman in 2020 who blew himself up in a taxi, and it looked like a classic terrorist attack. He was a Muslim, although it appeared that he had converted to Christianity, and he had a suicide vest packed with explosives. The police did a two-year investigation—he killed himself, so there was no prosecution—and they concluded that in fact it was not terrorism at all. He was simply affected by a grievance to do with not being granted asylum.

That shows you how difficult it is. I would be really wary about the Secretary of State being allowed to go back in time to look at all these old offences and say, “I decide that this was a terrorism offence.” The Bill does not give a right to be heard to the person who is going to find his conviction converted into a terrorism offence. It does not give the prosecution a right to be heard, which is actually quite important because the prosecution will often understand these things very well. It would allow the Secretary of State, I think, to act on the basis of intelligence that is not even shown. In principle, it seems to me wrong.

This issue has arisen before. I do not know whether the Committee is aware, but you will have people who were convicted of terrorism offences abroad; if they are British nationals, they will perhaps be deported to the UK after they have served their imprisonment. There is a provision in the Counter-Terrorism Act 2008 that allows the chief officer to go to a judge and say, “Look: we think that this person was convicted of a terrorism offence that is the same as a terrorism offence in this country. Can you please certify that that is the case, or can you certify that the offence was committed in the course of terrorism?” If the judge says yes, that allows all the post-release measures—such as polygraph measures, with which this clause is concerned—to be applied. So there is a model that already exists for old foreign offences. Slightly ironically, the power that Parliament is being asked to create here would make the protections available to a domestic offender less than those that apply to a foreign offender.

[Alex Cunningham]

Q So it may even be challengeable under the law at some future stage. I am looking forward to our line-by-line discussions in Committee, after the evidence that you have just given. Finally, do we need to add any new measures to better manage terrorist offenders on release?

Jonathan Hall: No, I do not think so at the moment. I am in constant contact with counter-terrorism police and the Home Office. I am not aware that the Government are looking for yet further types of measure; if they were, I think they would have sought to bring them in within this Criminal Justice Bill. All that this particular measure does is allow an existing measure, polygraphs, to be applied to a wider range of people. My beef with that is that it allows it to be applied to people who have never been convicted of terrorism, without it going in front of a judge. So I think that the answer is no.

[Laura Farris]

Q You have made some very important points about cohort and how that is determined, and obviously the risk of a borderline case—or a case where, in fact, a judge may not have found a terrorism offence—being brought into scope. More widely, what is your view on the efficacy of polygraph testing? How useful a tool is it in the detection of risk?

Jonathan Hall: I was in favour of polygraph measures after Fishmongers’ Hall. It was partly on the back of one of my recommendations that polygraph measures were brought in. They always, or at least for a long time, existed for sex offenders. You will recall Usman Khan, who was clearly a very deceptive man. My view was that polygraph measures could be useful.

--- Later in debate ---

[The Chair]

We will now hear oral evidence from Professor Penney Lewis, commissioner for criminal law at the Law Commission. We have until 4.30 pm for this panel. Could you please introduce yourself for the record?

Professor Lewis: I am Professor Penney Lewis; I am the commissioner for criminal law at the Law Commission of England and Wales.

[Alex Cunningham]

Q You are very welcome this afternoon, Penney. What does the Law Commission see as the major benefits of this Bill in better serving justice?

Professor Lewis: We are extremely pleased that there are measures from four of our projects in the Bill. Those are the provisions that I can speak about today. Those four projects are intimate image abuse; modernising communications offences; corporate criminal liability; and confiscation of the proceeds of crime. If I say a little about each of those—[Interruption.]

[Alex Cunningham]

I beg your pardon—my phone was making a noise.

[The Chair]

Can we all check that our phones are on silent, please, and that they haven’t got a mind of their own?

Professor Lewis: I will start with confiscation, because that is the largest area of the Bill; the provisions are in schedule 4. The review aimed to simplify, clarify and modernise the post-conviction confiscation regime—in other words, the confiscation of the proceeds of crime after someone has been convicted.

We know that the current regime works in some cases, where it can result in funds being allocated to victims through compensation that can be paid out of confiscation, but there is still a fairly strong consensus among stakeholders that the current regime is inefficient, overly complex and in some cases ineffective, with weak enforcement methods. Our recommendations were aimed at improving the current system to give courts more powers to enforce confiscation orders and seize offenders’ assets, but also to limit unrealistic orders that can never be paid back and to speed up confiscation proceedings, thus allowing victims to receive compensation more quickly.

I will touch on the other three projects, which have a smaller number of measures in the Bill. As I think most of you will know, some of the recommendations that the Law Commission made on intimate image abuse were implemented in the Online Safety Act 2023: the offences of sharing an intimate image without consent and with no reasonable belief in consent; and threatening to share an intimate image. The other recommendations that we made were taking an intimate image without consent; and installing equipment in order to take an intimate image without consent. Those offences could not be included in the Online Safety Act because they are not communications offences, so this is really the second half of the implementation of our recommendations.

We aimed to provide a clear, coherent and cohesive set of offences that would cover all types of sharing and taking without consent, that would have one consistent definition of an intimate image and that would reflect different motivations that defendants might have for sharing and taping intimate images without consent, including cases where the defendant apparently has no motive. We recognise more serious culpability with motives of intending to cause humiliation, alarm or distress, or for the purpose of obtaining sexual gratification, but we also recommended criminalising cases where those motives cannot be proven. We are very pleased that those offences have now been included in the Criminal Justice Bill.

Briefly, corporate criminal liability is another example of the completion of implementation—something that we discussed in our options paper. It was not a full report, so it did not have recommendations, but it had a number of options. One was reform of the identification doctrine. You may know that the Economic, Crime and Corporate Transparency Act 2023 included reform of the identification doctrine, which allows for the attribution of personal criminal liability to the corporation in certain circumstances where the person is a senior manager, so it expands that form of attribution. That could only be done in relation to economic crime in the Economic Crime and Corporate Transparency Act, so the reform in this Bill basically expands that to include all types of crime for which a corporate liability may be appropriate.

Finally—yes, I am getting to the end of my answer—one offence in the Bill, which is encouraging or assisting a serious self-harm, is again the expansion of something that was the implementation of a recommendation for the Online Safety Act from our modernising communications offences project. That offence was included in the Act insofar as it was a communications offence, but it is also possible to encourage self-harm by handing somebody a knife, so this expanded offence in the Criminal Justice Bill includes that kind of more physical assistance. It is not restricted to assistance by way of communication.

[Alex Cunningham]

Q That is a pretty full answer, thank you. May I ask you about clauses 23 and 24 and the aggravating factors in relation to grooming and the end of relationship? Do they go far enough?

Professor Lewis: Those clauses are not the implementation of any Law Commission recommendations, I am afraid. The Law Commission does not take a position on those parts of the law that we have not had the opportunity to investigate or to speak to stakeholders about. I am afraid I cannot help on that.

[Alex Cunningham]

Q I assume that the same applies to clause 30 on coercive behaviour offenders, where the language in the Bill refers to an “intimate or family relationship”. I was going to ask for your view on whether that expression is too wide—the intimate relationship. Is that something you would comment on or not?

Professor Lewis: It is not something we have looked at in relation to that clause. I would take a very small opportunity here to mention that we are about to start a project on defences for victims who kill their abusers, so we will be looking at the kind of relationship that should qualify in relation to defences. We are aware that if, for example, one restricts it to intimate-partner violence, then one risks excluding “honour-based” killing, which can also happen in a family context. We are planning to look at that, but we have not looked at it yet.

[Alex Cunningham]

Q Have you done any work on homelessness and people on the streets—aggressive beggars and things of that nature? I wanted to ask you your opinion on whether the measures proposed by the Government—I think there are 30 clauses in this particular area—are proportionate, workable and fair. Is that something you would comment on?

Professor Lewis: I am really sorry to disappoint, but it is not something we have looked at. We did look at homelessness as a possible protected characteristic for the purposes of hate crime law when we did the project on hate crime law a few years ago, which you may remember. That was a really interesting and revealing experience, because when we first started talking to stakeholders, some of them, including Shelter, were quite opposed to the idea of including homelessness as a protected characteristic—they thought that it entrenched homelessness when we should be trying to remove it and prevent it.

When Shelter spoke to homeless people on our behalf, which was really helpful, and when we spoke to homeless people, they actually described a lot of very horrific criminal behaviour perpetrated against them, and they experienced that as a hate crime. They experienced it as involving hostility towards them because they were homeless. We have some experience of looking at that. Ultimately, we did not recommend the expansion of hate crime law; as you may remember, there was a lot of opposition to its expansion. But we certainly saw the benefit of making sure we spoke to homeless stakeholders in order to really understand their lived experience.

[Alex Cunningham]

Q You will not comment on the begging issues?

Professor Lewis: I am afraid that is not something that we have looked at.

[Chris Philp]

Q Penney, welcome to the Committee. Thank you for joining us this afternoon. Sorry if you got stuck in security downstairs. Can I start by asking about the proceeds of crime measures referred to in clause 32 and expanded on in the extremely long schedule 4, which takes up about 38 pages? Can I just check that those follow your recommendations and that you are happy with them? Can you give the Committee some sense of the impact you think the Bill will have if passed?

Professor Lewis: Many paragraphs of the schedule do implement our recommendations. We are extremely pleased to see our recommendations implemented extremely swiftly. This project only reported over a year ago. We obviously do think that the changes we recommended would make a difference in the ways I mentioned earlier, which included improving enforcement and the ability to seize offenders’ assets, limiting unrealistic and in some cases unfair orders, and allowing victims to receive compensation more promptly.

We estimated at the time that the reforms could lead to an extra £8 million in funds being retrieved from criminals in England and Wales every year. That obviously helps to return more money that can be used on public services, for instance. I am happy to talk in more detail about specific recommendations if that would be helpful.

Criminal Justice Bill (Fourth sitting)

Alex Cunningham Excerpts

Committee stage
Thursday 14th December 2023 Public Bill Committees

[Alex Norris]

Q One of our witnesses on Tuesday—it has completely escaped my mind which one—said it was very important that retailers did their part of the job too in ensuring that shops were safe environments to work in and not easy to steal from. I want to give Helen and Paul in particular the right to reply on that, because I thought you might want to.

Helen Dickinson: I agree completely with that comment. The reason why over 90 chief executives signed the letter to the Home Secretary from right across different parts of retail was that they are concerned about the fact that they are doing all they can, but feel that there is nothing more they can do. Paddy mentioned some statistics.

How do I describe it? It has two big impacts: one is financial, on the bottom line, how the profit of companies will be impacted unless they do everything that they can to address what could impact their business; and the second impact is on their biggest asset, which is their people, whether that is in absenteeism, morale or motivation to do their job well. Those two motivating factors, from a business leader point of view, mean something to every single business leader that I talk to. Literally, that is probably the thing that comes up most in the chief executive conversations that I have, because they feel that they have done everything that they can and that they are running out of road in terms of things that they could do.

The Minister asked about facial recognition, and I know that that is being explored by a lot of people. There have been various announcements about body cameras. People pay money into business improvement districts and regional partnerships. We have the Pegasus Project, which is trying to get better co-ordination across different parts of the police, specifically focused on organised gangs. That is being funded by retail businesses. They are not handing it all back and going, “It’s someone else’s problem.”

That is my answer to whoever it was. I am very happy to put them in front of any retail business, and I am sure they will be given lot of reasons. Paul, I do not know if there is anything you want to add.

Paul Gerrard: The Co-op is one of the businesses that is funding Operation Pegasus. Over the past four or five years, we have spent £200 million on security measures in our stores. That is four times the sector average. If you go into some of our stores, you will see state-of-the-art CCTV, body-worn cameras and headsets. We have increased our guarding budget by almost 60% from pre-covid days. We are constantly investing. We have had a problem with kiosks, where people jump behind the kiosk counter, often armed, terrifying colleagues who are still in the kiosk. We have just invested heavily in new kiosks to stop people from doing that.

Helen is absolutely right: the retail sector takes this really seriously. We consider the first responsibility to be ours, which is why we invest as much as we do to keep colleagues and shops safe, but we are getting to the point with some stores in the Co-op estate and across retail where it is increasingly hard to work out how to run a store that keeps colleagues safe and can make a commercial return. That will mean that shops will close, and we all see what happens when shops close: communities face tough times.

I have heard the police express that idea that we are not doing anything. They have had a similar, less-than-polite response from me when they have said it, because it is patently untrue.

Paddy Lillis: It is 21st-century Britain, and we have retail workers with body cams on—it sounds like a war zone. At the time, we are trying to get things right and get people back into the towns and city centres, but we are helpless. It is a societal problem, something we all need to work towards addressing. We must put the support we need behind retail staff and businesses. I have worked with them. Security measures just last year cost £1 billion, with more and more going in, but somewhere along the line we all pay for that. It is a massive problem that has to be addressed.

[Alex Cunningham (Stockton North) (Lab)]

Q I am interested in the answer that Helen gave to the Minister about why retail workers should be a special case. I wonder if you would speak a little more about that. My understanding is that attacks on teachers, doctors, leisure staff, pub staff or whatever have not increased in particular in recent times, whereas we have seen this tremendous surge not only in organised crime in shops, but in assaults on retail workers.

The reason why the Government—rightly—responded to proposed changes for emergency workers was that we had seen a huge increase in activity: attacks on vehicles, on people, and everything else associated with that. Helen, would you like to talk a little bit more about that, and just clarify that it is also your understanding that it has soared in the retail sector, whereas some of the other categories that the Minister referred to have, in fact, remained relatively static?

Helen Dickinson: I think Paul summed it up. I cannot comment on behalf of other industries, because I am not close to what might be happening. I engage a lot with my peer group across different sectors, and it does not come up in the same way as it does when engaging with my members.

Paddy Lillis: Retail is an easy target for people. It is an easy way to make money, as Paul outlined earlier. In today’s climate, as I said, there are three areas: the cost of living, addiction to alcohol and drugs, and now the criminal gang element. The retailers rightly told me that this is a golden quarter. It is a golden quarter as well for the criminal gangs, because they are in there robbing the shops under the cover of thousands of people shopping every day.

Paul Gerrard: If you were to ask people who have been in retail for decades, nobody would say they have seen anything like this, even during covid. No one has seen this scale of crime and the—often weaponised —violence and abuse that goes with that. It is out of control. We released CCTV footage earlier this summer, and it is like a riot trying to get into some of our stores, because people are intent on stealing and causing violence and abuse. I do not think anyone in retail—Paddy has been in and around retail for much longer than me—has seen it like this before.

Helen Dickinson: Businesses such as the Co-op—in convenience— have often been at the frontline, because there is that proof of age required when somebody is buying alcohol or cigarettes or whatever else it might be. He is seeing that escalation, but there are other sectors that would never have raised this as an issue now bringing it up as the most significant thing impacting their business. One of my members is a beauty business with only one or two staff members in its stores. It has the same organised gang turning up, week in week out, using abuse and violence to basically get the staff to step back so that they can literally just sweep the whole stock. A business like that is potentially going to shut up shop, because it is not worth it in terms of loss. I do not know if we have quite answered your question.

[Alex Cunningham]

Q I think you have—I am quite content with that.

Paul, in your earlier evidence, you talked about the difference that you believe the change has made in Scotland. I think you said that there was a 60% arrest rate. I think it is probably in single figures south of the border. How much of that do you think is due to the law change, and how much is maybe a change in police policy, or the fact that police numbers have increased a little in Scotland?

Paul Gerrard: I am not sure I can talk to the latter point. I would say that in Scotland we see a police force that is taking it more seriously. Maybe they have more officers; I do not know. They take it more seriously. I think Daniel Johnson MSP’s Protection of Workers Act has sharpened minds and given a really strong message that the Scottish Parliament considers an attack against a shopworker to be a particular kind of crime. I said that there is a 60% arrest rate on reported violent incidents. We are absolutely nowhere near that in England, because they are not turning up enough to do that.

Helen Dickinson: The visibility of the tracking means that it prioritises the resource. That then increases the response rate, and it becomes self-fulfilling.

[Alex Cunningham]

Q Even in England, we saw a huge cut in the number of police officers across the country since 2010. At least we are getting back to a point now where we actually have more police officers again. Do you think that is actually going to make a difference, and might it lead to more activity in shops—the retail world—than it might have done otherwise?

Helen Dickinson: Not without the measurement to be able to prioritise it.

[Alex Cunningham]

That is helpful, thank you.

[The Chair]

Are there any other questions?

[Chris Philp]

Only to put on record that we actually have record police numbers now. It is not getting back towards the peak; the peak has been exceeded by about 3,500—

[Alex Cunningham]

You do not have to give evidence!

[The Chair]

That is on the record. In that case, I thank the witnesses for their time and for their very open and full answers.

Examination of Witness

Clare Wade KC gave evidence.

[The Chair]

Q We will now hear oral evidence from Clare Wade KC, the independent reviewer of domestic homicide sentencing. We have until 3.25 pm for this panel. Can you introduce yourself for the record, please?

Clare Wade: I am Clare Wade, a criminal barrister specialising in defence. I am a KC. I tend to specialise in domestic homicide, whether that is murder or manslaughter; increasingly, that is my practice. I have specialist experience in defending women in particular who kill their male abusive partners, but I also defend men who have killed their female partners, so I have quite a lot of experience in that. I was appointed as the independent reviewer for domestic homicide sentencing and wrote the domestic homicide sentencing review. I am here to answer any questions about my expertise on that.

[Alex Cunningham]

Q Good afternoon, Clare. Thank you for being here today to give evidence, and for the tremendous work you do in this particular space. We have heard your name crop up time and again because of the work you have done, so we do appreciate that. We have seen a few changes to legislation in relation to the sentencing of those responsible for domestic homicide. How does the Bill do more in that space?

Clare Wade: Clause 24 encapsulates one of the recommendations in the review, building on the secondary legislative proposals to put into law the aggravating factor of killings at the end of a relationship. I have to say that it looks a little odd in the Bill because it is, as it were, stand-alone. The intent behind the policy is to have a coherent legislative policy that addresses all the harms, and addresses the particular harms in these cases. We now have in the secondary legislation the aggravating factor of coercive control as something that has happened in terms of the history of the relationship by a perpetrator towards a victim, and vice versa—it is a mitigating factor as well.

Obviously, these killings nearly always happen within the context or confines of domestic abuse and, in the cases we looked at, we found that there was frequently an escalation in domestic abuse when the victim—in the majority of cases, a woman who is killed by her male partner—wants to leave the relationship. That particular recommendation was made because not only is that a real harm, and that represents the real danger, but the policy underlying the other recommendations is one that places the concept of controlling and coercive behaviour at the forefront of the thinking.

The real harm in terms of coercive control, which the law does not yet recognise, is entrapment. It is not fear, as in being continually afraid, and it is not necessarily physical injury. It is entrapment, which is what prevents people who are being abused from leaving relationships. Putting that into legislation as an aggravating factor that can be taken into account by the courts would make it clear that that is one of the harms, but it would also, I suppose, bring to our consciousness the real harm in domestic abuse.

Of course, we are really only just getting to the stage where we understand what underpins domestic abuse—in my view, it is controlling and coercive behaviour, as I have explained it in the report I wrote.

[Alex Cunningham]

Q That is very helpful. In our evidence on Tuesday, Nicole Jacobs, the Domestic Abuse Commissioner, spoke of your report. She welcomed the measures that were included in the Bill, but she went on to say that she lamented those recommendations that had been excluded and believed that your package of recommendations should have been taken as a whole. What do you think the Committee needs to add to the Bill to fully recognise the importance of your work and get this right?

Clare Wade: Two things, I suppose. It is important to look at the terms of reference that I was given when I was asked to conduct the review. Two issues presented themselves in terms of problem areas, as it were, in the law as it stands. One of them was an issue that had really precipitated the whole campaign. In our sentencing framework for murder, we have various stages by which we attribute the gravity and seriousness of the offence. One of those involves taking a weapon to the scene of a murder with the intention of using it, and then using it in committing the murder. There is a 25-year starting point in relation to that, whereas most domestic murders—and we found this to be the case in the cases we looked at—have a 15-year starting point.

One of the problems identified was: why was there that disparity between people who have taken a knife to the scene and been convicted for doing that, and people who may not have taken a weapon to the scene but have reached out and used a weapon? We found that the real harms in the way in which those offences are committed were nothing to do with taking a knife to the scene—that really was a red herring. The real harms that were being identified by secondary victims—the mothers of the women who had been killed—were things such as overkill. One of the things that struck me when I looked at the cases was something that Julie Devey said, which was: why is it that you can take a knife to the scene, stab somebody once in a single stab wound and face a starting point of 25 years for your minimum term, and you can stab somebody 79 times in their own kitchen with a knife and face a starting point of 15 years?

