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 (Eighth sitting)

Alex Cunningham Excerpts

Committee stage
Tuesday 16th January 2024 Public Bill Committees

[Laura Farris]

Let me revert to the hon. Gentleman in writing on that point. I conceded that there is no guarantee that every single offender will attend their sentencing, but the Bill provides a power for a Crown court judge to order that to happen in certain circumstances. It will also ensure that serious offenders who fail to attend receive punishment. That sends the clear message that offenders are expected to attend their sentencing hearing, and that the wider public have the right to see that justice is done. I commend the clause to the Committee.

[Alex Cunningham (Stockton North) (Lab)]

It is a pleasure to serve under your chairmanship, Ms Bardell. I assure the Minister that in the interests of a continuing atmosphere of co-operative working, I, like my hon. Friend the shadow Minister for policing, will be constructive in my comments, to enable the Government to justify their legislation by explaining how it will work. Where we have reservations or see the need to offer new ideas, we will do so to help them get it right. I am sure that they are as keen as we are to improve this Bill and ensure it is fit for purpose. Judging by the huge number of Government amendments, they have already recognised at least some of its weaknesses.

As outlined, the first part of clause 22 enables the Crown court to directly order an individual to attend their sentencing hearing by creating an express statutory power to make an attendance order. According to the Library research document, and as the Minister mentioned, any adult who refuses to attend without reasonable excuse will commit a contempt and therefore faces a maximum penalty of an additional custodial sentence of up to 24 months. Any child who refuses to attend faces a penalty of £2,500, but I wonder how a child will ever be in a position to pay such a penalty, particularly if they are given a custodial sentence.

The second part of the clause creates an express power for judges to require prisons to produce adults to court for sentencing hearings. It also makes it clear that prison officers and prisoner escort officers may use reasonable force to produce an adult to court for their sentencing hearing where that is necessary and proportionate. However, the final decision on whether to use reasonable force remains with the prison and escorting staff. Children will not be subject to use of reasonable force for this purpose, in line with domestic policy, guided by the Taylor review of 2020 and the UK’s commitments under the UN convention on the rights of the child. We can only welcome that.

There are many questions that the Minister needs to answer about how easy it will be to implement this policy. We will not oppose the clause, but would like her to spell out how practical it is, and what alternative provision she has in mind if it is impossible to compel a defendant to attend a sentencing hearing.

There is nothing in the Government’s explanatory notes about the resources needed to deliver the policy, and I hope that the Minister will address that. If it is not resourced, it simply will not happen, so we seek clarity there. Likewise, there is little if anything about how the staff who will be at the sharp end of delivering a defendant to court will be protected.

We would also like to understand what the new law would add to judges’ existing powers to compel people to attend their sentencing hearing. Above all, we would like to explore with the Minister whether this new law could actually work, and whether it is in the best interests of the victims. We do not want them to be further traumatised by the sentencing hearing.

We know why this proposal is being brought forward. The Minister talked about a number of high-profile cases in which the defendants refused to attend their sentencing hearing. There have been many: Zahid Younis, in September 2020, sentenced for the murder of Henriett Szucs and Mihrican Mustafa; Koci Selamaj, in April 2022, for the murder of Sabina Nessa; Jordan McSweeney, in December 2022, for the murder of Zara Aleena;Thomas Cashman, in July 2023, for the murder of Olivia Pratt-Korbel; and of course Lucy Letby, in August 2023, for the murder and attempted murder of 13 infants. In those cases, the families never had the chance to look the killer in the eye, or to spell out the effects of their loss.

Perhaps that is why the witnesses we questioned at the start of this Bill’s progress in Committee were supportive of the new law, though from the quotations I am about to use from their evidence, it is clear that many questions are still to be answered. Baljit Ubhey, director of strategy and policy at the Crown Prosecution Service—apologies if I mispronounce these names—described it as

“an important measure, given some of the high-profile cases we have seen and the impact they have had on victims.”

She went on:

“We will have to look very carefully at how we apply for that power—which allows the court or the prosecutor to apply for compulsory attendance—and seek victims’ views”.

Others have made that point this afternoon. She went on:

“The consideration to think about is whether that would cause extra violence. There is something in the Bill about the use of force, which prison custody officers would need to think about”.

I will address that in detail later. Baljit went on:

“I can see why it is in the Bill, but we will have to wait and see how it operates in practice.”––[Official Report, Criminal Justice Public Bill Committee, 12 December 2023; c. 20, Q46.]

Baroness Newlove, the Victims’ Commissioner for England and Wales, expressed concerns about victims:

“In terms of victims and their families, both personally and professionally assumptions are made about them when people do not even understand the victim’s journey. I get annoyed at that. I think this is a very important point, because victims sit there for weeks…on end, listening to evidence and having no voice at all. Part of the victims code is to have the victim impact statement, and there is the ability to read it out if there is conviction. I think it should be respected that the family have that kind of relationship, because they have listened to that evidence about their loved ones.”

She went on:

“I also think that you do not know how to judge an offender. They could say that they are coming in the dock and then not play ball. I have seen for myself—evidence shows this—that even through the court trial they will turn their backs, goad you and do everything. If it is still to the judge’s discretion and direction, I would like—I have said this previously—for the judge to own the courtroom if the offender does play in the dock and does not respect the perimeters. Victims’ families are told to respect the perimeters of the courtroom, and the judiciary needs to have that respect. If it happens that they do not want to turn up in dock, a deadline should be put on what is going on. If not, put something in their cell if they are in the court building.”––[Official Report, Criminal Justice Public Bill Committee, 12 December 2023; c. 25, Q59.]

I ask the Minister to address Baroness Newlove’s concerns, which many of us in Committee share, and specifically the concern about how a defendant kicking off will be dealt with under this proposed new law.

Dame Vera Baird KC, the former Victims’ Commissioner, questioned the need for the clause at all:

“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.”

When I pointed out to her during the evidence session that the

“clause actually talks about using ‘reasonable force’”,

she responded:

“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”—

just as in the proposals before us—

“And guess what the maximum sentence is for a contempt of 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.”

Later on, she said:

“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.”––[Official Report, Criminal Justice Public Bill Committee, 12 December 2023; c. 59-60, Q156-157.]

I hope that the Minister will take the time to outline just what her proposal adds to the law, and what alternatives there are to forcing an angry, abusive and possibly violent defendant to sit in the dock.

I will now move on to proposed new section 41B(4) of the sentencing code, which refers to using “reasonable force” to ensure that a defendant attends court. We heard evidence from Mark Fairhurst, chairman of the Prison Officers Association, on the issue. Members will recollect that he told the Committee that he saw no problem for his members in delivering their role in the policy. He told us:

“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.”––[Official Report, Criminal Justice Public Bill Committee, 14 December 2023; c. 96, Q39.]

I have made some inquiries about how reasonable force is currently used by prison officers to deliver a defendant into the hands of the security company or court that receives them. It came as a surprise 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 either the personal protective equipment or the training to transfer the defendant first into the court cell and then to the dock.

That level of restraint of a defendant, and risk to employees of the court or agency staff, may be required only occasionally, but what training and equipment will agency and court staff be provided with to ensure that they are as protected as our prison officers? Training is a real issue, and I would be obliged if the Minister would outline what training staff will receive to ensure their and the defendant’s safety. What financial provision has been or will be made to provide such support for staff? The Minister will be the first to recognise our duty of care to these people. If she wants the measure to succeed, she must outline to the Committee exactly how it can be implemented safely. What risk assessment of the whole policy has been conducted? Perhaps more relevantly, what risk assessments will be conducted each time the measure is applied?

I mentioned the case of Lucy Letby. She refused to attend her sentencing hearing and 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. Like Letby, Thomas Cashman travelled to Manchester Crown court but declined to leave his cell for his sentencing hearing, claiming that he had been provoked by court officials.

Assuming that the Minister’s intention is that defendants such as Letby and Cashman would be forced into court, can she advise how that will be done, and whether she believes such an action is in the best interests of the victims? Perhaps she believes that sanctions can be placed on such people. However, in Letby’s case, the threat of a lengthier sentence would be entirely pointless, because the sentence of life without parole is the most severe penalty the law of England and Wales allows. What sanction can be placed on an offender who knows that the judge will pass a whole life order? Will they be refused visiting rights, or other rights enjoyed by prisoners? What are the Minister’s thoughts on Baroness Newlove’s view that, if defendants object to leaving their cell, a live link should be set up inside? That is also the view of the former Lord Chief Justice, as we heard. It is hard to see how that will be achieved when our justice system’s funding is already stretched to the limit. Perhaps the Minister can also address that.

The charity Justice is also cautious about the introduction of new powers to compel defendants’ attendance at sentencing heroes—hearings. Not heroes; there are no heroes in this business. The charity said that the new powers are unlikely to address the issue in a positive manner:

“A statutory power to require individuals facing a life sentence to attend sentencing hearings is at best unnecessary and at worst, when backed by force, dangerous.”

The briefing from Justice aligns with others in saying that this policy puts staff at risk. It goes on to say that it is questionable whether the discretion to use force in proposed new clause 41B(4) is real, or merely apparent in view of subsection (6). That subsection provides that 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, failure to use such force when it is available arguably places those responsible for securing production at risk of being held in contempt themselves for failing to comply with a court order. Prison governors and custody officers are accordingly placed in an invidious position.

--- Later in debate ---

[Laura Farris]

I thank the hon. Gentleman for his remarks. I would like to clarify immediately that attendance by video link is attendance. If the judge deems that the person would be disruptive in the courtroom, they will still be deemed to have attended if there is a live video link to the cell.

I think the hon. Gentleman asked about methods of restraint, and I will deal with that through two points. It is, of course, within the power of the Prison Service to have the person restrained in the cell, so that they are compelled to listen to the judge’s sentencing remarks. Prison officers are familiar with exercising restraint, and with moving disruptive or reluctant prisoners around the estate, and out of the estate into court.

The hon. Gentleman asked whether court security staff would have sufficient training and would be able to carry out their role. That is a fair point, but they are protected at work under the Health and Safety at Work etc. Act 1974 and the Manual Handling Operations Regulations 1992, which would cover something like this. It would be for the employer to ensure that staff are reasonably safe in carrying out roles. I would anticipate that a judge could take this issue into consideration in making their order in the first place. I remind him that there is more than one way that a person can be compelled to attend their sentencing hearing.

[Alex Cunningham]

I gave the example of prison officers in full riot gear, and with shields, restraining a prisoner. Is the Minister really saying that the employer will be responsible for providing similar equipment to court staff, to ensure that they carry out this policy?

[Laura Farris]

Just to be clear, that is not the statutory duty that would apply. If somebody was deemed to be that level of violent, threatening or difficult, one might assume that the judge consider that very carefully and exercise their discretion. I have said that there is more than one way that attendance is deemed to have taken place, and it does not involve being dragged kicking and screaming into the courtroom. I hope that answers some of the questions. The duty on the employer is to create a reasonably safe place of work, obviously within the parameters that some court staff are engaged in a security capacity and therefore a more robust form of engagement might be reasonably anticipated. I will leave that there.

The hon. Gentleman made a good point about the sanction. If somebody faces a whole-life tariff, why does adding a couple of years matter? It is true that with a whole-life tariff, a person probably has the greatest difficulty with an increased sentence, but I remind the hon. Gentleman very gently of Jordan McSweeney, who used that argument when he said he would not attend. This was reported. He said he did not want to go to court and did not care because he was going to get a long sentence anyway. He got 37 years. But shortly afterwards he was in the Court of Appeal, appealing against his sentence. He was successful and got it reduced by four years. So he did care about the length of his sentence. I think that rather negates that point, if I may say so.

A point was made by the former Victims’ Commissioner, Vera Baird, that I want to take forward. I tried to make this point in my speech, but perhaps I was not clear enough. We accept that the judge now has discretion to make such an order, but we have found that it is not evenly or always applied. It depends who the judge is and where they are sitting. By putting the measure in the Bill, we are creating a power in statute for a judge to make an order to compel a person to attend their sentencing for any serious offence where the maximum is a life sentence, as I have said. That is a change. In proposed new section 41B, the judges can direct a prison to produce any adult offender irrespective of the offence.

[Alex Cunningham]

I am grateful to the Minister for giving way, but I do not accept her explanation of how this adds to the law. Perhaps she would like to take it away and come back to the Committee to spell out exactly how it does. Her explanation, I am afraid, did not cut it.

[Laura Farris]

Let me give the hon. Gentleman a practical illustration. Lucy Letby was not compelled to attend her sentencing hearing. She was a young woman in her early 30s and not obviously a massive danger to the victims’ families or somebody who was going to be disruptive, yet the judge did not compel her attendance. We think that the provisions in the Bill alter that and make it far more likely that somebody would be required to attend their hearing.

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[The Chair]

Order. Before the hon. Member for Stockton North intervenes, I have been very flexible, but I remind Members to adhere to the regular rules of the House and speak through the Chair rather than referring to each other as “you”. I know that it is difficult because you are all sitting opposite each other, but it would be helpful, particularly for Hansard colleagues.

[Alex Cunningham]

The Minister’s point about the trend in high-profile criminals opting not to face the music in court was well made. That is why we certainly will not oppose, and in fact support, this provision. However, it is fair for us to ask and understand exactly how these things will happen. The Minister suggests that the provision is different from the existing powers. Does that mean that perhaps through the judiciary, the judges will be given some form of direction in relation to this piece of legislation that will say to them that if a defendant refuses to appear, they must consider whether they are going to compel them to do so? Or will we be in the same place as we are now, where it is just up to the judge whether it suits him or not?