I was able to discern that one of the harms was something that we have called overkill, which has now been accepted as something that should be legislated on by the Government. However, I concluded on the overall package that the whole issue of taking a knife to the scene, the 25-year starting point and the disparity was a complete red herring, and that the issue of taking a knife to the scene will inevitably lead to anomalies—for example, you might have a man who kills his ex-partner, takes a weapon to the scene and is therefore eligible for a 25-year starting point, but in real terms of culpability it is no different to killing her in the home. The real issue was something else—other sorts of harms that pertained to these murders.

Therefore, the whole 25-year starting point should be disapplied when we are dealing with domestic murders. Nothing is lost by that. That has obviously been rejected, and there is now a further consultation on having a 25-year starting point or a higher starting point, but it is completely otiose in my view if you take into account the real harms that we have successfully identified and that the Government have taken on board. You will reach the same result in coming to the sentence, but you will reach it by identifying the real harms. That is one thing that I would say probably needs to be looked at again.

The other thing is strangulation. We looked at the killings in our sample—and obviously the literature, frontline responders and everything else—and strangulation is a gendered form of killing, in the sense that in all but one of the cases that we looked at in our sample, it was used as a method of killing a female, usually by an abusive male, within a context and a history of controlling and coercive behaviour. So I recommended that strangulation ought to be an aggravating factor, and that has been rejected. The argument, as I understand it, is that it places too much emphasis on the mode of killing, but it does that for a reason because it is a gendered form of killing.

The corollary is that the use of a weapon, which is not a statutory aggravating factor but is often seen as an aggravating factor, should in my view not be an aggravating factor necessarily. Women who kill men who abuse them always use a weapon, because it is not possible for them to commit a murder without doing so. So those two factors concern me. I am with Nicole on that.

[Alex Cunningham]

Q That is pretty comprehensive. Can I ask you about clauses 23 and 24 and the aggravating factors in relation to grooming and the end of a relationship? Do those clauses go far enough?

Clare Wade: I will speak to clause 24 first, if I may. I think it probably does go far enough in terms of that point because it says “connected with” the end of the relationship, and that is sufficiently comprehensive. In terms of grooming, on the face of it, yes, I suppose. I am not sure if there is a definition. I am always perplexed by the lack of a legal definition of grooming. Even in the cases that I do, we all have an understanding of what it is, but I am not sure it is properly defined. I did not see anything, but I might have missed it. When we ask victims, “What do you understand by grooming?”, for example in the cases that we do, they say, “Somebody pretending to be your friend, but not being your friend and using you for sex.” It is not defined anywhere and it is such an important concept.

In many of the sexual offences, particularly historical sexual offences, grooming is now taken into account in directions to juries about consent. They are asked to consider whether consent was true consent, given the background of grooming. It is a massively important concept. It is floating around, but maybe not sufficiently nailed down—I don’t know. But yes—on the face of it, yes.

[Alex Cunningham]

Q Clause 30 addresses assessing and managing the risks posed by the coercive behaviour of offenders. It refers to an “intimate or family relationship”. Do you think the wording of that clause is clear enough? We were just talking about clarity around grooming, and I agree with you there. Is the wording of clause 30 and the reference to “intimate or family relationship” too wide? Or do you think it is okay?

Clare Wade: I would have to consider it further, but I suspect it is probably all right. We are talking about the management of risk factors within that context. I imagine it is probably all right, as you are talking about convicted persons.

[Alex Cunningham]

Q I am particularly interested in the “intimate relationship”, because that can take many different forms.

Clare Wade: “Intimate relationship”, certainly in the work that I do, would mean partner/ex-partner. I will turn that round—do you think that is too narrow?

[Alex Cunningham]

Q Fair enough.

Clare Wade: I think it is probably right if we look at some of the definitions elsewhere, certainly in terms of the controlling and coercive behaviour that it brings into the management.

[Alex Cunningham]

Q That is helpful; thank you. This is perhaps not your bag, but clauses 11 and 12 address the offence of encouraging and assisting serious self-harm by a victim. Would you hazard a comment on whether those clauses are fit for purpose?

Clare Wade: I was thinking about that in terms of some of the scenarios that present themselves in domestic abuse situations. As I recall, the mens rea for that is intentional, which means that it is not too broad. However, off the cuff, I would say that it certainly fits in with some of the cases that we see that result in the suicide of people who are trapped in relationships that they cannot escape—for whatever reason: whether a combination of mental health factors or entrapment. Therefore, I would probably support that. I do not know whether it needs to be narrowed down or not, but certainly, for more remote relationships, it is an important legislative provision.

[The Chair]

Alex, I will let the Minister ask some questions for now, but there may be a moment to come back to you afterwards.

[Alex Cunningham]

Okay, fair enough.

[Laura Farris]

Q I just want to say that I thought that your review was absolutely excellent, and it has contributed in a really profound way to the way we talk about these issues in Government. Following the passage of the Domestic Abuse Act 2021, it has been probably the most critical piece of work that has been produced for the benefit of Ministers. I reread it before you came, and I was just so impressed by how comprehensive and detailed it was.

We all know that you are, of course, supportive of the clause 24 provision, which mirrors what you recommended, but I wanted to ask you about some of the things that you have just said. You said in your report that you found that coercive control underpins all domestic abuse. I think that you also made reference to the fact that there is now a consultation happening on minimum sentences in two regards. The first is in relation to whether any killing—any domestic homicide, to use your language—where there has been coercive control should attract a minimum sentence. I think that that goes a bit wider than anything that you put in your review. I will ask you about that first, and then I will go on to the second part.

Clare Wade: My view about setting minimum sentences in stone is quite strong. I am actually not a fan of minimum terms and starting points because I think that it takes away quite a lot of judicial discretion. Even though they are only starting points, we often get stuck with them. There is an argument that schedule 21 is probably not fit for purpose. As I say in the paper, it is frozen in 2003 and it comes with the problem that there is always this issue of, “Do we add another starting point in?” I think that the 25-year minimum terms has done nothing but cause problems.

--- Later in debate ---

[Laura Farris]

Q Especially as the victim cannot give evidence.

Clare Wade: The victim cannot give evidence. If you are looking at sentencing comments, you are not looking at the evidence in the case. Take the two cases with which we started the review, those of Ellie Gould and, in particular, Poppy Devey Waterhouse—the review was initiated by the campaign on those cases. I was able to look at the prosecution case files and see that some of the factors we were able to identify in looking at the evidence were apparent in those cases.

In one of the cases, there was some stalking; in both cases, the killing happened at the end of the relationship where the victim wanted to leave the relationship; there was a little bit of violence. We found those factors, but they were not necessarily apparent from the sentencing remarks—one had to look at the papers through the coercive control prism to be able to identify them. Looking only at sentencing remarks is an imperfect way of looking at all these cases. That is why I welcome the Law Commission looking at the issue of defences.

[Alex Cunningham]

Q I was grateful that you were able to comment on the issues around self-harm. The Bill also covers policing. Do you have a view on the way the Bill treats police-perpetrated domestic abuse issues, the specified offences in relation to gross misconduct, and the requirement of vetting? It may not be your bag.

Clare Wade: I would obviously welcome that. We have had some very high-profile cases where police officers have committed dreadful offences. Public confidence, particularly the confidence of women, needs to be restored in policing, so I would welcome that transparency.

I suppose there is an underlying cohesion in some of what we say. For example, one of the questions that we wanted to answer in the review is how domestic homicides sit and fit with misogynistic killings of women generally. I hope that by identifying the real harms and placing them at the forefront of the law, we are able to show that. That goes back to some of the things we were saying a moment ago, namely that strangulation is a particular harm. It is pertinent to domestic killings, as we identified in the review, but it is also something that happens in other misogynistic killings of women. It is important to not just be able to isolate domestic killings of women, but have a policy that encompasses the misogyny that underpins some of the awful offences we have seen in the last few years.

[Alex Cunningham]

That is very helpful—thank you.

[The Chair]

If there are no further questions, I thank the witness on behalf of the Committee. The Committee will meet again at 11.30 am on Thursday 11 January to commence line-by-line consideration of the Bill.

Ordered, That further consideration be now adjourned. —(Scott Mann.)

Criminal Justice Bill (Fifth sitting)

Alex Cunningham Excerpts

Committee stage
Thursday 11th January 2024 Public Bill Committees

[Chris Philp]

I am glad that has met with approval, from Essex at least.

[Alex Cunningham (Stockton North) (Lab)]

That must be the only place where there are extra police.

[Chris Philp]

I am sure it is welcome in Stockton as well—

--- Later in debate ---

[The Chair]

I call Alex Norris.

[Alex Cunningham]

I want to give an example to illustrate exactly what my hon. Friend is saying. My neighbour across the road, who is sadly now deceased, had a number of instances where a person was calling her—from her bank, apparently—to persuade her to move funds to different accounts because they were “checking their security”. She was ready to do that and, had it not been for an alert taxi driver, she would have transferred several thousand pounds from one bank account to another, the latter of those being that of a fraudster. For me, that is a tremendous crime. I think the amount was £6,000. Does that not best illustrate what my hon. Friend the Member for Nottingham North is saying to the Minister?

[The Chair]

I am getting my Alexes mixed up. My apologies to Alex Cunningham; I now call Alex Norris.

Criminal Justice Bill (Seventh sitting)

Alex Cunningham Excerpts

Committee stage
Tuesday 16th January 2024 Public Bill Committees

[Chris Philp]

I will try to respond to some of the points made on this group of amendments and clauses. On mental health, as the national partnership agreement is rolled out, we are asking the NHS to do more to treat people when it is just a medical condition, and that is what the NHS should do, because a medical crisis requires a medical response.

To respond to the point about resources, the NHS is this year receiving an extra £3.3 billion above and beyond what was planned. A lot of extra money is going into mental health specifically, and things such as mental health ambulances and mental health places of safety are being invested in to create the capacity required for the NHS and the ambulance service to take on people who have, in the last few years, wrongly been picked up by the police.

On making sure that the roll-out is done as thoughtfully elsewhere in the country as it has been in Humberside, we are not taking a “big bang” approach; we have not just flicked a switch and said that it is going to happen nationally from tomorrow. Implementation is happening on a force-by-force basis. In each area, the police are working with the local hospital trust, the mental health trust and the ambulance trust to make sure that the capacity is in place before things get switched over.

The roll-out has already happened in some areas. In London, I think it went live on 1 October or 1 November, but it may not be implemented until the end of this year in other areas, because they are going through the process of making sure that the NHS side of the equation has the capacity and is ready. Things are being done in a thoughtful and measured way around the country to replicate the success in Humberside, to which the shadow Minister referred.

I will try to address one or two of the other questions.

[Alex Cunningham (Stockton North) (Lab)]

I did not intend to intervene in this debate, but will the Minister address one issue before he moves on? In my area, the mental health trust is under considerable stress, and there have been various patient deaths and things like that. The mental health services tell me that they are struggling to get professionals to join them so that they can provide what is needed. How can the Minister be confident in what he is saying if we do not have professionals joining the service and are more likely to see them leaving?

[Chris Philp]

We are getting a little way off topic. Briefly, since the shadow Minister has raised the question, the roll-out is happening in a thoughtful way, rather than immediately, to make sure that such issues are addressed. As I said a moment ago, extra money is being put in. The NHS workforce plan, which is now in place, is designed to make sure that the people needed are there to meet the challenges, not just in mental health, but across the whole NHS spectrum.

Fundamentally, we all want to see people who have a mental health condition treated medically. Where there is no criminality and no threat to public safety, it is completely inappropriate to get a police response, which has been happening in recent years. Those people need to be treated, not put in a police custody cell, for example. That is the right thing to do, not just for the police, whose capacity is freed up to protect us and our constituents and to catch criminals, but for patients, who need and deserve a medical response. We are now working to ensure that that happens across the country, building on the successful trailblazer in Humberside, which shows that this can work.

On the question from the shadow Minister, the hon. Member for Nottingham North, about using the negative versus the affirmative procedure in Government amendments 25 and 26, no substantive change is being made. Essentially, changing the list of specified controlled drugs is subject to the negative procedure, the trigger offences are subject to the affirmative procedure and, if the changes are some mix of the two, that is subject to the affirmative procedure. That does not substantively change the current position.

Let me turn to the questions that arose on drug testing outside of a custodial setting. To be clear, we are conferring a discretionary power on the police. We are not compelling them to test; we are leaving it up to the police officer. There may be occasions when, for operational reasons and to test more people, they find it more operationally appropriate to test on the spot outside of a custodial setting. It may be that they do not plan to take the person back to a custodial setting. That will save police time. This is a discretionary power, not an obligation; the police can use it where they judge it to be helpful.

The shadow Minister also asked about time. These tests are not sent away to the laboratory. I accept that we need laboratory tests to be a lot faster, as the hon. Member for Birmingham, Yardley highlighted in her remarks. However, these are on-the-spot tests, similar to those that might be seen in an airport—by the way, I think those are testing for explosives.

Criminal Justice Bill (Ninth sitting)

Alex Cunningham Excerpts

Committee stage
Thursday 18th January 2024 Public Bill Committees

[Laura Farris]

I am sympathetic to the hon. Lady’s point, which I will take away. The purpose of the provisions is to set the framework for future agreements, so of necessity they are deliberately quite widely drafted and do not seek to tie our hands. The hon. Lady’s points are irrefutable; I looked at the issue when I was a member of the Justice Committee.

Domestic powers to transfer individuals to rented spaces such as these do not currently exist in UK law, and the provisions, widely drafted though they are, are essential for the operation of a future agreement. Clause 27 contains provisions regarding the operation of warrants, which are proposed in clause 26. The provisions allow the Secretary of State to appoint individuals to escort prisoners in transit to and from rented prison spaces overseas and to provide those individuals with the powers necessary to exercise those duties.

The provisions are similar to existing transport and escort provisions contained in the Repatriation of Prisoners Act 1984 and are built on long-standing operational practices. They are an essential complement to the powers set out in clause 26 and are necessary for the effective operation of a warrant for transfer. The clause also contains provisions to enable designated individuals to detain prisoners who may attempt to escape or who find themselves unlawfully at large in the process of transit to or from a rented prison space overseas. I commend clauses 25, 26 and 27 to the Committee.

[Alex Cunningham (Stockton North) (Lab)]

I am grateful to the Minister for the introduction to this cohort of clauses, which I will address along with my amendment 64.

As the Minister has outlined, the clauses facilitate the transfer of prisoners in England and Wales to an overseas jurisdiction and make provision to ensure the oversight of any agreement with a foreign country under which the UK prisoners will be held. Sadly, the Bill and accompanying notes do not provide the detail of exactly how the scheme will work, who the partner countries will be, nor where responsibilities will actually lie.

The charity Justice has provided some useful context. It says:

“In advancing his policy the Home Secretary made reference to arrangements which existed between Belgium and Norway on the one hand, and the Netherlands on the other, within the last two decades, as a successful means of increasing prison capacity. In fact, neither was an overwhelming success in terms of either rehabilitation or reduction in prison overcrowding. That is despite the fact that, particularly in the case of Belgium and the Netherlands, there were linguistic and cultural similarities, and geographical proximity. There is no guarantee that this will be true of any future arrangements that the United Kingdom may enter into.

Indeed, it is understood that the Ministry of Justice has been in talks with Estonia about using space in its prisons. While one of these is located in the capital, Tallinn—itself a three-hour flight from London, with no direct flights from elsewhere in the UK—the other two are 150-200km away by road. This is one illustration of the difficulties which will arise in facilitating family visits to those imprisoned abroad wherever they are, and of course access must also be provided to HM Chief Inspector of Prisons, Independent Monitoring Board members and legal representatives.”

I will return to some of those issues later, but perhaps the Minister can share with the Committee which countries the Government are actually negotiating with. More importantly, perhaps she can give us some insight into how the very real barriers to this policy will be addressed.

Amendment 64 in my name and that of the shadow Justice Secretary, my hon. Friend the Member for Birmingham, Ladywood (Shabana Mahmood), proposes limitations on the types of prisoners who can be transferred. My hon. Friend the Member for Birmingham, Yardley has addressed very specifically the issue of women, and I welcome the fact that the Minister has agreed to take that away. I am sure we could support any amendment that she cares to bring forward on Report in order to exclude women from being accommodated abroad.

Others we would have excluded are prisoners with less than 180 days or six months of their custodial period left to serve, those serving an indeterminate sentence of imprisonment or detention for public protection, and those participating in any proceedings before a court, tribunal or inquiry where it is not reasonably practicable for the participation to take place in a prison in a foreign country. Releasing prisoners from foreign prisons back into the community in the UK would also pose severe challenges for probation and other services in ensuring that the necessary resettlement support is in place on their return.

The services and support that prisoners typically need on release include accommodation, welfare and employment support, ongoing treatment of drug and alcohol addictions, and health and social care. Arrangements to effectively monitor and supervise the individual unlicensed in the community also need to be put in place ahead of release. Making arrangements for the provision of these services requires effective co-ordination between the prison offender manager and community offender manager. In England and Wales, both of these roles are provided by His Majesty’s Prisons and Probation Service.

Releasing an individual directly from a foreign prison into the UK would require co-ordination between services based in two separate jurisdictions. That would present considerable logistical challenges and may lead to mistakes being made and the necessary support not being put in place. That could put the individual and others at risk and increase the likelihood of reoffending.

Excluding prisoners with a period of less than 180 days to serve from being issued with a warrant would help ensure that prisoners continue to be released from UK prisons into the community. The sentences of imprisonment for public protection and detention for public protection were abolished in 2012. However, the abolition was not retrospective, which means that thousands of people remain in prison, yet to be released after having been recalled to custody.

The plight of those prisoners, serving a sentence that Parliament has not deemed fit to remain on the statute book, has been well documented in the authoritative report of the cross-party Select Committee on Justice. In 2022, there were nine self-inflicted deaths of IPP prisoners, the highest number of self-inflicted deaths among the IPP prison population since the introduction of the sentence. As of December 2022, there have been 78 self-inflicted deaths of IPP prisoners since the sentence was introduced in April 2005. That is 6% of all self-inflicted deaths during the period. Forcing IPP and DPP prisoners to serve their sentences could further increase the risk of suicide and self-harm if they are accommodated abroad. Furthermore, it would make it extremely difficult for them to access the courses and interventions they need to demonstrate reduced risk and access timely legal advice and support through the parole process.

The amendment would also enable the Secretary of State to exclude a prisoner from being issued with a warrant if they are satisfied that the prisoner should continue to be detained in a domestic prison for the purposes of receiving instruction or training, which cannot reasonably be provided in a prison in a foreign country. That may include prisoners who are engaged in higher education that could only be provided in the UK, or prisoners involved in an employment scheme with the prospect of further training or a job opportunity on release in the UK.

Transferring prisoners abroad would have an impact on a prisoner’s access to legal advice, legal remedies for prison-related issues or their ability to participate in any ongoing legal processes related to their conviction or sentence at home, including the parole process. That is contrary to European prison rule 23 and Mandela rules 41 and 61, which give the right to accessible, timely and confidential legal advice. Being sent abroad would have a significant impact on someone being able to meaningfully participate in any legal process.

There is history in the immigration context of the Government legislating to say that people can pursue appeals against being removed and deported and then having to do so after actually being removed to their home countries. In those cases, the courts have ruled that, in practice, that is not possible and is therefore a breach of the Human Rights Act 1998 and the European convention on human rights. The Law Society has expressed concern that certain groups of vulnerable prisoners could be issued with a warrant to serve their sentence in a foreign country. That includes those with health issues, such as individuals who are pregnant or disabled, and those who have mental health or learning difficulties. There are currently no explicit safeguards or guarantees to protect against that. How will the Minister ensure effective resettlement arrangements under the provisions?

Prisoners with primary caring responsibilities could be issued with a warrant to serve their sentence in a foreign country. Transferring UK prisoners abroad will have a significant impact on their ability to maintain family ties. The Farmer review found family relationships to be the “golden thread” to help reduce reoffending.

There is recognition in the Government’s impact assessment that the policy will need to

“ensure prisoners’ rights to family life are protected in accordance with Article 8 of the European Convention on Human Rights, including access to visitation on par with what would be provided in HMPPS.”

However, the impact assessment goes on to say:

“It has not been determined who would bear the cost of these visits.”

Can the Minister offer any clarification on who is expected to foot the bill? Does she expect the children or the families of those imprisoned abroad to have to finance a trip abroad to visit their loved ones? Families and loved ones already struggle to meet the cost of visits to prison in the UK and they are unlikely to be able to meet the additional costs or logistical challenges involved in visits abroad. Imagine somebody having to spend five hours travelling to a foreign prison for a one-hour visit and then having to spend another five hours travelling back. That is total nonsense.

--- Later in debate ---

[Laura Farris]

I will continue a little more. We are undertaking the biggest prison building exercise since the Victorian era. We have committed to creating 20,000 new prison places, and have already got 5,700 of those places on stream, but we are not there yet.