[Laura Farris]

The statutory intention is that judges will exercise this power. It is plainly recognised and has been well publicised that there is public opprobrium towards the idea that the defendant, particularly in very serious cases, somehow has any kind of control at the end of the process. To be completely honest, the video link would not have been a viable option for a judge until very recently—probably in the life of this Parliament since the general election—but now that that exists, we would reasonably expect judges to make that order as a minimum quite frequently.

Question put and agreed to.

Clause 22 accordingly ordered to stand part of the Bill.

Clause 23

Child sex offences: grooming aggravating factor

Amendment made: 36, in clause 23, page 22, line 11, at end insert—

“(2) In section 238 of the Armed Forces Act 2006 (deciding the seriousness of an offence), after subsection (7) insert—

‘(8) In section 70A of the Sentencing Code (sexual grooming of child as aggravating factor)—

(a) the references in that section to a court are to be read as including a court dealing with an offender for a service offence, and

(b) the reference in subsection (1) to a specified child sex offence is to be read as a reference to an offence under section 42 as respects which the corresponding offence under the law of England and Wales is a specified child sex offence.’”—(Laura Farris.)

This amendment modifies section 70A of the Sentencing Code (inserted by clause 23), as it applies under the Armed Forces Act 2006.

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

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[Jess Phillips]

It is a pleasure to serve under your chairship once again, Ms Bardell. I am pleased that the Minister leaned on it being a year on from the child abuse inquiry—not one of whose recommendations, I think it is fair to say, has yet come to fruition. Well, hope springs eternal for this year! There are plenty of recommendations for the Government to crack on with in this regard, and I look forward to seeing some sort of timeline from the Home Office of any progress in that particular area.

New clause 25, which I tabled, seeks to try to include adult grooming victims on the same footing as children. The grooming of adults is widely and wildly misunderstood, despite there being considerable overlaps of perpetrators and, in fact, perpetrator behaviours and tactics of those seen in cases of child sexual grooming.

At the moment, sexual grooming is a crime only when the victim is a child, but grooming can and does happen to adults as well. It is a technique used by perpetrators to ensure compliance on the part of the victim and to avoid detection, as the victim’s actions are more likely to appear consensual when they are being groomed. Grooming is a deliberate process of limiting the freedoms of a person by gaining control over them and creating a dependency.

New clause 25 would make an aggravating factor of grooming in certain adult cases, including around domestic and sexual abuse. That would both challenge the misconception that adults cannot be groomed and send a message to perpetrators of domestic and sexual abuse that the grooming of adults is being taken seriously and will not be tolerated.

The 2018 Spicer report acknowledged for the first time that not only children but women over 18 are being groomed and sexually exploited. Since 2019, STAGE, the partnership against adult sexual exploitation—I make a declaration that I am the chair—has supported over 700 adult women who have experienced grooming just in the north-east and Yorkshire. The issue is widespread and prevalent in every part of the UK, but is under-represented in UK legislation.

STAGE’s work has confirmed that grooming is a common technique used to manipulate people for sexual exploitation. It has a negative impact on people’s ability to consent and to make capacitated decisions. However, for adults who have experienced grooming, this is often reduced to making “poor life choices”, because of the belief that grooming can only happen to children.

Everything that we heard yesterday about what was said to the girls in Rochdale is being said today to somebody over the age of 18, or even to somebody of the age of 18. Adult victims of grooming are repeatedly asked victim-blaming questions such as “Why did you get back in the car?”, “Why did you stay with them?” and “Why didn’t you leave?” by professionals and services that are meant to be protecting them. This ignores the immense impact of grooming. Because of this, many victims and survivors feel unable to leave their perpetrator, or may not even recognise the abuse that they are experiencing. Until the grooming of adults is recognised in legislation, it will continue to be misunderstood by law enforcement and the criminal justice system, and victims will not be adequately protected. That is why I have tabled new clause 25.

Yesterday, in the light of the Rochdale report, I thought of a woman I had supported. I wanted to make sure, because of the media, that she was okay, because when these sorts of things happen it is pretty traumatic for women who have been exploited in childhood and adulthood. She is 27 years old, so the legislation we are debating would not include her. I needed to search through my email to find her phone number. I found among my emails a letter that I had forgotten, which she had written to the now ex-Home Secretary, the right hon. and learned Member for Fareham (Suella Braverman). I will read it now:

“Following on from your statement on the 2nd of April 2023, I am writing this letter as a victim who has been let down by countless professionals and services, but worryingly the Home Office itself.

I will begin by providing a summary of my experiences. I was groomed at the age of 13 and this then led on to me experiencing sexual and criminal exploitation for over a decade, whereby I was trafficked all-round the country and sold from one gang to another. There were countless times where I was gang-raped, injected with heroin and left black and blue. I was exposed to serious and organised crime and my perpetrators would laugh at how they continued getting away with what they were doing to me and so many other girls. I did not see any of my family for years and my childhood and early adulthood was stolen away from me.

Whilst I acknowledge your statement that you vow to stamp out child grooming gangs, that is a very easy statement to make. Victims of this crime all around the country have heard it all before. Although you’ve announced new measures to tackle the issue, it makes me question how is this achievable when there are so many flaws in the systems already in place, such as The National Referral Mechanism (NRM).

The police did not refer me into the NRM, despite them full well knowing I had been trafficked. I have spoken with several police officers over the years who do not know what the NRM is, let alone know that they are first responders. It took 562 days for me to get my conclusive grounds decision and for most of that time I continued to be exploited. Nearly a year ago, I was sitting in a hotel paid for by the police, after I’d been physically and sexually assaulted. My accommodation was not safe, and I had requested a safe house. After a lot of back and forth, I was eventually told by…the Home Office’s contractor for NRM services, that a safe house was not an option as I was a British national and that there were no other appropriate housing options. I had to return to unsafe accommodation to then be raped and physically assaulted again.

As you have overseen a system that has routinely let vulnerable people down, I would like to know what action has or is going to be taken to improve this?

I spent days and days in police interviews going into as much detail as I possibly could, with the hope that I would get justice and the men who had tortured me would end up behind bars. The reality is so many victims like me must drop out of investigations because we are not safeguarded, resulting in thousands of perpetrators on the streets continuing to exploit and intimidate vulnerable children and adults. If possible, imagine you are at a police station as a victim of this crime and a stream of text messages come through your phone from your perpetrators saying that they know where you are and that if you do not leave, they will kill you and your family. That is just one example of a threat I have received.

This is not going to stop until appropriate measures are put in place to protect us. In the meantime, the trauma victims experience at the hands of their exploiters is exacerbated when we are routinely let down by the so-called systems in place to protect us. I haven’t even covered in this letter, the battles we face accessing support for our mental health and the legal challenges.

I do hope that you read this letter and that it provides you with an opportunity to reflect on an example of someone who has experienced failures from the Home Office.”

I just ask that we do not fail her again and that we recognise the abuses that she suffered. For women who have been sexually exploited in adulthood—by the way, the sexual exploitation of adults is not defined in law; it has no legislation around it, but believe you me, there are some new clauses coming down the line later—I ask that we recognise that the people who groom children go on to groom the same women as they turn into adults, when they do not have the same protections. I completely agree with everything that the Minister has said; I just want it for her as well. That is all that new clause 25 seeks.

[Alex Cunningham]

As the Minister outlined, clause 23 creates a new aggravating factor to apply when a court is sentencing an adult for a specified child sex offence and that offence was facilitated by or involved the grooming of a children—that is, a person under 18. The court is required to treat the grooming as an aggravating factor, but that does not apply where the person who committed the offence was a child under 18 at the time of the offence.

Clause 23 requires the judge to state in open court that the offence had been aggravated by grooming. It could be undertaken by the offender, or a third party, and committed against the victim of the underlying offence, or a third party. Where the grooming is undertaken or facilitated by that third party, the offence will be considered to be aggravated if the offender knew or could be reasonably expected to have known about the grooming when the offence took place. The person groomed need not be the victim of the offence.

I understand from the Government’s explanatory notes that this is to allow for a case, for example, where child A is groomed to recruit child B and an offence is then committed against child B. Clause 23 also does not require that the grooming be undertaken as part of a gang.

We must not lose the context in which this clause operates, which is horrific cases of offenders preying on the most vulnerable. In recent years, there have been a number of high-profile prosecutions of grooming gangs, including in Rotherham, Telford, Newcastle, Rochdale and Oxford. In 2014, the independent inquiry into child sexual exploitation in Rotherham between 1997 and 2013 identified that at least 1,400 children and young people in Rotherham had been sexually abused or exploited. Who knows how many children there are across the country if one area had as many as that?

Just yesterday, the report on child sexual exploitation in Rochdale was published, again illustrating and demonstrating the extent of the crime. I am sure everyone on the Committee will share my sadness in hearing my hon. Friend the Member for Rotherham (Sarah Champion) speaking in the media over the last 24 hours about how things have not got any better. My hon. Friend the Member for Birmingham, Yardley also talked about how none of the recommendations has yet been implemented.

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However, failing that proper systematic review, which is not on offer to me—I imagine that there will be some more of this chatter in the Sentencing Bill, although not from me, unless I get on that Committee as well—

[Alex Cunningham]

It can be arranged.

[Jess Phillips]

A girl can dream! I will speak to a number of changes because, if we are going to make a point about the end of a relationship, we have to also think about some of the other aggravating factors to try and level the playing field regarding sentencing. I have a list of case studies here of murderers and how long they went away for: 15 years, twelve and a half years—brutally murdering women—16 years, 15 years for a man who then went on to murder somebody else on his release. So, the level of time that we give for this particular crime is woeful.

New clause 27 would make honour-based abuse an aggravating factor in murder cases. Banaz Mahmod was killed in a so-called honour killing in 2006 by her father—not somebody she was ending a relationship with—her uncle, and five other men. She was murdered for leaving her abusive husband, for desiring a divorce and for meeting a new boyfriend who those men disapproved of. She was murdered because she was accused of bringing dishonour and shame on her family and the community.

The men that killed Banaz had boasted and joked about the murder, and were supported by other members of the extended family, who made investigations and prosecution as difficult as possible. The police estimated that there were about 50 men involved in her murder and related crimes.

Before her death, Banaz suffered greatly, reporting rape and violence, threats to kill and an attempt on her life. She went to the police five times. She named the suspects who would eventually kill her. The police did not hear; they did not act. In 2008, a commissioner for the then Independent Police Complaints Commission found serious failings in the police handling of the case.

For many years, Banaz’s sister Bekhal, who I consider a friend, has campaigned alongside Southall Black Sisters for a law that recognises the horror of honour-based killing explicitly in sentencing. New clause 27 would do that. It would introduce honour-based abuse as an aggravating factor in murder cases.

Such a new clause will increase confidence in the criminal justice system, sending a strong message that this violence can never be accepted, excused or ignored. As the Women and Equalities Committee stated, an explicit reference “would strengthen the understanding that honour-based abuse is taken seriously by the criminal justice system and only ever as an aggravating factor.” That would have an impact upstream, too, ensuring that agencies do not misunderstand, ignore or turn a blind eye to honour-based abuse due to ignorance or to fear of being seen as culturally insensitive or racist.

Those women must be protected. We must reach them before it is too late. That is particularly important, as honour-based abuse is a high-risk crime that involves multiple perpetrators and colluders and sometimes multiple victims, because of shared codes of honour. Too many victims are at risk for us not to act.

New clause 28 argues that strangulation should be classified as an aggravating factor in sentencing murders. From previous times that I have worked on this issue with the Minister present, I know that she cares deeply about strangulation, and the arguments for the new clause seem unquestionable. First, the nature of the violence: strangulation is a gendered form of killing. That is how men brutally and callously kill women. The 10-year femicide census showed that strangulation was the second most common method for men who kill women, and Clare Wade’s review demonstrated its prevalence.

It is hard to find words to reflect the horror of killing someone by strangulation—the vulnerability of the victim, the intimacy of being eye to eye, the length of time that it would take to kill someone in that way, and the fear that the victim must experience in their final moments. Many bereaved families I work with speak to me about how that haunts them. That must be reflected in the sentencing framework.

Furthermore, new clause 28 follows new laws on non-fatal strangulation—the Minister may remember them her time on the Back Benches—which were introduced under the Domestic Abuse Act 2021. How we understand the role of strangulation in domestic abuse is changing. It is now understood as a form of coercive control and an accurate red-flag predicter of homicide. If someone is strangled, they are much more likely to go on to be murdered. We must change how it is considered in sentencing.

A judge can recognise strangulation as serious or sadistic under schedule 21—I say again that that needs review—but strangulation is not being recognised. It is simply not being recognised for the horror that it is. In 59% of the strangulation cases looked at by Clare Wade’s review, the method of killing was not seen as an aggravating factor. Significantly, in 73% of the remaining cases where the offence was said to be aggravated by the nature of the killing, the strangulation was accompanied by either an assault or an attack with a weapon. That suggests that the seriousness of the violence denoted by strangulation in and of itself is not being acknowledged.