The amendment tabled by the hon. Member for Stockton North gives rise to a number of sensible points. Let me distil them: he thinks that prisoners should not be transferred if they are getting near to the end of their sentence, have a sentence of imprisonment for public protection, are going through constructive rehabilitation treatment, or are implicated in some form of criminal proceeding. All those are very sensible ideas, but we respectfully believe that they are best addressed through policy, based on the appropriate expertise from within the prison system, not set out in primary legislation.

In fact, I think the hon. Gentleman made the point tacitly himself. He gave a number of other very good examples, including prisoners who have serious mental health conditions, are pregnant or are someone’s primary carer. All those factors are highly material. Let me reassure him slightly, if I can. To the extent that the exploratory conversations have begun, we are only having them with other European countries. That means that they are bound by the same obligations under the European convention on human rights, which would be material in the types of cases the hon. Member for Stockton North has suggested.

[Alex Cunningham]

Is that a confirmation, then, that no prisoners will be moved to countries not covered by the ECHR?

[Laura Farris]

That is my understanding.

[Alex Cunningham]

With respect to the Minister, this is a fundamental point going forward. As I said in my speech, if prisoners are removed to a country—Rwanda, let us say—they will not have the same protections as they would have if they were moved to Holland. It is important that the Government clarify exactly whether people will be removed to jurisdictions outside the ECHR.

[Laura Farris]

I thank the hon. Gentleman, who makes a fair challenge. I am only aware of exploratory conversations with European countries bound by the European convention on human rights. I understand that there will be no partner country that is not also complying with the European convention rights, but I think he deserves clarity on that point.

[Alex Cunningham]

I appreciate what the Minister is saying; she has been very clear about the point being well made. But if prisoners cannot be removed to a country that is not covered by the ECHR, perhaps that needs to be stated in the Bill.

[Laura Farris]

It is in the Bill that the Bill itself is compliant with the European convention on human rights.

--- Later in debate ---

[Laura Farris]

I reassure my hon. Friend that we are making significant progress on that. It is a good point. There has been an acceleration in that process. I have some data here. Between January 2019 and September 2023, over 16,000 foreign national offenders were removed from the United Kingdom. In the last 12 months alone, that returns rate increased by 20% when compared with the previous 12 months. There has been an acceleration in the returns agreements.

We have also expanded the early removal scheme, so that we can remove FNOs up to 18 months before the end of their sentences. The Home Office has deployed more caseworkers to focus on prison removals; we also have prisoner transfer deals with some countries, including Albania, that are already operational. I want to provide reassurance that that work is continuing at pace.

[Alex Cunningham]

I accept the points about foreign prisoners, but many are European nationals who have families in the UK. We cannot have a one-size-fits-all solution to this situation. I hope the Minister will acknowledge that.

[Laura Farris]

The provisions on the removals of foreign nationals are set out in the 2012 immigration rules; it is section 339 that governs removal. If the sentence has been two years or more, only truly exceptional circumstances would allow them to stay. The simple fact of somebody who has committed a category A or B—

--- Later in debate ---

[Alex Cunningham]

I had hoped to stand here having been reassured that this policy was well thought out and would work. I know that the Government are negotiating with some countries about where we will go, but we do not have the fine detail that we need in order to understand whether this will be an effective policy. I invite the Minister to intervene, because I want her to address a question specifically on the visitation rights of family members and who will foot the bill for families to travel to the Netherlands, Estonia or wherever under their visiting rights. I put that question in my original speech, so I invite her to intervene to answer it.

[The Chair]

My powers may be great, but they are not sufficient for me to compel a Minister to intervene against her will. You are welcome to intervene, Minister, if you would like to do so.

[Laura Farris]

I will have to get back to the hon. Gentleman on that point.

[Alex Cunningham]

I am grateful.

The right hon. Member for Chelmsford made an interesting contribution about gangs. I agree that it is often necessary to move people to different areas to break gangs up—that is absolutely essential. I do not know whether the Government intends that such people would be a popular cohort to be moved abroad to foreign prisons, but perhaps the Minister will address that when she winds up the debate.

The Minister referred at some length to my amendment. I am not convinced that we should not press it to a vote. I will press it, because we cannot rely on policy unless it is written down. My hon. Friend the Member for Birmingham, Yardley said the same and illustrated exactly why we cannot depend on policy. Policy changes all the time, so we need to nail down the provisions in the Bill and who will be included and excluded. Someone may table an amendment on Report in relation to whether women should be sent abroad to serve their prison sentence, but it is important to address the issue of foreign nationals—I spoke briefly about this earlier—who have families here, are in married relationships here and may be European citizens who are entitled to be here. I accept what the Minister says about the two-year threshold and everything else, but we cannot just say that it is okay to send men off to foreign prisons because they are foreigners—that does not wash at all. I will leave it at that, but I would like to press the amendment to a Division.

--- Later in debate ---

Oversight of foreign prisons

[Alex Cunningham]

I beg to move amendment 65, in clause 28, page 24, line 36, at end insert—

“(c) report to the Secretary of State on any breaches of the arrangement made between the United Kingdom and a foreign country.”

This amendment would require the Controller to make a report to the Secretary of State on any breaches of the arrangement between the foreign country and the UK.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 66, in clause 28, page 24, line 39, leave out “may” and insert “must”.

This amendment would ensure that the prisons inspectorate must conduct the duties specified in new section 5A(5D) of the Prisons Act 1952 and ensures its consistency with the legislative basis for its role in England and Wales.

Amendment 67, in clause 28, page 24, line 40, after “prisons” insert “and escort arrangements”.

This amendment would ensure that HM Inspectorate of Prisons can inspect escort arrangements under which prisoners are transferred to foreign prisons. This would bring the legislation into line with inspectorate’s powers in relation to UK prisons and escort arrangements under amendments to the Prisons Act made by the Immigration, Asylum and Nationality Act 2006 (s.46) and ensures scrutiny of an area of evidenced risk.

Amendment 68, in clause 28, page 25, line 3, at end insert—

“(4) In section 1 of the Coroners and Justice Act 2009, after subsection 2(c) insert—

‘(d) the deceased died while in custody or otherwise in state detention in a foreign country pursuant to a warrant issued by the Secretary of State under section 26 of the Criminal Justice Act 2024 (warrant for transfer of prisoner to or from foreign prison).’”

This probing amendment would clarify how the government intends to apply its obligations under Article 2 (right to life) of the Human Rights Act, through ensuring the duties of the coroner also apply to any death involving a prisoner subject to a transfer agreement with a foreign country.

Clause stand part.

[Alex Cunningham]

I have already addressed many of the principles pertaining to the Government’s proposals in this part of the Bill, so I will largely confine my remarks to amendments 65 to 68, with some relating to clause stand part.

Amendment 65 would require the controller to make a report to the Secretary of State on any breaches of the arrangement between the foreign country and the UK. Clause 28 provides for the Secretary of State to appoint a “controller” role to keep under review, and report on, the running of any rented prison spaces abroad. It also extends the power of His Majesty’s chief inspector of prisons to inspect and report on the conditions of any such spaces.

As it stands, the Bill places a great deal of unaccountable authority in the hands of the Executive to make provision for any arrangement by means of secondary legislation. It is silent on how those subject to this arrangement will be treated. Similarly, it provides no guarantee that the prison rules in secondary legislation, which govern crucial issues including segregation, complaints and the use of force, would apply. I would hope that the Government would agree that, given the potential human rights implications, any agreement made between the UK and a foreign state should be subject to full parliamentary scrutiny and oversight, and to guarantees of compliance with existing human rights standards and obligations.

Furthermore, the implementation of any agreement by a foreign state will need careful monitoring and oversight to ensure compliance. It will also be vital to ensure that any breach of the agreement by the foreign state is promptly reported and acted on. Amendment 65 would help to enable that by requiring the controller to report any breaches of the arrangement to the Secretary of State.

The Bill should also be amended to ensure that it is the UK’s responsibility to investigate and bring to justice any ill-treatment or torture, should it occur under this arrangement, in line with the UK’s obligations under the Human Rights Act 1998 and the UN convention against torture. It should also require that any prisoner transferred to serve their sentence in a foreign country would have to be held in and have access to equivalent conditions and the same quality and range of services afforded to prisoners held in England and Wales, as mandated under Prison Rules 1999. As it stands, nothing in the Bill and related documents gives any indication that the same legal standards and rights in relation to treatment of prisoners, as set out in the prison rules, would apply.

I would be obliged if the Minister would address a number of related questions. Will she confirm the need for the operation of the scheme to be under constant review and that Parliament is entitled to reports on how successful or otherwise it is? Will British prison rules apply to UK prisoners sent abroad? Does she accept that it should be the UK authorities that investigate any allegations of ill treatment or torture of prisoners accommodated abroad under her policy?

I know that services, particularly work and access to rehabilitation services, are very limited in UK prisons because of the crisis in the service, but does the Minister agree that any prisoners sent abroad should have access to at least the same level of services as those held at home?

Amendment 66 would ensure that the prisons inspectorate “must” conduct the duties specified in proposed new subsection 5D in section 5A of the Prisons Act 1952, and would ensure its consistency with the legislative basis for its role in England and Wales.

We are concerned that the oversight of both the controller and His Majesty’s inspectorate of prisons will ultimately be subject to negotiation with a relevant partner country. The wording in the Bill relating to the powers of HM inspectorate of prisons differs from the Prisons Act in that it states the chief inspector “may” inspect rather than “shall” inspect. The implication is that inspections could take place only by invitation of the foreign state rather than as a statutory requirement. That leaves open to future negotiation crucial aspects of HMIP’s role and methodology, such as its ability to conduct unannounced inspections, to speak to prisoners in private and to access records such as those relating to the use of force. That would mean a lower standard of independent scrutiny would be applied to the treatment and conditions for UK prisoners held under such arrangements. It would fall short of the UK’s obligations under the optional protocol to the convention against torture and other cruel, inhuman or degrading treatment or punishment—OPCAT—which establishes requirements for independent detention monitoring to be conducted by a national preventive mechanism.

In the UK, the national preventive mechanism was established in 2009 and HMIP is one of the bodies designated to it. Amending the Bill to ensure that HMIP’s role can be performed in accordance with its duties under OPCAT would provide an important safeguard to ensure rigorous independent scrutiny of the treatment and conditions for prisoners held under these arrangements. Will the Minister guarantee that HMIP will be able to conduct its crucial role to the same standards that we would expect for any inspection on home soil, with unfettered access to prisoners, their records and staff?

Amendment 67 would ensure that HM inspectorate of prisons can inspect escort arrangements under which prisoners are transferred to foreign prisons. Clause 28 specifies that the chief inspector may inspect or arrange for the inspection of any prisons where prisoners are detained under an arrangement between the UK and a foreign state. Our amendment would bring the legislation into line with the inspectorate’s powers in relation to prisons in England and Wales by also enabling it to inspect or arrange for the inspection of escort arrangements.

The inspectorate’s powers to inspect escort arrangements were made by amendments to the Prisons Act in section 46 of the Immigration, Asylum and Nationality Act 2006. It is particularly important that the inspectorate should be able to inspect the escort arrangements for the transfer of UK prisoners to foreign prisons. We had a debate the other day about escort arrangements and the security of staff, which comes into play here. How do we ensure the safety of the staff of whichever organisation is moving people from this country to another?

A foreign state with which the UK makes an agreement could potentially be many thousands of miles from the UK. The transfer of prisoners could involve a lengthy journey involving a variety of modes of transport, including potentially prison vans, planes, trains and ferries.

As countless HMIP inspection reports show, escort, particularly when a person is being transferred against their will, can pose a number of risks to prisoners, including the mixing of men, women and children in the same transport—although I acknowledge that children will not be sent abroad; poor information sharing with escort services of the needs and risks presented by prisoners; poor conditions; poor escort safety and lack of seat belts; risk of suicide and self-harm, which may be exacerbated by long journeys under stress; lack of food, drink and comfort stops; poor treatment by escort staff; failure to address health and welfare needs; overuse of restraints with potentially fatal consequences; poor complaints processes and accountability; and damage to prisoners’ property.

The potential for trouble appears limitless. I hope that the Minister will recognise that she needs to act now to ensure all the necessary processes are in place to make sure that it is contained. Failure to do so could result in all manner of actions against the Government, including civil actions by prisoners who could well have grounds for going to court because they have not been treated properly in line with the UK law under this new policy.

12.30 pm

I turn to amendment 68. This probing amendment would clarify how the Government intend to apply their obligations under article 2 on the right to life of the Human Rights Act, through ensuring that the duties of the coroner also apply to any death involving a prisoner subject to a transfer agreement with a foreign country.

It is our view that the nature of the arrangement to send individuals to overseas prisons will establish the UK’s jurisdiction over any deaths that occur. Given the unprecedented nature of these arrangements, it is crucial that the responsibility of coroners to investigate overseas deaths be established clearly in advance, otherwise it would invite significant uncertainty and likely legal challenge if any individual were to die while imprisoned overseas. Furthermore, such a move will ensure that the coronial system is prepared to address the practical challenges of holding such an inquest, which are likely to include challenges in obtaining evidence and witness statements.

I move on to my comments on clause stand part. I am well aware that there is a school of thought that says that prisoners give up their rights to everything when they commit a crime and are deprived of their liberty, but I hope the Minister will agree with me that they do have rights and we have a responsibility to ensure they are not deprived of them, whether in a prison on home or foreign soil. It is critical that we nail down exactly how UK systems will be implemented abroad. I see that as all but impossible if we do not specify in the Bill the necessary requirements for that to happen.

The Minister is likely to say that we have to have a level of trust in the agreement with any foreign Government to stick to the standards required, but I am not so sure it is as simple as that. There will be huge costs associated with what may well just be a Government experiment—costs relating to travel and escort services, the fees to the receiving prison, potential costs for families of prisoners to travel abroad to visit, plus all the costs related to managing, inspecting and reporting on the services provided.

Put simply, the choice to send British prisoners abroad is a serious endeavour that requires meaningful protections to prevent abuses. It is also likely to come at substantial cost to the taxpayer, with the Government’s own best estimate of cost being £24.4 million per year to house a tiny number—600 prisoners. That amounts to £40,700 per prisoner, approximately £8,000 less per prisoner than to house them in a domestic prison: figures which are difficult to reconcile given that incidental costs like transportation will be additional to ordinary prison expenditure.

In any event, the proposal is going to create only a small number of spaces, meaning that it is not just an easy answer to the overcrowding crisis. Rather, if prisoners end up being mistreated or are simply unable to engage in rehabilitation and other processes that can help get their lives back on the straight and narrow, it could lead to more problems than it solves.

If the Minister is not prepared to accept our amendments, I ask her to take them away and consider exactly how she will fulfil her duties under the law in relation to UK prisoners accommodated abroad, and perhaps bring forward her own amendments on Report, which we would happily consider.

[Laura Farris]

I thank the hon. Member for his amendments, which I will address before turning to clause 28. I hope that nothing we have said and nothing that appears in the Bill would suggest for a moment that any of the 600 prisoners who end up being transferred to a foreign prison would not have their human rights respected. We remind the hon. Member that prisoners remain the responsibility of the Secretary of State. Although the matter of the exact arrangements will need to be negotiated, we are committed to ensuring parity for prisoners—that they have access to the same regime and the same rehabilitation opportunities—as part of any agreement.

I thank the hon. Member for his views on performance management mechanisms. We agree that they need to be in place. The controller role stands alongside our wider plans for robust and effective scrutiny mechanisms, including making arrangements for independent inspection and monitoring in rented prison places. The UK-appointed controller will be responsible for reporting to the Secretary of State on the running of a rented prison via HMPPS performance-monitoring mechanisms, and will be expected to report to the Secretary of State on the running of a rented prison overseas. I want to provide some reassurance that we have begun the process of engaging a number of existing inspection monitoring bodies in England and Wales to discuss how best that service might be provided.

My second point is that we are committed to ensuring that Parliament has appropriate opportunities to scrutinise any treaty that we negotiate with a partner state. Our current intention is that any future treaty establishing rental arrangements, including monitoring and control, would be subject to ratification, which would of course be subject to further scrutiny by Parliament, according to the procedure set out in the Constitutional Reform and Governance Act 2010.

On amendment 66, clause 28 currently only extends the inspectorate’s remit and does not place an obligation on it to inspect rented prisons overseas, as the shadow Minister pointed out, but we fully agree that rented prison places must be subject to effective inspection and we are ensuring that an appropriate inspectorate will be able to conduct such inspections. That commitment is made with due regard to the inspectorate’s need for operational independence and freedom of access to prisoners, including in private as the shadow Minister described, and to prison facilities. We are considering the logistical realities that that kind of access implies.

We are already working with HM inspectorate of prisons to discuss how best to ensure that the inspections will take place. The exact arrangements will be subject to negotiation and agreement with a partner country, at which point, if necessary, we can confirm what the law ought to say on this matter and make amendments as necessary using the delegated power that we are seeking in clause 29.

[Alex Cunningham]

The Minister just said that these rights and arrangements would be “subject to negotiation”. Could she explain what she means by that? Does that mean that some rights and arrangements may well not be available to prisoners or to inspectors in carrying out their duties?

[Laura Farris]

We are committed to ensuring that any foreign prison will be subject to an inspection arrangement; it is simply the terms of that inspection arrangement that we are not putting into primary legislation.

Amendment 67, tabled by the shadow Minister, is important. Arrangements for the independent inspection of escort arrangements in England and Wales already engage HM inspectorate of prisons to some extent, and the Prison Act 1952 allows the Secretary of State to investigate any matter connected to prisoners and prisons in England and Wales. We are committed to ensuring that effective scrutiny of escort arrangements is in place but, again, the exact terms of the arrangements are yet to be concluded and it is inappropriate to attempt to distribute specific responsibilities without prior agreement.

Amendment 68 addresses deaths in custody. This is an important point and must be subject to high-level scrutiny. That is especially true where there may be a death in custody that occurs overseas. This matter will be of primary importance to us during negotiations with any partner country. We are committed to ensuring that we are able to comprehensively investigate any deaths that may occur in rented prisons overseas.

This subject is a prime example of how we intend to use the delegated power we are seeking in clause 29. Once we have agreed arrangements with a partner country, we intend to use our delegated power—by potentially extending the remit of relevant bodies in England and Wales, for example. Until those arrangements are finalised it would be inappropriate to bind any potential body or person, including coroners, in law.

We are also committed, of course, to upholding the human rights of prisoners, including their rights under articles 2 and 3 of the European convention on human rights. That is legally binding on us, and those are absolute rights. We are currently considering only entering into arrangements to rent prisons from countries that can demonstrate that their prison conditions and capabilities—including for death investigations—comply with that same human rights law and our expectations on the fair treatment of prisoners.

On the basis that this is an important issue for future negotiations, or is non-negotiable given our international obligations, it is too early to begin considering how issues such as death investigation will be accounted for without first making precise arrangements with a partner country. I therefore urge the hon. Member for Stockton North to withdraw this amendment and to not press the other amendments in his name in this group.

I will speak now to clause 28, which concerns oversight arrangements for rented prison spaces. I have said already that the clause establishes a duty on the Secretary of State to appoint a controller. I have also set out their responsibilities for ensuring that any prisoner transferred to a foreign prison will be returned before the end of their sentence to allow for sufficient time for resettlement and reintegration back into the United Kingdom before release.

Clause 28 also extends the remit of His Majesty’s inspectorate of prisons to allow for inspections of any rented prison spaces overseas and subsequent reports to the Secretary of State on their findings—respecting their operational independence. Consideration of prison conditions and the treatment of prisoners has been, and will remain, central to our decision making.

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[Laura Farris]

I think it would have to be part of the planning for any prisoner who was going to be transferred for there to be space for them to be returned, because that is part of the policy—that they will be brought back into a domestic prison before release so that there can be proper engagement with the parole and probation services. That is, as hon. Members would expect, to facilitate a smooth release back into the community, as with any prisoner.

We are mindful of the need to ensure that effective inspection and monitoring provisions are in place. While the exact arrangements will be subject to future negotiation, we will ensure that those are sufficient, and they will also be subject to further parliamentary scrutiny. I commend clause 28 to the Committee.

[Alex Cunningham]

I have listened carefully to what the Minister said, and an awful lot of it seems to be about something that might happen in the future or be subject to negotiation. Many of the measures that we are pushing for are in our amendments; as I said, I invite the Minister to take the amendments away and consider them in some detail. Being “subject to negotiation” is not good enough. We actually need to know that the necessary access or protections will actually be in place.

I will not press any of the amendments to a vote—with the exception of amendment 66, because I think that the inspector must carry out the necessary inspection. I accept that the Minister said that that is the intention, but “intention” is not good enough; that provision needs to be in the Bill. I beg to ask leave to withdraw amendment 65.

Amendment, by leave, withdrawn.

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[Laura Farris]

Before I come on to clause 29, I want to address one point made by the shadow Minister, as this is part of the same family of clauses. The reference to negotiation does not mean that things like inspection and equivalent conditions themselves are a matter for negotiation—in other words, that we might not have any of those things. We are going to insist on all those things, but the terms are the matter for negotiation—what the inspection regime would look like, for example. It is not that we would not be monitoring what happens in a rented prison space overseas. The mandatory language in clause 28(1) about the use of a controller goes to that on the issue of oversight.

[Alex Cunningham]

I am really quite interested because the issue is about negotiations. Is the Minister actually saying that there will be no agreement with any country that cannot provide the same standards of service, accommodation and access that a person would have in the UK?

[Laura Farris]

I cannot say that the programme would be exactly the same, but we are looking for equivalence. We even set out in the Bill that there will be a supervisory arrangement already, and I talked in the previous debate about what inspection would look like and who we are engaging on that.

Clause 29 creates a delegated power that would allow the Government to make future legislative amendments strictly for the purposes of implementing a future prison rental agreement. We are currently in exploratory talks with potential partner countries, but, as previously noted, formal negotiations have not commenced. While we have sought to draft broad enabling provisions that will facilitate any future arrangements, it is impossible to be certain on what legislative changes will be necessary to give effect to the agreements prior to the conclusion of negotiations and the subsequent agreement with a partner country on those terms.

For that reason, we are seeking a delegated power that will allow us to amend legislation for the sole purpose of complying with the terms of any future prison rental agreement that we sign. That is to ensure that the UK is able to swiftly comply with our obligations under such agreements. Parliament will have the opportunity to scrutinise our proposed use of any delegated power by means of the proposed affirmative procedure when amending primary legislation. That will ensure that Parliament may be content that such amendments are made pursuant to future prison rental agreements.

It is not possible, at this stage, to anticipate the outcomes of any negotiations, and any anticipation could significantly bind negotiating power. It is also not clear which matters will remain the responsibility of the Government and which will fall to other jurisdictions. Without this delegated power, further primary legislation would need to be taken through Parliament at the conclusion of individual negotiations to implement the international agreements. That would impact the Government’s ability to act swiftly.

The delegated power forms an essential part of the future-proofing framework that we have designed to accommodate future negotiations and arrangements with partner countries. It ensures that Parliament will still have sufficient opportunity to scrutinise the use of the powers and to feel content that the powers are strictly limited to use further to prison rental arrangements agreed with the partner country.

[Alex Cunningham]

My concerns are the same as those I expressed about previous clauses. I remain concerned that items not in the Bill are being delegated to secondary legislation. We are not going to oppose the clause, but the Minister needs to bear in mind all the things that have come before and to reassure us that there will not be any abuse here, as what should be important primary legislation is being pushed upstairs to a Delegated Legislation Committee.

Question put and agreed to.

Clause 29 accordingly ordered to stand part of the Bill.

[Laura Farris]

On a point of order, Ms Bardell. What are the timings for this morning’s sitting?

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[The Chair]

The timings I was given were that the Committee would run until 1.30 pm, but it is a matter for the Whip.

[Alex Cunningham]

On a point of order, Ms Bardell. We have just completed a very distinct section of the Bill and we are within seven or eight minutes of the 1 o’clock deadline. I wonder whether it would be in order for me to invite the Government Whip to move the adjournment.

[The Chair]

The hon. Gentleman is timely and generous.

Criminal Justice Bill (Tenth sitting)

Alex Cunningham Excerpts

Committee stage
Thursday 18th January 2024 Public Bill Committees

[Jess Phillips (Birmingham, Yardley) (Lab)]

I have just said that I would not contribute because I want to get off, but obviously I have not stuck to that. How many people will this clause bring in line with the law? We have some evidence from Refuge, which I cannot put my finger on right now—I am sure I will be able to manage that in a moment. I know and remember from the evidence sessions that a tiny, tiny fraction of people receive a sentence of more than 12 months in cases of coercive control. Would the Minister provide us with some understanding of exactly what this groundbreaking realignment of the law will actually bring about?

We still fail to recognise, though we must recognise it, that no one is convicted in the vast majority of cases of coercive control, domestic abuse-related crime or sexual violence. The monitoring that is needed must come before the instance. Schemes are currently being run by the Metropolitan police around the 100 highest priority at-risk offenders. In reality, however, although I am delighted that the Minister heralded some previous amendments of mine in a Bill Committee not dissimilar to this one—she is welcome—that is not what we are talking about in this clause. If it is more than 200 people, I would be surprised to hear that. I will find the data while she responds.

The Government are proposing legislation that allows us to monitor people as we do for terrorism, but in cases of terrorism no convictions are needed to undertake the type of monitoring that we hope our security services are doing day in, day out to prevent terrorism. To suggest that monitoring will happen only on conviction is absolutely not in line with terrorism. We still have a two-tier system, where the actual domestic terrorism that occurs in people’s homes is still very much allowed to happen.

[Alex Cunningham (Stockton North) (Lab)]

The clause makes a straightforward amendment that would provide for the automatic, rather than discretionary, MAPPA management of offenders convicted of controlling or coercive behaviour in an intimate or family relationship who are sentenced to 12 months or more. As a result, such offenders will be treated as category 2 rather than category 3 offenders for MAPPA purposes.

It should come as no surprise to the Government that we enthusiastically support the clause. Labour has committed to halving incidents of violence against women and girls within a decade. For far too long, those dangerous criminals have been let off and victims have been let down. Indeed, the multi-agency public protection arrangements were introduced by the last Labour Government in 2001 under the Criminal Justice and Court Services Act 2000, being strengthened again in the Criminal Justice Act 2003. Those arrangements see the police, probation and prison services working together to ensure the proper management and monitoring of sexual or violent offenders. In a joint thematic inspection of MAPPA, I have seen them called

“one of the success stories of the criminal justice system”.

The inter-agency approach of MAPPA improves public protection by bringing together criminal justice organisations, as well as others, in a structured way to address and actively manage the behaviour of offenders who can sometimes be difficult to accommodate and who may pose serious levels of risk. Labour is in complete agreement with the Government that perpetrators of coercive and controlling behaviour should be brought more directly under the remit of MAPPA. As Women’s Aid said, this signals that the crime of coercive and controlling behaviour, which is central to so much domestic abuse, is being taken more seriously by the justice system. As it also points out, bringing CCB offenders automatically under the remit of MAPPA is particularly important given the links between coercive control and homicide.

For cases where there is high risk of domestic abuse, the active management and inter-agency engagement that MAPPA provides can be an effective response. However, a report by His Majesty’s inspectorate of constabulary and fire and rescue services in 2021 identified a lack of multi-agency management of individuals who posed the most significant risk of harm to women and girls through domestic abuse. As part of the inspection, HMICFRS asked forces to identify the five individuals whom they considered posed the highest threat to women and girls within the local force area. Of the 40 individuals identified, only three were being managed under MAPPA.

Additional guidance for category 3 offenders who are perpetrators of domestic abuse has been welcome, but HMICFRS noted in its 2022 MAPPA review that there

“is still not a clear enough pathway for those who pose a risk of harm through domestic abuse, particularly for those who commit lower-level offences over a sustained period of time but pose a real risk of harm to their victims through long-term abuse.”

The impact that the clause might have, while welcome, as my hon. Friend the Member for Birmingham, Yardley said, is relatively limited, given the number of individuals who have been convicted of coercive and controlling behaviour since the introduction of the offence in 2015. Fewer than 2,000 people have been convicted of that offence, and yet—I think this is probably one of the most important points that I will make during this Committee—the data from the crime survey in England and Wales estimates that 2.1 million people experienced domestic abuse in the year ending 2023. Not every case of domestic abuse will include instances of coercive and controlling behaviour, but given the centrality of such offending behaviours in many cases of domestic abuse the number of CCB convictions still appears very low. Since the provision will apply to that relatively small cohort of offenders, it is difficult to discern what huge impact it will have.

I am interested to hear from the Minister about any additional provisions that her Department has been looking at in preparation for the Bill in relation to MAPPA and perpetrators of domestic abuse, particularly if it has looked at other measures that would make individuals who have committed domestic abuse MAPPA-eligible, because repeat perpetrators of this appalling violence against women and girls too often get away with their patterns of criminality and go on to commit more violence and cause more harm.

As I said, we fully support the clause and will vote with the Government, but we fear the level of impact that it will have. The criminal justice system is in crisis, and the Government are completely failing to address the shocking levels of violence against women. As with much of the Bill, we do not oppose the measures, but we are left wondering if these tweaks are all that the Government have to offer a system in crisis.

[Laura Farris]

I thank the shadow Minister for his speech and for supporting the clause. In answer to his final criticism that we have abandoned women and girls, the Serious Crime Act that created the offence of coercive, controlling behaviour received Royal Assent in February 2015. With respect to the hon. Member for Birmingham, Yardley, it predates her arrival in Parliament, but we created that criminal offence and we have been evolving its implementation since.

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[Laura Farris]

I don’t—[Interruption.] Yes, it has.

The clause extends eligibility for polygraph testing to offenders who have been convicted of murder and are assessed as posing a risk of sexual offending on release. It extends eligibility to those who are serving multiple sentences where the index sex offence will already have expired. To give a rather grim illustration of what that might look like, if somebody is sentenced for convictions of rape and murder, by the time of their release the sentence for the sex offence will have expired, and they would therefore not automatically qualify for polygraph testing without the extension that the clause provides.

The clause also extends polygraph testing to a cohort of individuals who have received non-terrorism sentences. At this point, I want to pick up on what Jonathan Hall told the Committee in evidence just before Christmas. This measure could apply, for example, in the case of someone who was convicted of conspiracy to murder but whose offences were an act of terrorism, took place in the course of an act of terrorism or were committed for the purposes of terrorism, if they committed their offences before the relevant legislation came into force.

The way in which we make that assessment will depend on the judge’s sentencing remarks. If, in sentencing, the judge made an express reference to the offending being in the course of terrorism, the extension provided by the clause would make polygraph testing applicable. We define this cohort as historical terrorism-connected offenders, and the polygraph testing licence condition is currently unavailable as a tool to manage the risk that they pose, although it would be available for an individual who commits the same offence today.

The intention of the clause is to fill the gap and provide more effective risk management in the community. I reassure the Committee that that does not mean that the person can be recommitted to prison. It is an assessment of their licence conditions. It affects their risk management. If it should later transpire that they have breached licence conditions, they could be recalled, but not by the polygraph test alone. As a whole, the clause will ensure that polygraph testing can be used to strengthen the management of those who pose a risk of sexual offending and those who committed historical terrorism-related offences.

[Alex Cunningham]

In his evidence to the Committee, Jonathan Hall said:

“In fact, if you look at the wording of the Bill, the Secretary of State will be allowed to be ‘satisfied’—not beyond reasonable doubt, just satisfied—on exactly the same test that currently applies to judges”

in determining whether the test should be taken. He went on to say:

“There is obviously a fundamental issue there, which I can expand on, but there is also a really practical issue, because what is a terrorism offence is not always very obvious.”—[Official Report, Criminal Justice Public Bill Committee, 12 December 2023; c. 66, Q170.]

He was clear that the clause might not have all the bolts and washers that it needs to be totally effective.

Nevertheless, I thank the Minister for introducing the clause. As she said, it will allow the polygraph condition to be imposed where the Secretary of State considers that an offender convicted of murder

“poses a risk of committing a relevant sexual offence on release”,

and where an offender is

“serving a relevant custodial sentence in respect of an offence who…at an earlier time during that sentence was concurrently serving a relevant custodial sentence in respect of a relevant sexual offence”.

It will also extend the use of polygraph conditions for terrorist offenders by enabling the Secretary of State to extend polygraph conditions to offenders where the Secretary of State is satisfied—just satisfied: this was the issue that Jonathan Hall was concerned about—that the offence

“was, or took place in the course of, an act of terrorism, or…was committed for the purposes of terrorism.”

Labour supports the clause. Where polygraph conditions have proved to be effective with certain offender cohorts, we should certainly be enabling the courts to impose such conditions to improve public protection. The extensions included in the clause are sensible additions to the scope of polygraph conditions.

We are also happy to support the Government amendments to the clause. They clarify some matters in relation to service offences and offences with alleged terrorism connections in Scotland. I would be interested if the Minister could share any additional recent evidence that she may have of the effectiveness of polygraph conditions on public protection, particularly if there are any ongoing assessments by her Department of the current use of polygraph conditions in England and Wales. Conducting polygraphs can be an expensive and time-consuming process, so I am sure the Minister will agree that we need to ensure that there is a robust evidence base to show that expanding the conditions will contribute further to public protection.

Although we support the clause, I am left to ask the Minister: is this all there is? Offender management has been in disarray for years, especially following the failed structural reforms through which the Government have dragged it. The Public Accounts Committee said that the probation service was

“underfunded, fragile, and lacking the confidence of the courts.”

That was even before the additional serious challenges that it has faced throughout and following the pandemic.

The chief inspector of probation noted that the high-profile independent reviews into the supervision of the likes of Damien Bendall and Jordan McSweeney found

“broader systemic issues in both cases which we are seeing time and time again, both in our local probation inspections and thematic reviews. These included: overloaded practitioners and line managers with well above their target workloads; significant delays in handing over cases from prison to community probation staff, resulting in last minute and inadequate release planning; and incomplete or inaccurate risk assessments. This is the case at both the court stage and start of supervision, with very inexperienced staff being handed inappropriately complex cases with minimal management oversight.”

That is the reality of our probation service today. It is another criminal justice agency in deep crisis.

A properly functioning probation service—I will say more about this on a later clause—is essential to keep the public safe by managing the risk of offenders in the community. The Government have brought yet another justice Bill before us and have given themselves another chance to improve the probation service and provisions around offender management. The Minister will probably talk about the new investment in the probation service, but we have to set that in the context of the huge cuts that the service has suffered since the current Government came to power in 2010. They have missed a lot of opportunities with this Bill. As I said on the previous clause, the offender provisions in the Bill are so slight that their impact will be negligible.

We are seeing a Government who have simply run out of ideas and are not doing enough to keep our communities safe. Although we fully support the clause, I again put on record our disappointment at the lack of ambition that the provisions show when our justice system is in chronic and intractable crisis.

[Laura Farris]

On Jonathan Hall’s comments, there are two points to make. First, given his expertise, it is relevant to consider what he said about polygraphs in general, which is that

“polygraph measures for released terrorist offenders are a good thing.”––[Official Report, Criminal Justice Public Bill Committee, 12 December 2023; c. 64.]

You asked for an updated example of where polygraph testing had been instrumental, and he gave an example—in fact, I do not think it had been used—when he said:

“I was in favour of polygraph measures after Fishmongers’ Hall. It was partly on the back of one of my recommendations that polygraph measures were brought in. They always, or at least for a long time, existed for sex offenders. You will recall Usman Khan, who was clearly a very deceptive man. My view was that polygraph measures could be useful.”––[Official Report, Criminal Justice Public Bill Committee, 12 December 2023; c. 66.]

It is difficult to prove a negative, but they were brought in shortly after that.

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[The Chair]

Order. I gently remind members of the Committee, from Ministers down, that when you use the word “you”, you are referring to me. You must refer to the hon. Gentleman either by his constituency or by his title, otherwise I might get a bit worried about what I have been up to.

[Alex Cunningham]

The Minister will know that we are very supportive in this entire area, but we have the right to highlight the issues that others have raised with the Committee. Jonathan Hall talked about the powers to carry out tests for people who may have served a sentence for a terrorism offence abroad and who return to this country. He went into some detail about that in his evidence. The Minister said that it is important that we have as strong a law as possible in the UK. On the overseas powers, Jonathan Hall’s final sentence was:

“Slightly ironically, the power that Parliament is being asked to create here would make the protections available to a domestic offender less than those that apply to a foreign offender.”––[Official Report, Criminal Justice Public Bill Committee, 12 December 2023; c. 65, Q170.]

That is why the Minister needs to look again at the aspects that she has outlined. Clearly Jonathan Hall thinks that they could be strengthened.

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[The Chair]

I call the Minister—sorry, the shadow Minister, Alex Norris.

[Alex Cunningham]

It will not be long until he is.

[Chris Philp]

That is a bit of wishful thinking.

--- Later in debate ---

[Chris Philp]

I would like to remain popular with colleagues, so I will not do that.

The Government amendments relate to clauses 34 to 37, which seek to strengthen the operation of serious crime prevention orders. SCPOs are a powerful tool for preventing and disrupting the activities of the highest-harm criminals involved in serious crime. However, they are not currently being used to maximum effect and their use is significantly lower than was when they were introduced in the Serious Crime Act 2007.

As drafted, clauses 34 to 37 apply to England and Wales only. Having consulted the Northern Ireland Department of Justice, we tabled the amendments to extend the application of the clauses to Northern Ireland, which will ensure parity between England and Wales and Northern Ireland when it comes to SCPOs. Scotland will keep the existing regime, as set out in the 2007 Act, whereas Northern Ireland will benefit from the various provisions of clauses 34 to 37. In particular, I draw the Committee’s attention to the express power for courts to impose electronic monitoring; the opportunity for a wider range of frontline agencies to apply directly to the High Court for an SCPO; the introduction of a prescribed set of notification requirements for these orders; and the enabling of the Crown court in Northern Ireland to make an SCPO on acquittal where the two-limb test is met.

Ideally, we would apply these measures on a UK-wide basis. However, at the request of the Scottish Government, they will not be extended to Scotland at this time. I think it would be better if they were, but on this occasion we will respect the request made by the Scottish Government. However, we have considered how we can manage the differences in regime between Scotland and the rest of the UK once the measures come into force.

Scotland will, of course, continue to benefit from the existing SCPO regime under the 2007 Act, and in instances where an SCPO made in England, Wales or Northern Ireland is breached, the offender will not be able simply to flee to Scotland. The offence of breaching an order, as set out in the 2007 Act, remains a UK-wide offence, so enforcement against breach continues on a UK-wide basis. The exception to that will be in breaches of the prescribed notification requirements in clause 36, as the offence of not providing that information will apply to England, Wales and Northern Ireland but not to Scotland.

That is the substance of the amendments. As for the substance of clause 34 itself—I think that we will talk about clauses 35, 36 and 37 separately—it provides an express power for the courts to impose an electronic monitoring requirement as part of an SCPO. Tagging the subject will be used to monitor their compliance with various relevant terms, such as an exclusion zone or a curfew, and that will make the orders more effective. They are strengthened in other ways too, but those ways are set out in clauses 35 to 37, which we will talk about later. Clause 34 provides for those electronic monitoring or tagging obligations to be imposed as part of the SCPO.

[Alex Cunningham]

I am sure that the Government Whip, in particular, will be pleased to know that I am going to make one speech to cover clauses 34 to 37, and it is relatively brief.

Clauses 34 to 37 make several amendments to the Serious Crime Act 2007, in relation to serious crime prevention orders, that will apply to England and Wales only.

[The Chair]

Order. We are debating clause 34. I know that the clauses are connected, but there will be separate debates on clauses 35, 36 and 37. I wonder whether the hon. Gentleman could concentrate on clause 34 and all the amendments to it. I will call him again at the appropriate time if he wants to make points specific to clauses 35, 36 or 37.

[Alex Cunningham]

I will be guided by what you say, Dame Angela.

We support the changes proposed in relation to clause 34 on electronic monitoring requirements. We recognise, as the Minister did, that SCPOs can be a powerful tool for disrupting the activities of the highest-harm serious and organised criminals. The orders are not currently being used to maximum effect and clause 34 amends the 2007 Act to strengthen and improve their functioning. Applications to the High Court have been significantly lower than anticipated since the 2007 Act was passed. The idea is to streamline the process for the police and other law enforcement agencies, place restrictions on offenders or suspected offenders, and stop them from participating in further crime.

As I have said before—it is particularly pertinent to clause 34—the Government have recognised the Bill’s many weaknesses, evidenced by the many amendments they have tabled. In fact, I do not recall, having scrutinised half a dozen justice Bills, seeing seen so many amendments to one clause. Even with the amendments, the Bill will not bring about the changes necessary in the light of the crisis in our probation system, which will have a major role to play in the work created by this clause. I recognise what is, in fact, the replacement of funding to the probation service outlined by the Under-Secretary of State for Justice, the hon. Member for Newbury. I acknowledge that we also now have additional staff—4,000 people. That is very good news, but the probation service is still playing catch-up, and the people recruited are of course very inexperienced in comparison with those who have left the service.

It was not so many years ago that the then Justice Secretary, the right hon. Member for Epsom and Ewell (Chris Grayling), implemented a disastrous privatisation of the service, and it has been under a huge strain ever since. Even with the partial reversal of those reforms in 2021 with the partial renationalisation of probation, the service is still facing huge challenges and pressures due to a host of issues. That impacts very much on the work introduced by the clause.