In law, we place a lot of emphasis on weapons, but as we see in many gendered murders, many male perpetrators do not need a weapon. Such a perpetrator carries his weapon everywhere he goes, and that is his strength, his arms, his physical power. He does not need a weapon, so his culpability should not be decreased because he did not use one; he did use one. That is not a point in law that has gone unrecognised in other crimes; our bodily differences are recognised. For example, for the crime of rape, the Sexual Offences Act 2003 explicitly states that it can be done only with a penis. That recognises that a man’s body can be a weapon. I am not asking for anything beyond what exists in current law.

A three-year study of 204 adult cases of non-fatal strangulation showed that one in six had been strangled to the point where the victim lost consciousness. Symptoms of such violence include strokes, depression, memory loss, seizures, motor and speech disorders, and paralysis. Studies have shown that victims of non-fatal strangulation are seven times more likely to be murdered by their partner. The true nature of strangulation must be understood, as must its relationship with misogyny. Strangulation is about silencing. It is about exerting power, fear and control. As the member of a focus group who attended for Clare Wade’s review explained:

“It is almost always about the perpetrators wanting the last word but if you work with the perpetrators, you hear this over and over again—like I wanted her to shut up I wanted her to be quiet but I wanted to win you have to have the last word. That is what the whole kind of attacking the throat and putting the hands over the mouth—it is all about silencing.”

I very much hope that the understanding of an aggravation in the use of strangulation in a killing can be considered.

On a slightly different note, new clause 29 would ensure that infidelity can never be used as a defence to murder. The Minister said earlier when commenting on perpetrators attending court that common law practice sometimes needs writing into primary legislation. I very much agree with her, which is why I am seeking for this amendment to be made. While it is still written in our legislation that someone can use infidelity as a defence for murder, it is not used in common law.

Currently, infidelity cannot be used as a defence or mitigation. However, the latter is common-law principle rather than in statute. Section 55(6)(c) of the Coroners and Justice Act 2009 provides that sexual infidelity cannot be relied upon in a defence of a loss of control. That was passed following the wrath about “crime of passion” defences going through the criminal justice system in response to domestic murders, and it revoked previous laws on provocation. The legislative change was brought about due to the incredible work of domestic abuse campaigners.

However, the legislation did not concurrently prevent sexual infidelity being a mitigating factor in sentencing in schedule 21 to the Sentencing Act 2020—I feel like I am really attacking schedule 21 today, but I am not keen on it if I am honest—thereby creating an inconsistency in the law. The law on provocation changed, but the sentencing principle that surrounded it did not. Common-law principles on the whole prevent this inconsistency from playing out. I will spend the entirety of the Committee stage saying, “In real life, that does not really happen.” Well, in real life this does not happen. It is not something that I am mortally frightened of. It no longer happens that someone is allowed to say that because their wife cheated on them it is fine that they killed her. A million other defences are made, but not that one anymore.

The defence still exists in law; however, it is not used, on the basis that precedent allows for factual scenarios to be disregarded in mitigation where they run contrary to the policy behind existing legislation, even where there may not be a statutory bar. Despite that, it is important to regularise common-law principles in statute for the avoidance of confusion and to fill lacunas in the law. New clause 29 ensures that no judge could ever stray and use it as a mitigating factor.

New clauses 27, 28 and 29 speak to the larger issue of how we see and respond to the killing of women. How we sentence crimes reflects how seriously we take them. At the heart of these debates is how seriously we take the violent deaths of women and the stealing of their lives. I am afraid to say that at the moment, and we do not take it as seriously as we take other crimes. Several years ago, two mothers walked into my office, Carole Gould and Julie Devey. Their relentless campaigning, at personal cost, has hugely elevated the issue of how we should hold the people who kill women to account. Their daughters were both murdered in brutal, violent attacks by their ex-partners. Ellie was 17 and Poppy was 24. They had their futures stolen from them by two men who had decided, as Julie once described, that

“if they couldn’t have them no one else could either”.

Their mothers began campaigning to challenge the discrepancy in the sentences given in cases where the victim, often a woman, is killed in the home and in other homicides where the victim is killed in public spaces. The distinction commonly turns on the fact that if a perpetrator brought a weapon to the scene of a crime, the starting point for sentencing is 25 years. If, however, the weapon is not brought but found, as with a kitchen knife—my kitchen knife comes back into play from earlier—the starting point is only 15 years. That is 10 years’ difference.

The example that is repeatedly given to demonstrate that inequality is that if someone brings a knife with them and kills their victim with a single stab, they will receive a mandatory minimum sentence of 25 years; but if the victim is suffocated, strangled, beaten, or stabbed hundreds of times to the point of mutilation with a knife found at the scene, the starting point is 15 years. With the discretion of the judge and the mitigating and aggravating factors, Clare Wade’s research suggested that on average that resulted in a six-and-a-half-year difference between the two sorts of crimes. That cannot be right.

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The Clare Wade review highlights a litany of failures and an array of recommendations. So far, the Government have picked and chosen from them. All the voices in this debate are united in their criticism and their end goal. We all believe that laws that govern our sentencing currently are not working. They result in gross miscarriages of justice that diminish the lives of women killed and put the future lives of other women at risk. They do not reflect or respond to harms done by gendered violence. Frankly, the nation’s women deserve much more.

[Alex Cunningham]

Follow that!

Clause 24 would insert a new aggravating factor into paragraph 9 of schedule 21 to the sentencing code, to be considered when determining the minimum term for a life sentence imposed for murder. It would apply where the offence was connected with the end of the offender’s intimate personal relationship with the victim; the victim intending to bring about the end of that intimate personal relationship; or a belief by the offender that the intimate personal relationship had ended or that the victim intended to bring about the end of the personal relationship. The new statutory aggravating factor would apply to offences committed on or after the date the relevant provision comes into force.

We do not oppose the clause, but I hope that the Minister will clearly define what is meant by “intimate personal relationship”. We will discuss clause 30 later, but it refers to

“controlling or coercive behaviour in an intimate or family relationship”.

Does clause 24, then, refer only to that of a partner or ex-partner?

We know the context surrounding this measure. Around a quarter of all homicides in England and Wales are classed as domestic—that is, they are committed by the partner, ex-partner or relative of the victim. They represent an average of nearly 160 homicides per year, with almost 90 being committed by a partner or ex-partner, over the last 10 years. I join others in commending the excellent work of Clare Wade KC, who utilised her expertise in this field to conduct the independent domestic homicide sentencing review, published on 17 March 2023.

As my hon. Friend the Member for Birmingham, Yardley said, the review coincided with an ongoing campaign by the families of two women who were murdered by their male partners: Ellie Gould, who was 17 at the time of her murder by Thomas Griffiths, and Poppy Devey Waterhouse, who was 24 when she was murdered by Joe Atkinson. In her report, Clare makes the important argument that not only are women wronged by a breach of trust, which is an integral part of domestic abuse, but the harms to them often extend to further harm to secondary victims in the form of families, many of whom are the children—we have heard that before—and friends of the victim. There is also the harm to society in general, which, to date, may not have been sufficiently considered.