I will quote directly from a report from the chief inspectorate that contains important context. It states:

“We’ve found chronic staff shortages in almost every area we’ve visited and poor levels of management supervision – as well as large gaps in whether the needs of people on probation that might have driven their past offending are being met.

It swiftly became clear that the service was thousands of officers short of what was necessary”—

I acknowledge that more have been more recruited—

“to deliver manageable workloads under the new target operating model for the re-unified service…68 per cent of probation officers and 62 per cent of PSOs rated their caseloads as being… ‘unmanageable’”.

Against that backdrop, does the Minister expect these changes to fulfil their statedobjectives?

Furthermore, the outgoing chief inspector of probation, Justin Russell, reported in September that

“chronic staffing shortages at every grade…have led to what staff report perceive to be unmanageable workloads”.

The Government frequently boast about the funding put into the recruitment of staff and having beaten their target of recruiting 1,000 trainee probation officers. However, that should not distract from the huge problems around retention and burnout in the service. The probation system’s own case load management tool shows that probation officers are working at a case load of between 140% and 180% of their capacity. It should be 90% 95%, so half the current load, for staff to do their job effectively.

In the year to March 2023, 2,098 staff left the probation service, which is an increase of 10% on the year before. Two thirds of those had five or more years’ experience; 28% of probation officers who left in 2023 had been in service for less than four years, so something clearly needs to be done to recruit and retain staff; and 19% of trainee probation officers recruited in 2021 have left the service.

The staffing shortages and retention issues put a strain on those doing more work than they can manage. In 2022, 47,490 working days were lost due to stress among probation staff; the average working-day loss per staff member due to stress was two days. We know that that has an impact on public safety. The recent report by Justin Russell warned about the impact that cuts to probation were having and said that there was “consistently weak” public protection. That followed a similar report in 2020.

In the cases of Damien Bendall and Jordan McSweeney, we saw the impact of the poor conditions facing probation. In both cases, incorrect risk assessments meant that junior probation officers were dealing with offenders who should have been classed as a high risk. The Government’s impact assessment states:

“There is insufficient data with which to monetise the benefits of this measure”.

Can the Minister address whether data collection in this department could do with improvement?

The impact assessment for the Sentencing Bill, which is being scrutinised in parallel to this Bill, shows that the case load for probation will increase by between 1,700 and 6,800. That will cost around £3 million for probation, with a running cost of between £3 million and £4 million a year—a good measure, with real costs and issues behind it. I look forward to the Minister’s response.

[Chris Philp]

Many of the questions concerning the probation service are for the Ministry of Justice, not the Home Office, but I know that the Ministry of Justice is investing more resources. Now that the probation service has been effectively renationalised, there is a lot more direct control over its activities and some of the quality problems that arose a few years ago. It is worth saying that it is not the probation service that manages SCPOs, but the National Crime Agency, but I wanted to offer the hon. Gentleman reassurance about the probation service.

The National Crime Agency supports these measures. In last two years, between 2021-22 and the current financial year, 2023-24, there has been a 21% increase in its budget from £711 million to £860 million, giving it quite a lot of bandwidth to monitor these orders. The issue, really, is getting more orders made, but the monitoring of them is also important, as the shadow Minister says.

Amendment 84 agreed to.

Amendments made: 85, in clause 34, page 27, line 18, after “Wales” insert “or Northern Ireland”.

See the explanatory statement to amendment 84.

Amendment 86, in clause 34, page 27, line 28, at end insert “—

(a) where the order is made in England and Wales,”.

This amendment is consequential on amendment 87.

Amendment 87, in clause 34, page 27, line 30, at end insert—

“(b) where the order is made in Northern Ireland, must be of a description specified in an order made by the Department of Justice under Article 40(3) of the Criminal Justice (Northern Ireland) Order 2008 (N.I. 1).”

This amendment provides that the person responsible for conducting electronic monitoring must be a person specified by the Department of Justice under Article 40(3) of the Criminal Justice (Northern Ireland) Order 2008 (N.I. 1).

Amendment 88, in clause 34, page 28, line 23, leave out “The court” and insert

“A court in England and Wales”.

This amendment sets out the requirements to be satisfied for a court in England and Wales to impose an electronic monitoring requirement. It is limited to England and Wales because electronic monitoring is available throughout Northern Ireland.

Amendment 89, in clause 34, page 28, line 29, leave out “In” and insert “For the purposes of”.—(Chris Philp.)

This amendment clarifies that the definitions in new section 5C(5) are relevant to subsection (4)(a) (but the defined terms are not all set out in subsection (4)(a)).

Clause 34, as amended, ordered to stand part of the Bill.

Clause 35

Applicants for an order: England and Wales

Amendments made: 90, in clause 35, page 30, line 16, leave out “the appropriate court” and insert “a court or sheriff”.

This amendment restates the position under sections 8 of the Serious Crime Act 2007 in relation to applications for serious crime prevention orders to the High Court of Justiciary or the sheriff in Scotland under section 22A of that Act.

Amendment 91, in clause 35, page 30, leave out lines 32 and 33 and insert—

“(ii) the Director of the Serious Fraud Office,

(iii) the Director General of the National Crime Agency,

(iv) the Commissioners for His Majesty’s Revenue and Customs,

(v) the chief officer of police, or

(vi) the Chief Constable of the Ministry of Defence Police, and”.

This amendment provides that the persons listed in the amendment may apply to the High Court in Northern Ireland for a serious crime prevention order.

Amendment 92, in clause 35, page 30, line 34, leave out from “by” to end of line 39 and insert

“a person listed in paragraph (a)(iii) to (vi), only if the person has consulted the Director of Public Prosecutions for Northern Ireland.”

This amendment omits the requirement that a chief officer of police in Northern Ireland may only apply for a serious crime prevention order if it is terrorism-related. It also provides that each of the applicants listed in paragraph (a)(iii) to (vi) must consult the Director of Public Prosecutions for Northern Ireland before making an application.

Amendment 93, in clause 35, page 30, line 39, at end insert—

“(1D) A serious crime prevention order may be made by the Crown Court in Northern Ireland—

(a) only on an application by—

(i) the Director of Public Prosecutions for Northern Ireland,

(ii) the Director of the Serious Fraud Office, or

(iii) a chief officer of police, and

(b) in the case of an application by a chief officer of police, only if—

(i) it is an application for an order under section 19 or19A that is terrorism-related (see section 8A), and

(ii) the chief officer has consulted the Director of Public Prosecutions for Northern Ireland.”

This amendment makes provision for the Director of the Serious Fraud Office to apply to the Crown Court in Northern Ireland for a serious crime prevention order.

Amendment 94, in clause 35, page 30, leave out lines 41 to 44 and insert—

“(a) in paragraph (a)—

(i) omit sub-paragraphs (i) and (iii);

(ii) after sub-paragraph (iv) insert—

“(v) in any other case, the person who applied for the order;”;

(b) for paragraph (b) substitute—

“(b) in relation to a serious crime prevention order in Northern Ireland, the person who applied for the order.””

This amendment makes provision for the meaning of “relevant applicant authority” for serious crime prevention orders in Northern Ireland, and is consequential on amendment 91.

Amendment 95, in clause 35, page 31, line 17, at end insert—

“(4A) In section 28 (power to wind up companies: Northern Ireland)—

(a) in subsection (1)—

(i) in the words before paragraph (a), after “Northern Ireland” insert “or the Director of the Serious Fraud Office”;

(ii) in paragraph (b), for “of Public Prosecutions for Northern Ireland” substitute “concerned”;

(b) for subsection (1A) substitute—

“(1A) A person mentioned in section 8(1C)(a)(iii) to (vi) may present a petition to the court for the winding up of a company, partnership or relevant body if—

(a) the company, partnership or relevant body has been convicted of an offence under section 25 in relation to a serious crime prevention order made on an application by the person, and

(b) the person considers that it would be in the public interest for the company, partnership or (as the case may be) relevant body to be wound up.”;

(c) in subsection (3), for the words from “the Director of Public Prosecutions for Northern Ireland” to the end substitute “a person who is authorised to present a petition in accordance with subsection (1) or (1A).”

This amendment makes provision for each of the new applicants for a serious crime prevention order in Northern Ireland to be able to present a petition to the court for the winding up of a body which has been convicted of an offence in relation to an order made on the application of the applicant. It is consequential on amendment 91.

Amendment 96, in clause 35, page 31, line 18, at end insert—

“(za) in paragraph 12—

(i) in paragraphs (a) and (b), after “England and Wales” insert “or Northern Ireland”;

(ii) in paragraph (c), after “section 27” insert “or 28”;”.

This amendment extends the functions of the Director of the Serious Fraud Office in relation to serious crime prevention orders in Northern Ireland, and is consequential on amendment 91.

Amendment 97, in clause 35, page 31, line 24, after “England and Wales” insert “or Northern Ireland”.

This amendment and amendments 98 and 99 extend the functions of the Director General of the National Crime Agency in relation to serious crime prevention orders in Northern Ireland, and are consequential on amendment 91.

Amendment 98, in clause 35, page 31, line 29, at end insert “or Northern Ireland”.

See the explanatory statement to amendment 97.

Amendment 99, in clause 35, page 31, line 33, after “section 27” insert “or 28”.

See the explanatory statement to amendment 97.

Amendment 100, in clause 35, page 31, line 43, after “England and Wales” insert “or Northern Ireland”.

This amendment and amendments 101 and 102 extend the functions of the Commissioners for His Majesty’s Revenue and Customs in relation to serious crime prevention orders in Northern Ireland, and are consequential on amendment 91.

Amendment 101, in clause 35, page 32, line 4, at end insert “or Northern Ireland”.

See the explanatory statement to amendment 100.

Amendment 102, in clause 35, page 32, line 8, after “section 27” insert “or 28”.

See the explanatory statement to amendment 100.

Amendment 103, in clause 35, page 33, line 7, after “England and Wales” insert “or Northern Ireland”.

This amendment and amendments 104 to 105 extend the functions of the Chief Constable of the Ministry of Defence Police in relation to serious crime prevention orders in Northern Ireland, and are consequential on amendment 91.

Amendment 104, in clause 35, page 33, line 12, at end insert “or Northern Ireland”.

See the explanatory statement to amendment 103.

Amendment 105, in clause 35, page 33, line 15, at end insert “or Northern Ireland”.

See the explanatory statement to amendment 103.

Amendment 106, in clause 35, page 33, line 20, after “England and Wales” insert “or Northern Ireland”.—(Chris Philp.)

See the explanatory statement to amendment 103.

--- Later in debate ---

[Chris Philp]

The clause amends the Serious Crime Act 2007 to provide that all those subject to an SCPO are required to provide the police with specified personal data as standard. It includes a set of appropriate requirements for bodies corporate. All those requirements can currently be attached to an SCPO at the discretion of the court, on a case-by-case basis, but the clause will place the same set of notification requirements on all individuals without the need for case-by-case applications.

Most respondents to the public consultation agreed with this proposal. Many highlighted that standardising notification requirements will create consistency and save the court some time. The notifiable information includes information such as the person’s address, employment details, telephone numbers, email address and some financial information.

Government amendments 117 and 119 will add to the list of notification requirements. The clause already includes things such as usernames and display names for social media, because monitoring these individuals’ activity online is very important. Amendment 117 adds to that list a requirement so that, in addition to usernames for social media, the relevant individuals must notify the police of any names used to access, or that identify them on, an online video-gaming service with messaging functionality. Law enforcement agencies report that such gaming websites are frequently used by individuals to communicate with other people, including in an attempt to circumvent restrictions on communications detailed in their order, so that they may re-establish their criminal enterprises.

Tightening the legislation will remove that loophole.

Amendments 109 and 116 provide that the time within which an individual made subject to an SCPO must provide the relevant information to the police is three days from the day the order comes into force—not three days from the day the order is made, as drafted. Although some orders come into force on the day they are made, others do not until, for example, the individual has served their prison sentence. The amendments allow for those different circumstances and will ensure that individuals do not inadvertently fall foul of the offence of failing to provide the required information when that would not be the Government’s intention or be reasonable. The amendments have the same effect as amendment 69, tabled by the hon. Member for Stockton North—I apologise that the Government have adopted the measure, if that is the right word.

[Alex Cunningham]

It is nice to win occasionally.

[Chris Philp]

There we are. We have enthusiastically embraced the hon. Gentleman’s idea. I give him and his colleagues full credit for conceiving it. I acknowledge that the Government amendment does the same thing as his amendment 69 would do, for which I thank and congratulate him.

Finally, Government amendment 114 is a drafting amendment—it might even be a technical drafting amendment—to ensure that the definition of a “relevant body” in proposed new section 15A of the Serious Crime Act 2007 carries through to the proposed new section 15C. I am sure that even the shadow Minister will agree that that is fairly technical in nature.

--- Later in debate ---

[Alex Cunningham]

This has been a long time coming. The Minister and I have looked across at each other many times in this room over the past few years, and I think this is the first time he has accepted that we have actually got it right. I am obliged to him for that. This set of measures improves the efficiency of our court system, and anything that we can do to enable that is critical. Adding the information to the system automatically will make it much easier in future to ensure that those people are properly monitored and can be contacted wherever they are. We are happy to support the clause.

Amendment 109 agreed to.

Amendments made: 110, in clause 36, page 34, leave out lines 4 to 6 and insert—

“(3) A person who is subject to a serious crime prevention order made by a court in England and Wales commits an offence under the law of England and Wales if, without reasonable excuse, the person fails to comply with a requirement imposed by subsection (1) as it applies by virtue of the order.

(3A) A person who is subject to a serious crime prevention order made by a court in Northern Ireland commits an offence under the law of Northern Ireland if, without reasonable excuse, the person fails to comply with a requirement imposed by subsection (1) as it applies by virtue of the order.”

This amendment clarifies the jurisdiction in which a person commits an offence for failure to comply with a notification requirement under section 15A.

Amendment 111, in clause 36, page 34, line 7, leave out “on summary conviction to a fine” and insert “—

(a) on summary conviction in England and Wales, to a fine;

(b) on summary conviction in Northern Ireland, to a fine not exceeding level 5 on the standard scale.”

This amendment makes provision for the penalties to apply in Northern Ireland for a failure to comply with the notification requirements set out in section 15A.

Amendment 112, in clause 36, page 34, leave out lines 22 to 24 and insert—

“(3) A person who is subject to a serious crime prevention order made by a court in England and Wales commits an offence under the law of England and Wales if, without reasonable excuse, the person fails to comply with a requirement imposed by subsection (2) as it applies by virtue of the order.

(4) A person who is subject to a serious crime prevention order made by a court in Northern Ireland commits an offence under the law of Northern Ireland if, without reasonable excuse, the person fails to comply with a requirement imposed by subsection (2) as it applies by virtue of the order.”

This amendment clarifies the jurisdiction in which a person commits an offence for failure to comply with a notification requirement imposed by section 15B.

Amendment 113, in clause 36, page 34, line 25, leave out “on summary conviction to a fine” and insert “—

(a) on summary conviction in England and Wales, to a fine;

(b) on summary conviction in Northern Ireland, to a fine not exceeding level 5 on the standard scale.”

This amendment makes provision for the penalties to apply in Northern Ireland for a failure to comply with the notification requirements set out in section 15B.

Amendment 114, in clause 36, page 34, line 36, at end insert—

“(3) In this section “relevant body” has the same meaning as in section 15A.”

This amendment inserts a definition of “relevant body” into section 15C.

Amendment 115, in clause 36, page 35, line 1, after “Wales” insert “or Northern Ireland”.

This amendment and amendments 118 and 120 to 123 make provision for notification requirements by individuals who are subject to a serious crime prevention order in Northern Ireland.

Amendment 116, in clause 36, page 35, line 2, leave out from “with” to end and insert “the first day on which any of its provisions comes into force,”.

This amendment adjusts the time period during which a notification under section 15D(1) must be made.

Amendment 117, in clause 36, page 35, line 13, at end insert—

“(da) any name—

(i) which the person uses to access a video game that is a user-to-user service or that is available as part of a user-to-user service, or

(ii) the function of which is to identify the person as the user of such a game;”.

This amendment requires the subject of a serious crime prevention order to notify the police of any name used to access a video game which is a user-to-user service or which identify the person as the user of such a game.

Amendment 118, in clause 36, page 35, leave out lines 24 to 36.

This amendment and amendment 120 clarify the jurisdiction in which a person commits an offence for failure to comply with a notification requirement under section 15D and make provision for the penalties to apply on conviction in Northern Ireland.

Amendment 119, in clause 36, page 36, line 12, at end insert—

“(e) ‘user-to-user service’ has the meaning given by section 3 of the Online Safety Act 2023.”

This amendment defines “user-to-user service” for the purpose of amendment 117.

Amendment 120, in clause 36, page 36, line 12, at end insert—

“(6) A person who is subject to a serious crime prevention order made by a court in England and Wales commits an offence under the law of England and Wales if the person—

(a) fails, without reasonable excuse, to comply with a requirement imposed by subsection (1) as it applies by virtue of the order;

(b) notifies the police, in purported compliance with such a requirement, of any information which the person knows to be false.

(7) A person guilty of an offence under subsection (6) is liable—

(a) on summary conviction, to imprisonment for a term not exceeding the general limit in a magistrates’ court or a fine, or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years or a fine, or both.

(8) A person who is subject to a serious crime prevention order made by a court in Northern Ireland commits an offence under the law of Northern Ireland if the person—

(a) fails, without reasonable excuse, to comply with a requirement imposed by subsection (1) as it applies by virtue of the order;

(b) notifies the police, in purported compliance with such a requirement, of any information which the person knows to be false.

(9) A person guilty of an offence under subsection (8) is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum, or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years or a fine, or both.”

See the explanatory statement to amendment 118.

Amendment 121, in clause 36, page 36, line 18, after “person” insert—

“who is subject to a serious crime prevention order made by a court in England and Wales”.

This amendment and amendments 122 and 123 clarify the jurisdiction in which a person commits an offence for failure to comply with section 15E(1).

Amendment 122, in clause 36, page 36, line 21, at end insert—

“as it applies by virtue of the order”.

See the explanatory statement to amendment 121.

Amendment 123, in clause 36, page 36, line 30, at end insert—

“(3A) A person who is subject to a serious crime prevention order made by a court in Northern Ireland commits an offence under the law of Northern Ireland if the person—

(a) fails, without reasonable excuse, to comply with a requirement imposed by subsection (1) as it applies by virtue of the order;

(b) notifies the police, in purported compliance with such a requirement, of any information which the person knows to be false.

(3B) A person guilty of an offence under subsection (3A) is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum, or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years or a fine, or both.”

See the explanatory statement to amendment 121.

Amendment 124, in clause 36, page 37, leave out lines 10 and 11 and insert—

“(3) A person who is subject to a serious crime prevention order made by a court in England and Wales commits an offence under the law of England and Wales if the person fails, without reasonable excuse, to comply with subsection (1) in relation to the notification.”

This amendment and amendment 125 make provision for a person to commit an offence under section 15G(1) under the law of Northern Ireland.

Amendment 125, in clause 36, page 37, line 17, at end insert—

“(5) A person who is subject to a serious crime prevention order made by a court in Northern Ireland commits an offence under the law of Northern Ireland if the person fails, without reasonable excuse, to comply with subsection (1) in relation to the notification.

(6) A person guilty of an offence under subsection (5) is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum, or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years or a fine, or both.”

See the explanatory statement to amendment 124.

Amendment 126, in clause 36, page 37, line 20, after “Wales” insert “or Northern Ireland”.—(Chris Philp.)

This amendment provides for a court in Northern Ireland to make provision in a serious crime prevention order about how notifications under section 15A to 15E are to be made.

Clause 36, as amended, ordered to stand part of the Bill.

Clause 37

Orders by Crown Court on acquittal or when allowing an appeal

Amendments made: 127, in clause 37, page 38, leave out lines 19 to 21 and insert—

“(2) A court that makes an order by virtue of subsection (1) in the case of a person who is already the subject of a serious crime prevention order in England and Wales must discharge the existing order.

(2A) The Crown Court in Northern Ireland may make an order under this section in relation to a person who is acquitted of an offence by or before the court, or where the court allows a person’s appeal against a conviction for an offence, if—

(a) the court is satisfied that the person has been involved in serious crime (whether in Northern Ireland or elsewhere), and

(b) the court has reasonable grounds to believe that the order would protect the public by preventing, restricting or disrupting involvement by the person in serious crime in Northern Ireland.

(2B) A court that makes an order by virtue of subsection (2A) in the case of a person who is already the subject of a serious crime prevention order in Northern Ireland must discharge the existing order.”

This amendment and amendment 128 make provision for the Crown Court in Northern Ireland to make serious crime prevention orders on acquittal or when allowing an appeal.

Amendment 128, in clause 37, page 38, line 27, at end insert

“or (as the case may be) Northern Ireland”.

See the explanatory statement to amendment 127.

Amendment 129, in clause 37, page 38, line 38, at end insert—

‘(5A) In section 3(4), for “section 1(2)(a)” substitute “sections 1(2)(a) and 19A(2A)(a)”.’

This amendment is consequential on amendments 127 and 128.

Amendment 130, in clause 37, page 39, line 4, after “19A(1)” insert “and (2A)”.—(Chris Philp.)

This amendment is consequential on amendments 127 and 128.

Question proposed, That the clause, as amended, stand part of the Bill.

[Chris Philp]

Clause 37 also amends the Serious Crime Act 2007 to provide the Crown court the power to impose an SCPO on a person who has been acquitted or when allowing an appeal. The High Court already has the power to impose an SCPO in lieu of conviction, provided that it meets the two-limb test set out in the 2007 Act: the court must be satisfied that a person has been involved in a serious crime, presumably on the balance of probability, and it must have reasonable grounds to believe that the order would protect the public by preventing, restricting or disrupting involvement by the person in serious crime. The serious offences are defined in schedule 1 to the 2007 Act, and they include slavery, drug trafficking, firearms offences, terrorism, armed robbery, people trafficking and economic crime, including fraud, money laundering, sanctions evasion and offences in relation to the public revenue.

Clause 37 sets out that the Crown court can impose an SCPO on acquittal or when allowing appeal if the same test is met. The Government believe that the Crown court, on application from the Crown Prosecution Service or the Serious Fraud Office, is best placed to decide whether to make an order against a person whom it has just acquitted, given that the court will have heard all the evidence relating to the person’s conduct and can ensure that the two-limb test has been met.

There are reasons why a person may be acquitted of a particular offence where the standard of proof is high—beyond reasonable doubt—but where an SCPO may still be appropriate: for example, when the evidence may not satisfy the court beyond reasonable doubt that a serious offence has been committed, but there may be sufficient evidence to satisfy the court that the person has been involved in serious crime. The court could then decide that imposing an SCPO would protect the public.

There is precedent for this approach: domestic abuse protection orders under the Domestic Abuse Act 2021 and restraining orders under the Protection from Harassment Act 1997 also allow for court orders to be made against individuals on acquittal or when allowing an appeal. This clause will streamline the process and help ensure that SCPOs can be used more frequently where appropriate.

[Alex Cunningham]

The Minister rightly said that, when somebody is acquitted but the court is considering the imposition of an SCPO, the grounds on which the order is made must be very robust and they must pass the necessary tests. How do we ensure that that happens? Given that these people have been acquitted of an offence, will there be any report to Ministers or to Parliament on how the clause is working? It is significant if a person is declared innocent but is still subject to a control order. I would welcome clarity on whether we would have feedback on that.

[Chris Philp]

The shadow Minister asks how he can be sure that these orders will be used reasonably. The answer to that lies in the two-limb test, which was set out in the 2007 Act. I guess it must have been either the Blair Government or the Brown Government who set out the test. It is that the court—now it will obviously be the Crown court as well as, previously, the High Court—is satisfied that a person has been involved in serious crime and that it has reasonable grounds to believe that the order will protect the public. The protection really is that the court must be satisfied of those two things. All we are really doing is extending to the Crown court the ability that the High Court has had already in applying those tests, which have been around for the past 17 years.

Criminal Justice Bill (Eleventh sitting)

Alex Cunningham Excerpts

Committee stage
Tuesday 23rd January 2024 Public Bill Committees

[Chris Philp]

That is a facts-specific determination, but it might, for example, be that someone is carrying a sign soliciting funds, has positioned themselves in a particular location with a receptacle for collecting money, or is positioned near an ATM. It might be that someone has been begging and, although they have not been observed doing so by a police officer, there is a reasonable suspicion that they might do so in the future.

The meaning of nuisance begging is not any begging; it is quite precisely defined in clause 49, which we will come to. Begging in general is not being criminalised. That was the purpose of repealing the 1824 Act, which was very wide in its scope. We are defining nuisance begging in this Bill to be quite precise and targeted. Obviously, we will discuss that in detail, probably in the next hour or so.

[Alex Cunningham (Stockton North) (Lab)]

I note that clause 38(9) refers to one month’s imprisonment. Can the Minister explain how he reconciles that new sentence with the Sentencing Bill’s presumption against short sentences? These people may never go to prison.

[Chris Philp]

The hon. Gentleman asks an excellent question. There is in the Sentencing Bill a presumption against short sentences, defined as under 12 months. However—as he knows, as a shadow Justice Minister—that presumption does not apply where the offender is already subject to an order of the court. For a first offence, where the offender is not subject to an order of the court, he is quite right: there would be a statutory presumption—a strong presumption—against a sentence of less than 12 months. If some other kind of court order has been issued for a first offence, the provisions of the Sentencing Bill—in particular the presumption against short sentences—will not apply on any subsequent appearance that the offender makes before the magistrate for a later offence, for so long as that order of the court is in force. That is how the two provisions interact, but that was a very good and fair question. I trust that my answer deals with the point that he raised.

[Alex Cunningham]

It doesn’t.

[Chris Philp]

The hon. Gentleman says from a sedentary position that it does not, but it does. I explained how if the offender is subject to an order of the court following a first offence, then the presumption against a short sentence does not apply for a second or subsequent offence. That is how the two interact. The disapplication would apply only on the first occasion; if a court order is made, the disapplication will not apply to subsequent offences for so long as that court order is in force. I think that is a relatively clear and coherent position.

Clause 38(5) provides that a direction must, so far as is practicable, avoid interfering with a person’s attendance at work or education, or with any requirements of a court order—as I have just mentioned—to which the person is subject. Amendment 140 seeks to augment that provision to avoid a direction interfering with the person’s attendance at a substance abuse support service centre, mental or physical health services or a place of worship.

On the face of it, those things sound broadly reasonable, because there are numerous circumstances in which a person subject to a nuisance begging direction may want to enter an area to access those services. It is worth saying that a direction will have a maximum duration of 72 hours, so we are not talking about long periods. Directions must also be proportionate and reasonable. We expect those exercising these powers—a constable or the relevant local authority—to take a joined-up approach and consider their exercise on a case-by-case basis. There is a lot of good practice in multi-agency working to build on, to ensure that people can access appropriate support services.

--- Later in debate ---

[Alex Norris]

Clauses 39 to 42 relate to nuisance begging notices, which will be a step up from the nuisance begging directions discussed previously. Clause 39 sets out new powers for an authorised person to give a nuisance begging prevention notice to a person appearing to be aged 18 or over if satisfied on reasonable grounds that the person is engaging, or has engaged, in nuisance begging. This is a notice that will prohibit the person from engaging in a specified behaviour for a specified period of time, or require them to do specific things, within specific times and in—or not in—certain places. Clause 39 (3) provides that the maximum duration of any requirement is three years. That is a significant period of time. Subsections (7) and (8) make it an offence to fail to comply with a nuisance begging prevention notice without reasonable excuse, the maximum penalty being one month imprisonment—I would be exceptionally surprised if that is how it is intended to be used—or a fine of up to £2,500, or both. That is a punishment that is likely to be difficult to enforce.

The powers contained in these clauses are substantial. They place stringent requirements on individuals not to engage in certain behaviour. Of course, that can also be used positively to ensure an individual engages with support services. As in clause 38, an authorised person is defined as a police constable or someone from the relevant local authority. We know that police officers up and down the country already contend with heavy workloads and are not necessarily experts in nuisance begging or homelessness. I would be interested to hear from the Minister about how that might be covered in guidance, but there is a real risk that these new powers send the signal that begging is a criminal justice issue and that it is the police’s job to sort. In some cases it might be, but in many if not most it will not be. I hope to hear the Minister say that he does not think this is an issue we can police our way out of. Yes, we need to break organised criminal gangs, but beyond that the reasons for people ending up destitute and begging for money are service failure or their engagement with services across the piece all the way to the final stage of sitting next to a cap or a cup. It is wrong to say that that is simply a criminal justice issue.

[Alex Cunningham]

We had this problem in Stockton with nuisance begging, with people aggressively approaching customers sitting outside a café having a coffee. The local authority and the police force worked together on a solution and have put the resources in, but I am concerned that it could become just a police matter, as my hon. Friend has outlined. Can he think of any way we can get round that, such as resources for local authorities?

[Alex Norris]

I am grateful for that intervention. The case for resources for local authorities is one that we cannot make enough. My hon. Friend gives a good example of partnership working that has not just turned to criminal justice outcomes and told the police, “Well, this is now your problem to deal with.” We need that good faith partnership working and I hope that my amendments help to promote that to some degree.

Amendment 138 seeks to mitigate those challenges by inserting a new subsection so that

“Where a person has been served a nuisance begging notice the serving authority must refer that person to their local authority who must provide guidance relating to welfare rights or any other associated issue the person faces.”

The amendment seeks to ensure that someone who receives a nuisance begging notice is referred to the right support services and can liaise with the right qualified individuals on the matter. That would move away from criminalising the person and towards making sure that they get support to make a change in their life. My amendment is one way to do that and I would be interested in hearing about other ways from the Minister. In a previous debate, the Minister said it would be “support first”, and this is a way to make that real.

Clause 40 governs what can and cannot be required in the prevention notice. I have sought to amend that with amendment 141, which mirrors what I said in the previous debate. I will not repeat those arguments or press this to a Division, on the basis of what the Minister offered.

Amendment 142 would reduce the period that a prevention notice may be in place from three years to one year. Three years is a lengthy period for which—we will discuss this in relation to clause 49—someone could be told that they cannot attend their local town centre or high street. That could be based on the judgment of quite a junior officer, with minimal oversight, on pain of a month in prison or a fine of £2,500. Setting to one side those who are in genuine destitution, who I cannot believe we would want to banish from their town centres, part of the risk is that criminal gangs will cycle through the vulnerable people that they are exploiting. It will not matter a jot to those gangs that that person has to deal with a very difficult consequence for their life; they will move on to someone else. Amendment 42 would reduce the period of the notice down to one year. I hope that the Minister can explain the rationale for choosing three years.

Clause 41 is about the appeals process. We support an appeals process being included in the Bill, but I have significant concerns, which will be mirrored in the debates relating to homelessness, about access to justice and about whether the most destitute will be able to engage with the magistrates court to try to get a notice lifted. I would not challenge the power in clause 42 to vary notices, as I suspect there will be moments when they will be revised down.

Those are some ideas to try and soften some of the provisions. I am interested in the Minister’s views.

--- Later in debate ---

[Chris Philp]

I will briefly respond by making two or three points. The first is that I hope the shadow Minister and others will acknowledge that the clause represents a dramatic reduction in the scope of the criminalisation of rough sleeping compared with the Act currently on the statute book, which is in force as we speak. It dramatically reduces the scope of people who will be caught by the provisions. The hon. Gentleman did not acknowledge that in his speech, but I hope that perhaps later in the debate he will acknowledge that the Bill dramatically shrinks the range of people caught by the provisions.

I made my second point in my intervention. The hon. Gentleman proposes voting against the clause, but he has not proposed any alternatives to it. He has not put down any amendments, and when I pushed him on what he thought should be done to protect shopkeepers, for example, he did not really have any clear answer.

[Alex Cunningham]

Will the Minister give way?

[Jess Phillips]

Will the Minister give way?

[Chris Philp]

I will in a second. The Opposition are not proposing any constructive alternative to protect shopkeepers, for example. Both sides agree that the first step should always be support, that we need to end homelessness by tackling its causes and that, first of all, we need to support people to get off the streets and into accommodation. We should address underlying causes such as mental health issues, drug issues and alcohol issues. We agree on all that. However, if those interventions do not work, we need to make sure that there is some residual power as a backstop or last resort when a business premises or high street gets to the point of being adversely affected. That is what we are proposing here.

Some other jurisdictions—some American cities such as San Francisco, for example—have either ceased to apply rules like these or have completely abolished them. That has led to a proliferation of people sleeping in public places and has really undermined entire city centres. I understand the points that the Opposition are making, but we need something that will act as a backstop to protect communities and high streets. We have tried to construct the clause in a way that gets the balance right, and we will debate the details when we come to clause 61.

I will make a final point about moving people on before I give way to interventions and conclude. The hon. Member for Birmingham, Yardley said that, often, if police or local authorities—she gave the example of people running a train station—ask people to move on, those people tend to comply. That is because of the sanctions in the 1824 Act. If we completely repeal that without there being anything to replace it—that is what the Opposition essentially seem to be suggesting—and an officer goes up to someone and says, “Would you mind moving on, please?” then that person could just say, “No, I don’t fancy moving on”. There would be no power to do anything. The officer, the person running the train station or the shopkeeper would have to say, “Look, I am asking you nicely: can you please move on?” If the person in question said, “No,” then nothing could be done at all.

The shadow Minister mentioned trespassing legislation, but the streets are public and that legislation applies to private property. It does not apply to a pavement. It would not apply outside a train station—maybe it would apply inside; I am not sure. I am just saying that, if the statute book were to be totally excised and someone was asked to please move on, there would be no ability to ensure that that happened. I accept that a balance needs to be struck, and we have tried to do that through a definition in clause 61, which we will debate.

I posed questions back to the Opposition, but, with respect, I do not think I heard the answers in the Opposition’s speech. I am sure that we will continue to debate the issue after lunch, particularly when we come to clause 61. We will no doubt get into the detail a bit more then. I had promised to give way to the hon. Member for Stockton North.

[Alex Cunningham]

I am grateful to the Minister for giving way. I did not know that the days of empire had returned and that we needed to consider ruling in San Francisco.

[Chris Philp]

I was using that as an example.

[Alex Cunningham]

I get complaints about aggressive begging and nuisance begging. Never in my life as a local councillor or a Member of Parliament have I had a property owner approach me to say, “I’ve got a real problem with this guy sleeping outside my shop every night”. I have never had that, and nobody else has told me that they have. The Minister thinks it a tremendous problem—that property owners are very worried and angry and that they want these people moved on. That idea is very new to me. The Minister needs to justify these measures more.

[Chris Philp]

I have a great deal of respect and affection for the hon. Gentleman; he knows that, having spent so many hours with me in Committee. With respect, the question to ask is not about the current situation—although there are examples; I will show him photographs after the meeting of tents on Tottenham Court Road that retailers do not particularly appreciate. The question to ask is about what would happen in the future as a consequence of a total repeal. That is the question that needs to be answered.

Criminal Justice Bill (Twelfth sitting)

Alex Cunningham Excerpts

Committee stage
Tuesday 23rd January 2024 Public Bill Committees

[Chris Philp]

Clause 61 is important; we referred to it during this morning’s proceedings. It sets out the conditions that need to be met for rough sleeping to be counted as a nuisance. To repeat my earlier point, the Government do not want to criminalise rough sleeping in general; that is why the Vagrancy Act 1824 is being repealed. However, there are some kinds of rough sleeping that cause nuisance to other people to the point that the general public’s own rights are unreasonably infringed. The definition tries to strike a balance. As I said, we do not want to criminalise rough sleeping in general, but we do want to define a threshold where the rough sleeping is unreasonably interfering with other members of society. The definition we have set out in the clause aims to strike that balance. I will be interested to hear Committee members’ views on it.

The clause sets out the behaviours accompanying rough sleeping that either cause or are capable of causing nuisance to others: damage, distress, disruption, harassment, creation of a health and safety or security risk, or prevention of the determination of whether there is such a health and safety risk.

[Alex Cunningham (Stockton North) (Lab)]

I wonder whether three teenagers who grab their tent and decide to sleep at the end of a farmer’s field are causing a nuisance and will therefore fall under this law.

[Chris Philp]

That is obviously a fact-specific question. [Interruption.] Well it is, obviously. Every piece of behaviour, to assess whether it is criminal or not, needs to be measured against the relevant statute. It would obviously depend on whether it caused damage, disruption, harassment, distress and so on. But let me try to answer the hon. Gentleman’s question—it is quite a good case study, so let us have a look at it and see whether it meets the test.

First, if we look at subsection (4), does the behaviour cause damage? Well, if the teenagers are simply pitching a tent at the end of a track, it probably would not. On the other hand, if they threw a load of rubbish everywhere and trashed the farm, then it might. It depends whether their behaviour causes damage or not, but, as the hon. Gentleman described it, it sounds like it probably would not.

We then come to disruption, which is defined in subsection (5) as

“interference with…any lawful activity…or…a supply of water, energy or fuel”.

If the tent stopped the farmer bringing farm equipment in or out of the farmyard, that might count as interference, but if it did not, and if it did not interfere with water, energy or fuel, then that would not be disruption.

We then come to distress, the next limb of the test. If the people in the tent used

“threatening, intimidating, abusive or insulting words or behaviour,”

then the test might be met, but if their behaviour did not include any of those things—no threats, no intimidation, no abuse, no insulting words—then it would not be.

I am grateful to the hon. Member for Stockton North for intervening, because this little illustration gives us an opportunity to demonstrate that it is only where those tests are met that the provisions of the clause become engaged. I hope that it was clear from the way I talked through that little case study that the measure is relatively reasonable. That is what I think, but I am interested to hear other views. The clause sets a threshold, and only when that threshold is crossed do its provisions become engaged.

--- Later in debate ---

[Alex Norris]

My hon. Friend would certainly have passed the test of intending to sleep rough. A subjective decision would then have to be made on whether her behaviour caused damage, or even was capable of causing damage—the damage does not have to occur. She might also be found to have caused “disruption”, which is

“interference with…any lawful activity in, or use of, a place.”

It would not be very hard to pass that test. She is a fearsome opponent, so perhaps she is also a health and safety risk to others at times. So yes, she could in some way fail many, if not all, of the tests. [Interruption.] I think she will probably take that as a compliment.

[Alex Cunningham]

I am really interested in the sleeping rough bit. There are organisations across the country—business people—who opt to spend a night out, as did my hon. Friend the Member for Swansea East, to demonstrate their support for homeless people. They sleep in shop doorways and outside factories. It is a deliberate act. They raise lots of money for homeless people, which is great. Are they not criminalised by this law?

[Alex Norris]

That is an interesting case. I have absolutely no doubt that that is not the Government’s intention, but could this clause be applied to such a case? I would make a strong argument that a member of council staff could say that those people have left rubbish or are capable of it. They do not have to have done it, but by generating rubbish that perhaps blows away, they could cause deposits of waste. Could this clause be used to prevent that activity? Yes, it could. That brings us back to asking whether it is precise, specific and limited, and the answer is no: it fails all three of those tests.

That takes me to the important points made by the hon. Member for Harrogate and Knaresborough. It is about finding a balance, because the public are sympathetic and want to see the issue tackled positively.

Criminal Justice Bill (Fifteenth sitting)

Alex Cunningham Excerpts

Committee stage
Tuesday 30th January 2024 Public Bill Committees

[Jess Phillips (Birmingham, Yardley) (Lab)]

I beg to move, That the clause be read a Second time.

I put my name to this new clause tabled by the Mother of the House, my right hon. and learned Friend the Member for Camberwell and Peckham (Ms Harman)—she has had some mentions. I absolutely agree with it. It is important, but, to be completely honest, for me it is far too small in its approach. I believe that the family courts in our country are harming—well, killing—children. Yesterday, the head of the family court division said on BBC Radio 4 that austerity is harming children and putting more children into care. We have been campaigning on family court justice for a decade, and progress has been slower than slow; I cannot think of an adjective. But people who abuse their families should not be allowed access to their children.

The new clause is specifically about those convicted of sexual offences against children. To be completely clear, those convicted in our family courts of sexual offences against children are not barred from parental responsibility for their own children—they can be barred from seeing anybody else’s children, but their own children are not immediately excluded. I am afraid that child abuse cases are taking place in our family courts, and not only do we allow children to be alone with parents who are abusers, but we sometimes remove children from the person trying to keep them safe and place them with those abusers. The new clause would protect children specifically from fathers convicted of serious child sex offences.

When a man commits a serious sexual offence, he has to go on the sex offenders register and is prevented from working with children. That protects other people’s children but not his own, and he retains parental responsibility. Currently, a father convicted of child sexual offences automatically retains parental responsibility. My right hon. and learned Friend’s new clause would make the default position that he would lose his parental responsibility, subject to that being reinstated by a family court on his application if it is judged to be in the child’s best interest.

The new clause follows important work done on this issue by my hon. Friend the Member for Rotherham (Sarah Champion)—including through the Victims and Prisoners Bill Committee, which I was also on—and Jade’s law, which was added to that Bill to protect children by removing parental responsibility from a man who kills a child’s mother, or a parent who kills any parent. The new clause would similarly remove the parental responsibility of the father where he is convicted of sexual offences against children.