Clare made it clear to Committee members in her oral evidence session that the proposals in the Bill fall well short of what she set out in her report. In her evidence, Clare said, of clause 24:

“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.”

Does the Minister understand why the clause looks a little odd? Perhaps she needs to do some work to make it fit for purpose and able to capture more of Clare’s recommendations.

I recognise that my hon. Friend the Member for Birmingham, Yardley has tabled new clauses 27, 28 and 29 in respect of these matters, which we will come on to. I am pleased that the Government are accepting the recommendation to make a murder that takes place at the end of a relationship a statutory aggravating factor in sentencing for murder. In 48% of murder cases looked at in the Wade report, the sentencing remarks disclosed that there were reports of either jealousy or resentment on the part of the perpetrator at the breakdown of the relationship. In the majority of cases, that appeared to be the catalyst for the murder.

The perpetrator was male in all but one of those 43 cases. A history of controlling or coercive behaviour was identified within the case sample. Clare also said in her oral evidence that

“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.”––[Official Report, Criminal Justice Public Bill Committee, 14 December 2023; c. 114-115, Q64.]

In the Government’s response to the Wade report, they proposed four legislative measures to give domestic homicide specialist consideration in the sentencing framework for murder for the first time. Clause 24 is the final one of these measures, with three already laid before Parliament as draft statutory instruments. I will not rehearse again the issues around grooming, which have been covered previously, but does the Minister recognise that she may have lost an opportunity to bring forward more of the recommendations from Clare’s review?

Although we certainly do not oppose the clause, we must consider the practical implications at this stage. In the Government’s impact assessment, they state that the impacts of the clause

“fall beyond the 10-year period”

of measurement. However, in the longer term, the impact assessment states that the measure

“is estimated to require a further 42 additional prison places in steady state, reached around 2065, at a 40-year net present cost”

of £19.2 million. To reaffirm what I said in reference to clause 23, without the Government getting on with tackling the crisis in our prisons, any measures that impact on capacity are a cause for a degree of concern.

I turn briefly to the new clauses that my hon. Friend the Member for Birmingham, Yardley spoke about so comprehensively. Again, I find it difficult to add value to what she had to say. New clauses 27 and 28 would introduce aggravating factors for honour-based abuse and strangulation respectively. New clause 29 would ensure that sexual infidelity can never be used as a defence for murder. I cannot add much to what my hon. Friend said in her well-illustrated speech, and I take this opportunity to thank and pay tribute to her. She has many years of working in this space. From what I have seen, heard and read, I know my hon. Friend has been not just a leading voice fighting for change, but a driving force in supporting both organisations and individuals.

We on the Opposition side recognise the importance of tightening up sentencing in this area. As outlined in my speech on clause 23, that will form a vital part of the wholesale review that Labour has committed to, so we can consider all the measures necessary to ensure that the criminal justice system works for victims. As always, I look forward to the Minister’s response.

[Laura Farris]

I align myself with the shadow Minister’s comments about the hon. Member for Birmingham, Yardley. I would like to pick up where the shadow Minister left off, in talking about sentencing more broadly. That will bring me on, quite naturally, to the new clause concerning strangulation.

I agree with the reservation about the gendered aspect of strangulation throughout domestic abuse and particularly in domestic homicide. The hon. Member for Birmingham, Yardley talked about the problem with the law at the moment, where if someone takes a weapon to the scene of the crime, they get longer than if they use a weapon that, for example, comes out of the kitchen drawer. It is well known that this is the Ben Kinsella amendment, which Jack Straw introduced in 2007 in response to a campaign fought very passionately by Ben’s sister, Brooke, and his family.[Official Report, 1 March 2024, Vol. 746, c. 7MC.] (Correction) Ben was a young man killed in gang violence, and his sister campaigned very passionately for a 25-year starting point for anybody who takes a weapon to the scene of the crime. Clare Wade dealt with that issue quite extensively in her report. I am not expressing a view of the Government here; I am just reflecting what Clare Wade said. She was critical of the starting point. In fact, she was quite critical of starting points in general.

The Government are conducting a murder sentencing consultation at the moment. It is on the Government website, and it remains open until March this year. It addresses all these points, including where sentences do not look like they are quite right—where some are too low or too high; I am not saying that they are necessarily too high, but it is about whether starting points are right. If the hon. Member for Birmingham, Yardley will forgive me, I will say no to the new cause about strangulation, but I encourage her—particularly given her background and expertise—and all Members to contribute to that consultation, because we are looking at this blend of issues at the moment.

Another important concern that Clare Wade recognised in her report was about ranking methods of murder. A well-known example is that a 25-year starting point applies to any convicted offender who has taken a weapon to the scene of the crime, but a victim of domestic abuse—what we might in the old language call “the battered wife”—is almost always going to use a weapon. That is the only way a woman is likely to kill a man, and a woman has very often taken one to the scene of the crime. We did not actually intend to capture that category of offender, but the law currently does.

We think it is important that we are not, at this point, setting one category of offence above another, and that we conduct this consultation and consider this area of the law carefully. As the hon. Member for Birmingham, Yardley effectively acknowledged, and as I think Clare Wade also did, some issues need to be looked at in the round. I hope the hon. Lady will understand why, on that basis, I will say no to her new clause, with all due deference and respect for how she made the case so powerfully put in Clare Wade’s report. All Governments should consider it carefully. That is my first point.

The second point was about honour-based abuse, which again the hon. Member for Birmingham, Yardley articulated well. We are clear that we will not allow political or cultural sensitivities to get in the way of tackling it. There is no specific offence for such abuse; the term is used to encompass various offences, including not only the usual range of domestic abuse, but some of the psychological pressure that the hon. Lady described. Forced marriage can fall within that, with elements of family shame. She talked about a case with a large number of participants who were part of the abusive ring.

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The 2009 Act repealed the defence of provocation, and replaced it with the partial defence of loss of control. Within that it removed an act of revenge from being any argument that could be advanced. Section 55(6) removed the possibility of advancing infidelity as a defence in a murder case. On that basis, I was satisfied that it was on the statute book. I also checked with officials whether there was any recent example of such a defence ever being advanced or being successful as such, but we could not find one. We are therefore satisfied that the law as it stands provides sufficient protection.

[Alex Cunningham]

I appreciate being able to make an intervention. During my contribution, I talked about Clare Wade and the clause being a little odd because it is a stand-alone one. I know that the Minister has addressed the new clauses of my hon. Friend the Member for Birmingham, Yardley, but will she comment on that? Is there an opportunity to adopt more of the recommendations of the Clare Wade report?

[Laura Farris]

I thank the shadow Minister for his intervention. We are thinking hard on that point.