There is a BBC News article relating to Bethan in Cardiff, who has spent £30,000 protecting her daughter from the child’s father, who has been convicted of paedophile offences. The clause would make it the default position that parental responsibility is removed in such a case, meaning mothers do not have to go through such an arduous and expensive process. It could, however, be reinstated by the family court on application if it is judged to be in the best interests of the child.

[Alex Cunningham (Stockton North) (Lab)]

It is a pleasure to serve under your chairmanship this morning, Mrs Latham. I welcome the new clause tabled by my right hon. and learned Friend the Member for Camberwell and Peckham and outlined by my hon. Friend the Member for Birmingham, Yardley. New clause 3, as we have heard, seeks to remove the parental responsibility of people convicted of sexual offences against children and I welcome the tremendous cross-party support it has received. The new clause’s core aspect is the welfare of the child. I am one of those whose ambition in being elected to this place was to work for the benefit of young people, and the new clause does that.

The proposal would go some way to strengthening the law around the welfare of a child whose parent has been convicted of sexual offences against children. There are very limited cases where the court has allowed an application to terminate a person’s parental responsibility. They include a 1995 case in which the court terminated the parental responsibility, acquired by a parental responsibility agreement, of a father who had been sent to prison for causing serious injuries to his child.

In 2013, the court removed the parental responsibility of a father who had been imprisoned for sexual abuse of his child’s half-sisters. In a further case in 2013, the court terminated the parental responsibility of a father who was serving a prison sentence for a violent attack on the child’s mother. Finally, in a 2021 case, the court terminated the parental responsibility of a father who had a significant offending history, including sexual offences against children. In other words, this is already happening.

On Second Reading, I spoke about the need to amend the Bill so that offenders who have sexually harmed children and are sent to prison as a result lose the ability to control their own children from behind bars. That measure is long overdue and will ensure all children are safe from those dangerous predators, including their own parents. The key problem to address is: how can a man—it is usually a man—considered too dangerous to work with or be around other people’s children be allowed to have parental responsibility that effectively makes him responsible for all manner of decisions affecting their child’s life, but which may not be in the best interests of the child? Why should any child be subject to any form of control by a convicted sex offender who is unlikely to be part of their lives for years ahead, and possibly forever?

In response to a question on the proposed new clause, Dame Vera Baird told Committee members that she had reservations about the definition of a sexual offence in the context of the Bill as she felt it might be too wide. That said, I hope the Government will at least support the new clause in principle and perhaps return to the issue on Report so that we can take another step in the quest of all of us here to protect children. I look forward to the Minister’s response.

[Laura Farris]

The new clause seeks the automatic suspension of parental responsibility where a parent has been convicted of a serious sexual offence against a child. We understand fully the motivation in bringing the new clause. We have discussed it and I respect the remarks that have been made. I want to confine my remarks to the contours of the current system and where that fits in relation to Jade’s law, which the hon. Member for Birmingham, Yardley has already alluded to, and how that was introduced in the Victims and Prisoners Bill.

Starting with the current state of the law, the paramountcy principle is the cornerstone of the family justice system. There must be full consideration of the best interests of the child as a starting point. The hon. Member for Stockton North has just given an example of a number of cases where the parent had committed a very serious sexual offence and the family court acted accordingly to suspend parental responsibility.

--- Later in debate ---

[Alex Cunningham]

I will be brief. As the hon. Gentleman said, this is a distressing new clause, but the Opposition believe it is very much necessary. I was briefed on it last week by the right hon. Member for Tunbridge Wells, and I was really shocked by what he had to tell me about the murderer David Fuller. The facts have been outlined to the Committee today. Fuller was of course jailed for murder, but that someone could carry out the assaults that he did on dead people and not be prosecuted beggars belief. None of us can comprehend the distress caused to the families of the deceased people Fuller violated. It is important that we ensure that anyone who acts as he did is suitably punished.

I note that the hon. Member for South Basildon and East Thurrock does not intend to press the matter to a vote, but I hope the Minister will be sympathetic to his cause and that of the right hon. Member for Tunbridge Wells. I reiterate our support for the new clause and ask the Government to bring forward a new clause, perhaps on Report, to deal with this most horrendous crime.

[Laura Farris]

I thank my hon. Friend the Member for South Basildon and East Thurrock for his speech. I am grateful for the opportunity—

--- Later in debate ---

[Peter Dowd]

My hon. Friend gets right to the nub of this matter, and she is absolutely right. I agree with her point. Dr Gerry points out that the case of Fiaz, in which she was lead counsel, highlights the need for legal clarity. Judges are currently required to direct juries to consider the significance of a defendant’s contribution to an offence, and that is leading to numerous miscarriages of justice. Only Parliament can fix that.

I have a number of questions for the Minister. If the new clause is unnecessary, as may be claimed, can the Minister explain why when schoolchildren spontaneously gather for a fight and one of them unfortunately dies, they are sometimes all prosecuted even when they have had no contact with the victim and no weapon? That is one of the many such examples provided by Dr Gerry, who, as I said, was the lead counsel in the landmark Jogee case.

Is the Minister be willing to meet Dr Gerry and other experts in this field who can explain why this change of law is so badly needed? Can the Minister explain why the Crown Prosecution Service’s own database suggests that black people, as I indicated earlier, are 16 times more likely than white people to be prosecuted for homicide or attempted homicide under joint enterprise laws? What assessment have the Government made of the reasons behind that remarkable statistic? It is shocking. Is it not obvious why campaigners say that joint enterprise is too often used as a racist dragnet? Finally, will the Minister agree that it is not in the public interest to prosecute those who have not made a significant contribution to a crime?

[Alex Cunningham]

I begin by paying tribute to the work of my hon. Friend the Member for Bootle on the new clause, and the ongoing work of my hon. Friend the Member for Liverpool, Riverside (Kim Johnson), who we have already heard has introduced a private Member’s Bill to the House on the same issue. I am sure that Members across the Committee will share my admiration and respect for the campaigners from JENGbA, who have been tirelessly working on challenging injustices in joint enterprise convictions for well over a decade.

As we have just heard, the new clause mirrors the Joint Enterprise (Significant Contribution) Bill, which we hope will receive its Second Reading on Friday 2 February. I would prefer to see the Government making commitments on this matter, as it is a complex area of law and practice and any reforms will need careful consideration and monitoring to ensure that they are working, especially after the unexpected absence of change following the Jogee decision in 2016, which I will come back to later.

I am glad that the new clause has been tabled to enable a discussion in Committee, because the issue deserves more parliamentary time. Even though we have had many criminal justice Bills before this House in the past 10 years, all while alarms have been raised about continuing problems with joint enterprise law, Parliament has not engaged substantially with the issue for some time. During my tenure as shadow Justice Minister, I met the Centre for Crime and Justice Studies and the PCS, among others, and heard about ongoing challenges with joint enterprise convictions, despite the decision in Jogee and the very active collaboration between campaigners, legal practitioners and academics over the last decade. So I will be very interested to hear from the Minister about the work her Department has been doing in this area and, indeed, about any ongoing engagement it has had with campaigners, experts and practitioners who are collaborating on reform in this area.

The processes of prosecution and conviction in our criminal justice system should be fair, transparent and accountable, but joint enterprise law can be vague and confusing, and it can lead to apparently unjust outcomes. Some examples of individuals who are potentially at risk of being prosecuted under joint enterprise have been provided by Dr Felicity Gerry KC, who was the lead counsel in the case of Jogee. My hon. Friend the Member for Bootle has already outlined them to the Committee.

In 2016, when the Supreme Court ruled that the law of joint enterprise had taken a “wrong turn” for over 30 years, it restored the proper law of intention so that those who intended to commit or assist a crime, rather than those who might have foreseen it, could be properly convicted under joint enterprise law. These are all based on real cases, and as I have said, my hon. Friend has given the example of the taxi passenger getting out and becoming involved in a stabbing, or the woman who pulled somebody’s hair while trying to defend her boyfriend who may well have carried out a serious offence. Those individuals were charged under joint enterprise law, and they were at risk of extremely lengthy sentences, as if they were the primary offender, even when it is very difficult to discern how they contributed to the crime in question. Joint enterprise law has been used to convict young people who have not been present at the scene of the crime, and young people who listen to certain kinds of music, and there is a risk that such a trial focuses on character and culture, not contribution to a crime. My hon. Friend spoke about that in some detail. It is clear that joint enterprise law needs to be reformed in some way.

Last September, the CPS finally recorded and published a set of pilot data about joint enterprise cases, as a result of legal action by Liberty and JENGbA. While the results were shocking, they were, sadly, not surprising, as they confirmed much of what has been said by joint enterprise reformers for years. The data revealed that over half of those involved were aged under 25. Some 30% of the defendants in the cases were black, compared with the 4% of black people in the wider population, and black 18 to 24-year-olds were the largest demographic group identified in the pilot data. The data illustrated what we already knew about joint enterprise, which is that there is a serious racial disproportionality in its use.

The CPS pilot data suggests that black people are 16 times—I repeat, 16 times—more likely than white people to be prosecuted for homicide or attempted homicide under joint enterprise laws, which is a very significant divergence. I would be grateful to hear from the Minister the results of the data analysis, particularly about what she believes are the reasons behind the shocking disparities, given that the CPS has said that no conclusions about its decision making can be drawn from the pilot data. At the very least, we have to ask questions about the possibility that this level of divergence is at least in part caused by discriminatory practices in our criminal justice system. Looking at those figures, is the Minister confident that the framework for joint enterprise prosecutions is fit for purpose?

It has taken a number of years for the CPS to finally publish data on this important issue, but now that we have it, we must ensure that the Ministry of Justice is using that data to explore how it can best improve practice. I would also be grateful if the Minister could share any other plans for data collection and analysis in relation to the application of joint enterprise law, and anything she is aware of in the Ministry of Justice, the CPS or other Government body that is happening to progress this.

I was personally quite surprised at the scale of joint enterprise prosecutions, with the CPS data showing 680 defendants in 190 cases of homicide or attempted homicide across six of 14 CPS areas in just six months. That number is considerably higher than I would ever have anticipated. If the Minister has any thoughts on the number of prosecutions, I ask her to share them with the Committee. The high level of joint enterprise prosecutions demonstrates that at the very least it is an issue deserving of considerably more active consideration by parliamentarians and the Government.

Finally, I would be grateful if the Minister could speak to any discussions that she has had in her Department about the recent Fiaz case, in which the Court of Appeal suggested that a jury need not be specifically directed by the judge to consider the legal significance of a defendant’s contribution towards an offence. Dr Gerry has argued that the case highlights the need for additional legal clarity, as judges do not always direct juries to consider the significance of a defendant’s contribution toward an offence. Does the Minister also recognise the need for additional clarity in that area, and has her Department considered any means by which that may be achieved? It is an area with substantial cross-party recognition that more needs to be done to increase the fairness, transparency and accountability of prosecutions, and I look forward to hearing the Department’s position on the matter.

[Laura Farris]

I thank the hon. Member for Bootle for tabling new clause 16, which would amend section 8 of the Accessories and Abettors Act 1861 to provide that a person must have made a “significant contribution” to an offence committed as part of a joint enterprise to be indicted or punished as a principal offender. Its effect would be that the prosecution would have to identify the precise nature of the defendant’s role in aiding, abetting, procuring or counselling the commission of a crime committed in order to prove that the defendant had made a significant contribution—a threshold that need not currently be met.

Joint enterprise is a common law doctrine used in a variety of situations, most commonly to describe a situation in which two or more individuals have a common purpose to commit any criminal offence, or a secondary party encourages or assists the principal offender to commit an offence. It is a long-standing principle of criminal law that in either of those situations, both or all of the offenders may be held equally responsible and could be subject to the same penalty.

The hon. Member for Bootle has set out a number of examples, but I will start with a high-profile one. Members of the Committee may well recall the Victoria station attack in 2010, when a group of young men chased another young man over the ticket turnstile and down the escalator, where they set upon him. In the course of that attack, the young man was kicked in the head and torso repeatedly and was stabbed, and he died. At the end of it, the cause of death was multiple injuries, but it was impossible for the coroner to say who had struck the fatal blow with the knife or who had administered the fatal kick to the head. The whole group of assailants was put on trial; a number were convicted of murder and a number were convicted of manslaughter. That was classic joint enterprise, where they went with a common purpose to attack seriously an individual, and it could not be identified who had made the significant contribution, but the young man—the victim—was killed.

I say with great respect that R v. Jogee, which went before the Supreme Court in 2016 and to which the hon. Members for Stockton North and for Bootle both referred, was not an ordinary case. It was not even close to being an ordinary case. The Supreme Court reviewed 500 years of common-law jurisprudence on joint enterprise, and not only changed the law but issued really important guidance. I would like very briefly to talk the Committee through the framework that the Supreme Court applied, because it will help to explain why the Government will not accept new clause 16 today.

The Supreme Court said that it circumscribed the ambit of the offence and removed, as a matter of common law, the principle of parasitic accessory liability. To give an example that is sometimes given in case studies, if two people go to a farm with the purpose of stealing some farm machinery, and the farmer approaches them, and then person No. 1 pulls out a weapon and uses it on the farmer, that would not be decisive evidence that person No. 2 intended to kill or cause serious harm. That would previously have been the case under the principle of parasitic accessory liability, but the Supreme Court said that that went too far. In plain English, it said that joint enterprise cannot be inferred from the fact that it was foreseeable that a secondary offence would take place; there has to be an intention to assist. It said that the existence of foreseeability was something that the court should treat as evidence of intent, but was not necessarily decisive of it.

The judgment concluded by saying that joint enterprise essentially requires two elements. The first is a conduct element: the accessory must encourage or assist the crime committed by the principal. Secondly, the prosecution must show that the mental element existed, in other words that the accessory intended to encourage and assist the commission of the crime committed by the principal.

I have done a bit of a review of the case law—although I question whether it is helpful or unhelpful to go through case law during a Bill Committee in which nobody has the opportunity to read the case report—and am satisfied that there have been examples of case law since the Jogee case that show that approach being fairly applied. One example is of a group of young men who undertook a burglary on a care home. One person was tasked with searching the rooms before the others went in. In the course of events, one of the residents of the care home was brutally attacked. The young man who had done the search went in to try to stop it; he established that in court. He was convicted of burglary but not of the secondary attack, because that had not been his intention as part of the joint enterprise exercise.

--- Later in debate ---

[Carolyn Harris (Swansea East) (Lab)]

I rise to speak to new clause 49 on behalf of my hon. Friend the Member for Merthyr Tydfil and Rhymney (Gerald Jones) and others. The new clause would amend the Road Traffic Act 1988 to provide that dangerous and careless or inconsiderate driving offences may be committed on private land adjacent to the highway. In August 2017, 22-month-old Pearl Melody Black from Merthyr Tydfil was tragically killed while walking with her father and brother. Pearl was killed by an unoccupied vehicle that rolled from a private drive in Merthyr on to a highway and down a hill, crashing into a wall that subsequently crushed Pearl and injured her father and brother.

In the months after the incident, officers from the serious collision unit of South Wales police worked tirelessly to put together a case to provide justice for the family. In short, all tests concluded that the car was mechanically sound and that it had rolled because the handbrake was not fully engaged and the automatic transmission was not fully placed in park mode. The case was sent to the Crown Prosecution Service in March 2018 and was worked on by the London office as well as by an independent QC hired by the CPS. Everyone was hopeful of a conviction under the causing death by dangerous driving category, and the CPS looked at other possible options. However, in June 2018 the CPS stated that it was unable to send the case to court as a glitch in the law states that the vehicle must have started its journey on a public road for a prosecution under the Road Traffic Act 1988. Even though Pearl was killed on a public road, the fact that the vehicle started its descent from a private drive meant that prosecution was not possible.

The coroner stated that the vehicle was well maintained and it seemed that the issue was very much driver operation. The inquest heard that the handbrake had not been fully applied in park mode. The inquest into Pearl’s death was heard in October 2018 and the outcome was that it was an accident. However, with the support of South Wales police and the CPS, Pearl’s parents have been seeking a change in the law to prevent other families from being unable to secure justice due to a legal loophole following such a tragic and completely preventable accident as this. As Gemma and Paul acknowledge, it will not help to bring justice for Pearl, as legislation is not retrospective, but if this law can be changed to prevent anyone else from suffering this injustice again, it may provide some comfort.

My hon. Friend the Member for Merthyr Tydfil and Rhymney put forward a ten-minute rule Bill that had cross-party support, including mine, but it fell due to a lack of parliamentary time. Meetings with various Justice and Transport Ministers have been helpful in that they were all sympathetic, but there is currently no major transport Bill that could provide a vehicle for this change. This new clause would therefore allow for the change to be made.

It is wholly wrong that, in cases as tragic as the one I outlined, justice cannot be achieved. There can be no conviction simply because the land on which the incident took place is not classified as public. If the law were changed in relation to driving offences occurring on private land adjoining public land, that would be a powerful deterrent to road users being careless, as well as those who have no doubt exploited the current loopholes in the law to avoid conviction when they have undoubtedly been at fault. People would be more likely to take care and pay more attention when parking or driving on private land close to public land if they knew that there could be serious consequences for their careless and reckless behaviour.

There are a huge number of instances where private land adjoining public land is readily used and potentially dangerous to those around it, including residential driveways, schools and nurseries, supermarkets, shopping centres, hospitals and doctors’ surgeries to name some of the more common ones. When we consider those examples, we can see that driving on that specific category of land can present a high risk to people in everyday situations, and especially children, the elderly and some of the most vulnerable among us.

I am sure that all hon. Members agree that nobody who has suffered the loss of a loved one or had an accident or an injury as a result of a driving offence should have to endure the injustice of seeing those responsible go free simply because of a loophole in the law. Prosecutions for driving offences—indeed, for any illegal action—should be based on what happened, not where it happened.

[Alex Cunningham]

I shall be brief. My hon. Friends the Members for Bootle and for Swansea East have addressed new clauses 17, 18 and 49, and I pay tribute to them and to my hon. Friend the Member for Merthyr Tydfil and Rhymney for the work they have done on road traffic incidents. All three new clauses illustrate the need for a sentencing review for serious road traffic offences, and Labour is committed to doing that alongside sentencing for other serious crimes across the system.

The Minister and the Committee heard the tragic accounts outlined by my hon. Friends, including that of a runaway car that killed a young child. Sadly, in that case, there could be no justice for the child or her family as no offence related to the circumstances of her death. Surely that cannot be right. I am sure the Minister agrees that we have a duty to act in all three areas outlined in the new clauses. Has she examined the impact of those measures on cost, particularly in relation to the additional cost of prison places? If she has not, will she consider doing so before Report and share that information with the Committee, so that we are better informed? If she cannot support the new clauses today, I would be obliged if she told us what action, if any, her Department is considering for such offences and whether the Government plan to address them in the Bill at a later stage, or perhaps during Committee of the whole House on the Sentencing Bill, which I believe is due within the next few weeks.

There can be no doubt that the new clauses would close loopholes in the law that currently prevent families of loved ones killed in tragic circumstances from achieving either justice or closure. I look forward to the Minister’s response.

[Laura Farris]

I thank the hon. Members for Bootle and for Swansea East for compellingly setting out the impact of various forms of driving offence that are raised in our surgeries. When we talk about driving offences, there is often a narrow focus on things such as drink-driving for which the penalties are serious; we do not talk enough about things such as causing death by dangerous driving, which can be unbelievably reckless and irresponsible and cause the most serious harms.

The hit and run that the hon. Member for Bootle so powerfully described was an extension of dangerous driving. Whether panic, cowardice or other offences that the perpetrator is concerned about come to the fore, such incidents are absolutely devastating for the families of the victim. I therefore pay tribute to those hon. Members for the way in which they presented the new clauses.

It was helpful to hear that the hon. Member for Bottle is not wedded to the language he has used in his new clause. I had some remarks to make about that, but I will not spend too much time on that because of his indication. I do not know whether this applies to the hon. Member for Bootle too, but I understand that the hon. Member for Merthyr Tydfil and Rhymney is having conversations with the Department for Transport. I hope the hon. Member for Bootle will allow time for those conversations to happen and for us to engage with them before the Bill comes back. With all that in mind, I will lay out the framework for how we deal with the hit and run issue and I will then come on to the other points and where the Government’s thinking lies at present.

--- Later in debate ---

[Peter Dowd]

I hear what the Minister says, and I will withdraw the motion. It was a probing amendment in an attempt to give consideration to this issue, which affects so many people—our constituents—day in, day out; I gave the figures. As I said, I recuse myself from giving examples, because they are dreadfully distressing for people and I do not want to distress Members any more than I need to. I recused myself from giving examples, of which there are so many, but I hope the Minister hears the spirit of what I tried to say. It is not about people wanting vengeance; it is about getting an element of justice. I hope the Government will give serious consideration to these matters, because at some point they will come back.