I want to check that I have not missed anything from section 55, where anything

“done or said amounted to sexual infidelity is to be disregarded.”

That is still good law. I suggest that the issue of some defendants claiming as a defence that they had killed a victim because she had been unfaithful to them has now been resolved and it is excluded as a qualifying trigger for the loss of control defence.

Clare Wade recommended that sexual infidelity should also be prohibited from being considered as a mitigating factor when it came to sentencing. We published our response to her review in July last year, setting out why we will not take that forward. The domestic abuse sentencing guideline already expressly states that provocation is no mitigation to an offence in a domestic context, except in rare circumstances. No evidence was provided in the review that sexual infidelity was ever being taken into account inappropriately as mitigation. I am therefore satisfied—it is the only point on which I really disagree with the hon. Member for Birmingham, Yardley—that the law already has sufficient protection in place. I urge the hon. Member not to move the new clauses.

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.

--- Later in debate ---

[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.

--- Later in debate ---

[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?

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

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[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 (Fourteenth sitting)

Alex Cunningham Excerpts

Committee stage
Thursday 25th January 2024 Public Bill Committees

[Alex Cunningham (Stockton North) (Lab)]

Would the Minister know which way to use the hammer?

[Chris Philp]

I can confirm to the hon. Member that I will definitely use the hammer in the right way. In the Prime Minister’s defence, it was suggested that he had been told to use the hammer in that way, but I do not know. [Interruption.] My hon. Friend the Member for Wyre Forest has confirmed that the Prime Minister was told to use the hammer in that way. With a cast-iron hammer, we will make sure that the requirement sticks, by enshrining the change through the regulation changes we make in the spring.

New clause 9 would introduce a requirement on police officers to hand over their personal mobile phones where there is suspicion that they have behaved in a way that could amount to gross misconduct. This is a little more problematic, because it says that someone who is not accused of a criminal offence, but is simply suspected of having committed misconduct, has to hand over their personal phone. That is quite intrusive, and there are possible issues with regard to article 8 of the European convention on human rights. I noticed that the shadow Minister moved and voted for an amendment earlier despite my saying that it would infringe the ECHR. Some of my colleagues would no doubt find common cause with him on that.

--- Later in debate ---

[Vicky Ford]

I thank the hon. Member for Birmingham, Yardley, for her passion on this subject, and for her very moving speech. She and I sat together on the Women and Equalities Committee, which took incredibly harrowing evidence from women in Northern Ireland about their circumstances. I have a very long track record—15 years —of voting on the issue of abortion, because it comes up for a vote nearly every month in the European Parliament. I always vote for the woman’s right to choose. However, I completely understand that not every parliamentarian holds the same view. It is a very sensitive and incredibly important issue.

It would not be right for the small handful of us here —there are not even the full 17 Committee members here—to have a vote that would change the law when the other 633 have not had the chance to give their view. They would consider that a constitutional outrage. I would not want those who have a view different from mine to say that we had done this incorrectly, under the cover of Committee, and not out in the open. This issue needs to be debated and discussed. A decision is needed on whether the change should be in this Bill, or whether we need a whole new Bill on abortion—we need to think about whether any of our abortion laws are fit for purpose in today’s age. However, we should not vote on this today and try to bind the other 633 Members of Parliament to what we decide in this room. I respect the manner in which this amendment was tabled, but gently request that we do not vote on it today, and ensure that it is debated properly by all our colleagues from across the House.

[Alex Cunningham]

It is a pleasure to serve under your chairmanship, Sir Robert. My hon. Friend the Member for Birmingham, Yardley, made a detailed speech on new clauses 1, in particular, and 2, which were tabled by my right hon. Friend the Member for Kingston upon Hull North and my hon. Friend the Member for Walthamstow (Stella Creasy) respectively. We all recognise how sensitive and controversial the issue of abortion is. It is important that we get the law exactly right and ensure that any changes do not have unintended consequences. I am grateful to my colleagues for ensuring that the debate on the law around abortion remains very much a focus for us in this place as we strive to make the right changes. I commend the work of all colleagues across the House on this issue.

New clause 1 would disapply criminal law on accessing or providing abortion care from women acting in relation to their own pregnancy at any gestation, ensuring that no woman would be liable for a prison sentence as a result of seeking to end her own pregnancy. New clause 2 seeks to repeal sections 58 to 60 of the Offences against the Person Act 1861 and

“provide that no offence under these regulations or any other legislation is committed by a person complying with the requirements of subsection 1 of the Abortion Act 1967”.

The Abortion Act 1967 renders lawful activities that would otherwise constitute a crime under the Offences against the Person Act 1861. It provides criteria under which abortions or terminations can legally take place. Labour believes that abortion is an essential part of healthcare that is highly regulated. Let me make it perfectly clear today that we do not believe that women should be jailed for getting an abortion when they are doubtless at their most vulnerable. For that reason, a Labour Government will provide parliamentary time for free votes on modernising abortion law to ensure that Members of Parliament can deal with this issue once and for all.

Many cases and reasons over the years have led us to this point, but I will highlight again the custodial sentence in the case mentioned by my hon. Friend the Member for Birmingham, Yardley. It was deeply sad, and something that we do not want repeated. This mother was jailed for illegally taking abortion tablets to end her pregnancy during lockdown. The Court of Appeal reduced her sentence, and she has since been released. The original judge decided that she should serve half her 28-month term in custody and the remainder on licence, but the Court of Appeal reduced the term to 14 months suspended. Dame Victoria Sharp KC, who heard the appeal, rightly noted that—we have heard this already this afternoon, but I make no apologies for repeating it—this was a case that called for “compassion, not punishment”. Carla Foster pleaded guilty to a charge under section 58 of the Offences against the Person Act 1861—administering drugs or using instruments to procure abortion—a plea accepted by the prosecution. As we have heard, she will carry that record throughout her life. Dame Victoria told the court that “no useful purpose” was served by detaining Ms Foster in custody and added that her case had “exceptionally strong mitigation.”

The Government have put forward an amendment to the 1861 Act in relation to the administering of harmful substances. We have just debated that and can all welcome that amendment, but it gives rise to the question: why have the Government not proposed any modernisation of the abortion offences, including the sentencing range? We are talking about a very similar provision of the same Act. Can the Minister say why the Government are not taking this opportunity, while the matter is under the spotlight and the subject of important debate, to remove custodial sentences?

We know that there are strongly held views on abortion—I have said that already—but it is rightly a matter of conscience for Members. The threat of prosecution is a real fear for women, and very sadly it is a fear that deters doctors from wanting to enter this fundamental area of women’s healthcare. It may help the Committee to know that health professionals, in the shape of the British Medical Association, support action, too. The BMA’s brief said that abortion should be regulated in the same way as other clinical procedures that are subject to an extensive range of professional standards, regulations and criminal and civil laws, but it stresses that it does not support criminal sanctions for women who procure and administer their own abortion, or for health professionals administering abortions in the context of their clinical practice.