I acknowledge and accept that this is not a transport Committee, but my proposals are within the scope of the Bill, so the Government have the power to pursue them if they wish. I ask the Ministers to take them away and think about them. I will be in touch with the Department for Transport, although, as I mentioned earlier, Departments are often packed out with work. None the less, this issue is of such import—it impacts on the lives of our constituents day in, day out—and we and the Government must consider it very carefully as early as practically possible. I beg to ask leave to withdraw the motion.

Motion, by leave, withdrawn.

New Clause 19

Use of another person’s dwelling place for criminal purposes: cuckooing

“(1) A person ‘P’ commits an offence if—

(a) P makes regular use of or takes up residence in a residential building lawfully occupied by another person ‘R’,

(b) P uses the residential building as a base for criminal activities including but not limited to—

(i) dealing, storing or taking unlawfully held controlled drugs,

(ii) facilitating sex work,

(iii) taking up residence without a lawful agreement with R in circumstances where R is under duress or otherwise being coerced or controlled, or

(iv) financially abusing R.

(2) For the purposes of this section—

(a) ‘building’ includes any structure or part of a structure (including a temporary or moveable structure), and

(b) a building is ‘residential’ if it is designed or adapted, before the time of entry, for use as a place to live.

(3) A person who commits an offence under this section is liable—

(a) on summary conviction, to imprisonment for a term not exceeding the general limit in a magistrates’ court or a fine (or both);

(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years or a fine (or both).”—(Alex Cunningham.)

This new clause would make cuckooing an offence. Cuckooing is where the home of a vulnerable person is taken over by a criminal in order to use it to deal, store or take drugs, facilitate sex work, as a place for them to live, or to financially abuse the occupier.

Brought up, and read the First time.

[Alex Cunningham]

I beg to move, That the clause be read a Second time.

The new clause would make cuckooing a specific offence. I believe that action on what should be a clearly defined crime has support across the House—including, I understand, from the right hon. Member for Chingford and Woodford Green (Sir Iain Duncan Smith) and the hon. Members for Hornchurch and Upminster (Julia Lopez), for Eastbourne (Caroline Ansell) and for Hertford and Stortford (Julie Marson), among others.

I have also received support from the Police Superintendents’ Association for the new clause. The PSA states:

“There is clear need for legislation of this kind, with evidence showing that cuckooing is a widely used tactic in many serious offences, including those linked to serious and organised crime, such as county lines drug supply and human trafficking. Vulnerable people are often targeted and exploited to facilitate long-term criminal operations, through the use of their property. These amendments would provide police and partners with an effective means of tackling this and better safeguarding those at risk.”

It goes on:

“Any legislation would need to ensure that evidence thresholds are clear and that exact wording around offences is robust, so that vulnerable people can be appropriately safeguarded. Vulnerability must be reflected in this legislation, with clear reference to those victims who consent to criminal activity under duress or who are unaware of the activity being carried out.”

The PSA raises other points that it believes should be considered:

“Inclusion of reference to evidence of a written legal agreement or clear proof which must be provided by a suspect, to show compliance on the part of any individual suspected of being subjected to cuckooing; Including local authorities as interested parties, with reference to ‘R’, as properties owned by local authorities or housing associations are typically used in the committing of these offences; Wider legislation for repeat offenders that move on to additional victims/properties.”

The National Crime Agency explains that cuckooing occurs when drug dealers or other criminals

“take over a local property, normally belonging to a vulnerable person”

and use it as a base from which to run their criminal activities, with the person still living in the property. I hope that, working across the Benches, we can ensure that those who prey on such people are properly held to account. Cuckooing is often associated with county lines drug supply, in which illegal drugs are transported from one area to another, often by children or vulnerable people who are coerced into doing so by organised criminal groups. It cannot be stressed enough that it can also be an independent venture, with one or more people preying on individuals by taking over their homes and controlling their lives. As well as having to live with what is effectively a drugs—or other crime—den in their own home, the victims may see their home being used for accommodating sex work, or be financially abused by the criminals.

Cuckooing is a terrifying experience for the vulnerable adults who are targeted by these criminals. I do not think that any of us can comprehend what it would mean to have our home taken over in such a way. I suspect that there is not a member of this Committee who does not have a vulnerable adult in their constituency or know someone who lives alone and could be targeted by such unscrupulous criminals. Everyone should feel safe in their home.

Police work with local authorities to deliver a safeguarding response for victims of cuckooing. For example, the Metropolitan Police Service has dedicated cuckooing officers, who work with partners to safeguard victims and divert them from the criminal justice system. However, cuckooing is not defined in legislation and is not a specific offence, and data on cuckooing is limited. An article in Inside Housing in November 2023 showed that only seven police forces recorded cases of cuckooing, and many local authorities do not record cases either, as analysis by the London Assembly Labour group last year showed. I do not know why we do not have more records of this kind of behaviour. I suspect that it goes on across the country, particularly in areas of deprivation and areas where vulnerable people do not have the support that some of us would hope for and expect. Perhaps the Minister could outline any plans she may have to require crimes of this nature to be reported.

Because of the sensitive nature of the crime and the vulnerability of the victims, it is difficult to illustrate it in any detail. One example that has come to light involves a vulnerable man in Leytonstone whose mother died two years ago. His life effectively fell apart, and he had difficulty coping. His house was taken over by a criminal—or perhaps criminals—who has been using it for drug dealing, possibly prostitution and other criminal activities. I am told that the takeover of this vulnerable person’s home happened in what is considered a nice residential street, so as one can imagine it has been a massive shock for all the neighbours.

As it stands, the law does not provide sufficient authority to enable the police and local authority to address the situation properly. If our new clause had already existed, there could have been an earlier and therefore more effective intervention to protect this man, whose life in his own home has been made hell. I hope, for that reason alone, that the Committee and Government will support our new clause. The Ministers and Government Members can feel entirely comfortable in doing so, as it is Conservative policy—or, at least, it was until late last year.

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[Alex Cunningham]

Subsection (1)(b)(iii) includes

“taking up residence without a lawful agreement with R in circumstances where R is under duress or otherwise being coerced or controlled”.

It does address coercion.

[Chris Philp]

With respect, those sub-limbs of paragraph (b) say “or”. It is only one of those requirements that needs to be met, not all of them. Although it is true that in the hon. Member’s drafting, subsection (1)(b)(iii) does require coercion or duress, the other sub-limbs—(i) and (ii) in particular—do not require duress. If that had been an “and”, it would be different. That would require all the conditions to be met, including criminality and duress. However, because the end of the line in sub-paragraph (iii) says “or”, that is only one possible sub-limb that can be met. The other sub-limbs, which the criminal offence includes but is not limited to, could be engaged as well. For example, if somebody was dealing drugs, that would engage paragraph (b)(i) even if there was no control or coercion. I think the Committee can see that because of that word “or”—

Criminal Justice Bill

Alex Cunningham Excerpts

Report stage
Wednesday 15th May 2024 Commons Chamber

[Mr Deputy Speaker (Sir Roger Gale)]

I call the Opposition spokesperson.

[Alex Cunningham (Stockton North) (Lab)]

We are finally here, 18 weeks since Committee stage was completed. The Government are running scared, not just from us on the Opposition Benches but from their own Members. We very much welcome the huge piles of concessions made and the clauses withdrawn. I give credit to Members across the Benches for holding the Government to account. Surely, the Bill must be one of the best examples ever of how not to create new legislation, with dozens of Government amendments in Committee and now dozens more on Report, as well as many new clauses from Ministers. By Friday evening there were as many as 70 pages of them from the Government alone.

[Katherine Fletcher (South Ribble) (Con)]

The hon. Gentleman seems to suggest that Ministers should not listen to cases made by Members on both sides of the House.

[Alex Cunningham]

It is to the Government’s credit that they have listened to people across the piece. However, huge numbers of clauses and new ideas have been brought forward by the Government, which were not tabled in Committee or even mentioned on Second Reading. As my hon. Friend the Member for Poplar and Limehouse (Apsana Begum) said, this is not the way to do business.

Let me address the many Government new clauses and amendments, and those in my name and that of my partner in crime, the hon. Member for Nottingham North (Alex Norris), and those in the name of my hon. Friend the Member for Birmingham, Ladywood (Shabana Mahmood) and others. Starting with amendment 56 in the name of my hon. Friend the hon. Member for Nottingham North, and Government new clause 86, the creation of deepfake pornography is a modern phenomenon, but one with very traditional intention: to cause humiliation, distress and public embarrassment, and to weaken the victims’ relationships.

It is right that, as the technology becomes more sophisticated, so do the legal protections. On Second Reading and in Committee we welcomed the Bill’s provisions on intimate photographs or films and voyeurism. Sexual offending in the online and digital word continues to grow at a terrifying pace. The rise in deepfakes is concerning for a variety of reasons, not least for the impact on political debate and the spread of false information. I have also been horrified by reports of the use of deepfakes to sexually harass and humiliate individuals. The exponential rise in the use of explicit deepfake images demands urgent legislative action. Creating an explicit deepfake without someone’s consent is a deeply violating act, one that causes victims to feel embarrassed, alarmed and unsafe.

I commend my hon. Friend the Member for Luton North (Sarah Owen) for her work on new clause 43. It would create an offence of creating or sharing misleading content. Such content can reach a wide audience in a short space of time, with questions over legitimacy coming far too late, when the harm has already been done. My hon. Friend recognises the impact that such abuse of technology has on our democracy.

--- Later in debate ---

[Dame Maria Miller]

On new clause 86, does the hon. Gentleman share the concern of many women outside this place about the almost backward step the Government have taken by not focusing on a base offence relating to people giving consent to their images being used? I thought we had won that argument, but that seems to have evaporated. That was central to the Online Safety Act 2023. Why is he not pressing for that change, as others are outside this place?

[Alex Cunningham]

The right hon. Member makes a strong point, and it is up to the Government to respond to it. We believe that we should extend all protections to women in all circumstances.

We welcome amendment 160 in the name of the Chair of the Women and Equalities Committee, the right hon. Member for Romsey and Southampton North (Caroline Nokes). The Online Safety Act made significant progress on intimate image abuse, or revenge porn, which is an abhorrent crime, and it is right that, through this Bill, we continue the good work done through that Act. We therefore support amendment 160, which would make offence relating to non-consensual intimate photographs or films priority offences under the Online Safety Act. That will ensure that this heinous practice is treated seriously and dealt with proactively, so that the harm it causes is reduced.

New clause 87 makes it an aggravating factor if an offence of manslaughter involves sexual conduct, and does the same for the corresponding service offence. The Government had support from across the House when they restated in statute, in the Domestic Abuse Act 2021, that

“a person is unable to consent to the infliction of harm that results in actual bodily harm or…their own death, for the purposes of obtaining sexual gratification”.

It will therefore not surprise the Government to hear that the new clause has the support of Labour Members. We are all aware of the high-profile cases in which women have been killed as a result of allegedly consensual sado-masochistic acts of violence during sex. We share the Government’s ambition to do more on the issue, in recognition of the serious public concerns about these horrific cases.

Amendment 57, in my name, would ensure that when courts ordered a defendant to attend sentencing, they first satisfied themselves that that would not put their staff at risk. Government amendments 149 and 150 lower the threshold for the availability of the new power to order an offender to attend a sentencing hearing, so that it applies where an offence is punishable with imprisonment for 14 years or more.

Clause 28 comes in the wake of a dismaying trend of high-profile criminals opting not to attend their sentencing hearing. Former neonatal nurse Lucy Letby did that in August last year. She refused to attend her sentencing hearing for the murder of seven babies, and the attempted murder of another six entrusted to her care. Having also refused to attend via video link, she remained in the cells below Manchester Crown court as bereaved family members delivered victim personal statements, and the judge passed a whole life order in her absence. In April last year, Thomas Cashman exploited the same procedural rule by refusing to attend his sentencing hearing. He travelled to Manchester Crown court, but declined to leave his cell, claiming that he had been provoked by court officials. He received a sentence of life imprisonment, with a minimum term of 42 years, for the fatal shooting of nine-year-old Olivia Pratt-Korbel in her home. We share the view that, wherever possible, defendants ought to hear the victim impact statements setting out how victims and families have been affected by the crime.

In Committee, the Under-Secretary of State for the Home Department, the hon. Member for Newbury (Laura Farris), accepted that

“the judge now has discretion to make such an order, but we have found that it is not evenly or always applied”––[Official Report, Criminal Justice Public Bill Committee, 16 January 2024; c. 244.]

as in the case of Lucy Letby, where the judge did not compel her attendance. The Minister said that putting the measure in the Bill would ensure a power in statute for a judge to compel a person to attend their sentencing for any serious offence for which the maximum sentence is a life sentence. The Government’s pages of amendments include those to clause 28, and we are supportive of all efforts to improve the Bill’s workability. I said in Committee that there is nothing in the Government’s explanatory notes about the resources needed to deliver the policy. Likewise, there was little if anything about how the staff who would be at the sharp end of delivering a defendant to court will be protected. The charity Justice raised the concern with me that the policy puts staff at risk; it is questionable whether the discretion to use force in proposed new section 41B(4) of the Sentencing Code is real, or merely apparent, in view of proposed new section 41B(6).

[Sir Robert Neill]

I have a lot of sympathy with the points the shadow Minister is making. It is right that there should be a power—I think we all agree—to prevent vile offenders from showing the cowardly behaviour of not facing the relatives and hearing their sentence in person. However, the Professional Trades Union for Prison, Correctional and Secure Psychiatric Workers has a concern, which he rightly raises. Prison officers already put their life on the line every day—they can be subject to violence when going about their work in prisons—but there is a particular concern. We are extending the measure to a wider range of offences, and very often, those involved in bringing people to court are contractors—from, say, Serco—who may not have the experience or training to deal with these rather difficult situations. It is perhaps therefore all the more important that there be proper consultation with the workforce who will be at the sharp end, as he says.

[Alex Cunningham]

Indeed; that is very much the case. A few paragraphs further on in my speech, I will address that point specifically, as I did in Committee.

Proposed new section 41B(6) states:

“A person is to be treated as having complied with an order under subsection (2) if they have done all that they reasonably can to secure that the offender is produced before the court for the sentencing hearing.”

Given that subsection (4) provides the authority to use “reasonable force”, those responsible for producing the offender who fail to use such force are arguably at risk of being held in contempt for failing to comply with a court order. Prison governors and custody officers are accordingly placed in an invidious position. In her letter to me dated 1 March, the Minister said:

“Prison officers and Prison Escort and Custody Service staff are trained in control and restraint techniques, and we would expect them to use these skills to enforce a lawfully given order that an offender should attend court. Further guidance, training and, if required, personal protective equipment will be provided to ensure that prison and escort staff are fully supported to affect such court orders. The security and safety of prisoners, and well-being of prison officers will remain a priority.”

When I first considered clause 28, I made enquiries about how reasonable force is currently used by prison officers to deliver a defendant to court. It came as a surprise to me to learn that it involves three prison officers in full riot gear, including overalls, gloves, steel-toed boots, helmets and shields, approaching the prisoner, securing them and getting them into the transport vehicle. Their job is then complete, and responsibility passes to the private security firm staff to deliver the defendant to the court. Unlike the prison officers, neither private security staff nor receiving court staff are equipped with the personal protective equipment or the training to transfer the defendant first into the court cell and then to the dock. That was exactly the point raised by the Chair of the Justice Committee, the hon. and learned Member for Bromley and Chislehurst (Sir Robert Neill). I want to raise again with the Minister the question of whether the clause will ensure that all staff involved in producing a prisoner at their sentencing hearing are protected, all the way from the cells to the dock, and probably while the prisoner is in the dock as well. I have brought back amendment 57 in the absence of clarity from the Minister about how that would work in practice. I would welcome her further comments.

Amendment 58 would exclude some types of prisoner from being issued with a warrant to serve a sentence in a foreign country. It would exclude people with less than six months to serve, those serving indeterminate sentences for public protection, and those who need to be detained in the UK for education or training purposes, or for legal proceedings, such as parole. I accept what the Minister said about that in her speech.

In Committee, I raised the subject of the failure of the Bill and the accompanying notes to provide detail on exactly how the scheme to transfer prisoners abroad would work, who the partner countries would be, and where their responsibilities would lie. The Minister said that the amendment that I had tabled made “sensible” points, but that the Government

“believe that they are best addressed through policy, based on…expertise from within the prison system, not set out in primary legislation.”

She also told me that it was her “understanding” that no prisoners would be moved to countries not covered by the European convention on human rights, and I welcome what she has said about that today. Again referring to me, the Minister said:

“He…asked about the availability of legal advice…First of all, the whole landscape of court procedure has changed in the last few years. Receiving legal advice can be done remotely, and court proceedings often take place remotely via a live link.”––[Official Report, Criminal Justice Public Bill Committee, 18 January 2024; c. 280-281.]

That is supposed to mitigate the fact that someone is in a cell abroad.

The Minister was also at pains to point out that 10% of prisoners were foreign nationals, so

“family and primary care considerations are already rather different”.––[Official Report, Criminal Justice Public Bill Committee, 18 January 2024; c. 282.]

Perhaps there is a clue there, suggesting that it is foreign offenders and not British nationals whom the Government really want to send overseas. The Minister has talked of only 600 prisoners being affected by this policy, and I welcome her assurance that no women will be affected. I know that the Government are negotiating with some countries about where the prisoners will go, but we do not have the fine detail that we need in order to understand whether the policy will be effective. The Minister herself acknowledged that

“there is not much detail in the Bill”,

but said that the Government were developing

“primary legislation to create the framework for the agreements.”––[Official Report, Criminal Justice Public Bill Committee, 18 January 2024; c. 287.]

She was referring, of course, to agreements that had not yet been made. However, policy changes all the time, so we need to nail down the provisions in the Bill and who will be included and excluded.

Amendments 59 to 62 amend clause 35, which relates to transferring prisoners to foreign prisons. Amendment 59

“would require the Controller to make a report to the Secretary of State on any breaches of the arrangement between the foreign country and the UK.”

Clause 28 of the original Bill provides for the Secretary of State to appoint a controller to keep under review and report on the running of any rented prison spaces abroad. It also extends the power of His Majesty’s chief inspector of prisons to inspect and report on the conditions in such places. The Bill, however, places a great deal of unaccountable authority in the hands of the Executive, who can make provision for any arrangement by means of secondary legislation. It is silent on how those subject to this arrangement will be treated. Similarly, it provides no guarantee that the prison rules in secondary legislation, which govern crucial issues including segregation, complaints and the use of force, would apply. I hope the Government share my view that any agreement made between the UK and a foreign state should be subject to full parliamentary scrutiny and oversight. Amendment 59 would help to enable that to happen by requiring the controller to report any breaches of the arrangement to the Secretary of State.

Amendment 60 would ensure that the prisons inspectorate “must” conduct the duties specified in proposed new subsection 5D in section 5A of the Prisons Act 1952, and would ensure its consistency with the legislative basis for its role in England and Wales. We fear that the oversight of both the controller and His Majesty’s inspectorate of prisons will ultimately be subject to negotiation with a relevant partner country. The wording in the Bill relating to the powers of the inspectorate differs from the wording in the Prisons Act, in that it states that the chief inspector “may”, rather than “shall”, inspect. The implication is that inspections could take place only by invitation of the foreign state, rather than as a statutory requirement. That leaves open to future negotiation crucial aspects of HMIP’s role and methodology, such as its ability to conduct unannounced inspections, to speak to prisoners in private, and to access records such as those relating to the use of force, which would mean that a lower standard of independent scrutiny would be applied to the treatment and conditions of UK prisoners held under such arrangements. Amending the Bill to ensure that HMIP can perform its duties under the optional protocol to the convention against torture and other cruel, inhuman or degrading treatment or punishment is an important safeguard to ensure rigorous, independent scrutiny.

Amendment 61 would ensure that HMIP could inspect escort arrangements under which prisoners are transferred to foreign prisons. Clause 28 of the original Bill specifies that the chief inspector may inspect or arrange for the inspection of any prisons where prisoners are detained under an arrangement between the UK and a foreign state. The inspectorate’s powers to inspect escort arrangements were made by amendments to the Prisons Act in section 46 of the Immigration, Asylum and Nationality Act 2006. It is particularly important that the inspectorate should also be able to inspect the escort arrangements for the transfer of UK prisoners to foreign prisons. Our amendment would bring the legislation into line with the inspectorate’s powers in relation to prisons in England and Wales by also enabling it to inspect or arrange for the inspection of escort arrangements. A foreign state with which the UK makes an agreement could potentially be many thousands of miles from the UK. The transfer of prisoners could involve a lengthy journey including a variety of modes of transport such as, potentially, prison vans, planes, trains and ferries. The potential for trouble appears limitless.