I await with interest the Minister’s response to Committee members’ comments and those of the BMA. Specifically, I would like to know what action the Government plan to take to stop women being jailed for this offence. I am well aware that Members from across the House have been working together in an attempt to get this right and may well table a different amendment on Report. What discussions has the Minister had with Members? Is she open to further discussions? Is there any prospect of the Government bringing forward their own clause to right this wrong? She knows, as I do, that we must take action. There is a clear consensus on this.

[Laura Farris]

I am grateful to everybody who has spoken on this matter. Both new clause 1 and new clause 2 seek to decriminalise abortion. The Government maintain a neutral stance on these issues, but there are strongly held views across the House on this highly sensitive matter. They engage considerations of women’s rights and health, the rights of the unborn child, the viability of a foetus and the involvement of the criminal justice system. None of this is straightforward. It is an issue that, quite properly, Members will decide on according to their consciences, and I agree that it should be determined on the Floor of the House.

Let me begin by emphasising that the Government are committed to ensuring that all women in England and Wales have access to safe, regulated abortion services on the NHS under our laws. That includes telemedical abortions—sorry, I should probably refer to taking abortion pills at home when eligible, because “telemedical” is a confusing word.

As hon. Members know, in England and Wales the criminal offences relating to abortion must be read in conjunction with the provisions of the Abortion Act 1967, which provides exemptions to the criminal offences. The new clauses tabled by the right hon. Member for Kingston upon Hull North and the hon. Member for Walthamstow seek, in different ways, to decriminalise abortion for women acting in relation to their own pregnancies. If the will of the House is that the criminal law on abortion should change, whether by exempting pregnant women from the offences or otherwise, the Government would not stand in the way of such change, but we must of course be concerned with the fitness for purpose of any legislation proposed. With that in mind, I turn to the detail of the amendments, but it may be helpful if I first set out the relevant offences.

Under section 58 of the Offences against the Person Act, it is an offence for a pregnant woman, with the intent to procure her own miscarriage unlawfully, to take drugs or use instruments, and for another person, with the intent to procure the miscarriage of a woman unlawfully, to administer drugs or use instruments. Section 59 makes it an offence to supply or procure drugs, poison or an instrument intended to be used to procure a miscarriage.

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.

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[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.

--- Later in debate ---

[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 (Sixteenth sitting)

Alex Cunningham Excerpts

Committee stage
Tuesday 30th January 2024 Public Bill Committees

[The Minister for Crime, Policing and Fire (Chris Philp)]

It is a pleasure to serve under your chairmanship once again, Sir Graham, at the start of what is the final session of the 16, including the evidence sessions, that we have had on this Bill. I am sure that if there is popular demand, we can agree to have some more—[Laughter.] No, I did not think that that would be terribly popular.

We were in the middle of discussing new clause 19, moved by the shadow Minister, the hon. Member for Stockton North (Alex Cunningham), on a new criminal offence of cuckooing. As we ran out of time, I was saying that the way in which the new clause is drafted does not require there to have been duress, coercion or consent. The shadow Minister intervened to draw attention to subsection (1)(b)(iii), which requires duress or coercion, but the other limbs of the test do not require duress or coercion and the clause is worded as an “or”. That is to say, if any one of limbs one to four are engaged, the offence is made out. For example, if limb one alone is engaged—if there is drug dealing at the premises—the offence is made out even if there is no coercion, because the test is structured as an “or” rather than an “and”, and any one of the four limbs may apply.

The way the new clause has been drafted means that, even where there is no coercion or duress and even where consent has been freely given by the person living in the residential building, the offence would none the less have been committed. That is not exactly the definition of cuckooing that we would ordinarily recognise, which would involve duress and/or coercion of a typically vulnerable person. For that drafting reason, we could not support the new clause.

There are a number of elements of existing criminal law that provide protection here or that are relevant. For example, sections 44 to 46 of the Serious Crime Act 2007 create various so-called inchoate offences, such as encouraging or assisting the commission of offences, which would likely be engaged here and the maximum penalty for which is the same as the primary offence. Even if the person doing the cuckooing is not committing the offence but is organising or encouraging others, including the vulnerable person, to do so, an offence is committed.

If a criminal offence such as drug dealing is being committed, that is illegal. Under the Misuse of Drugs Act 1971, the production or supply of controlled drugs is an offence, so if somebody were occupying another person’s flat or house for the purpose of drug dealing, they would be committing an offence under that Act. Similarly, if they were trying to compel the victim—that is, the vulnerable person—to do something they did not want to do, it is quite likely that sections 1 or 2 of the Modern Slavery Act 2015 would be engaged as well.

Another offence that would likely or could be engaged is that of aggravated trespass, under section 68 of the Criminal Justice and Public Order Act 1994. That section rather confusingly refers to “land”, but the definition of land in that context includes buildings. The offence there is where the person trespassing on land, which definitionally includes buildings, has the intention of “intimidating”, “obstructing” or “disrupting” the lawful activity of others, which will include the right to quiet enjoyment of their premises. Critically, the word “intimidating” is included in that aggravated trespass offence. Clearly, if somebody were coercively cuckooing a vulnerable person, it would be very likely—indeed, near certain—that they would be intimidating them. Not only would we be able to prosecute them for the primary offence, such as drug dealing, but possibly for aggravated trespass under section 68.

[Alex Cunningham (Stockton North) (Lab)]

The Minister has used three expressions in the last few minutes: “quite likely”, referring to the Modern Slavery Act, “likely”, and then—sorry, I have lost the third one. My apologies, Sir Graham. I trained as a journalist, but sometimes I cannot read my shorthand. The Minister has three times used the word “likely”, but “likely” is not good enough. Possibly, maybe, perhaps—all these words mean the same thing. They do not mean certainty, and I hope that he will recognise that what we are trying to do is to get a specific clause to deal with cuckooing. I will speak further on that when I respond to the Minister’s speech.

--- Later in debate ---

[Chris Philp]

The antisocial behaviour plan, published in the spring of last year, committed to engaging with stakeholders on that question. That engagement has happened and continues to happen. On the point about penalties, if someone is occupying someone else’s house and is dealing, for example, class A drugs, the maximum penalty, wherever that happens, is life. Under the Modern Slavery Act, the maximum sentence under sections 1 and 2 for making another person a victim of modern slavery is life imprisonment. The penalties available are severe. In the two examples that I just gave, the maximum sentence is life imprisonment.

The maximum penalty for participating in the activities of an organised crime group under section 45 of the Serious Crime Act 2015 is five years. On the inchoate offences under sections 45 or 46—that is, where someone is incited or encouraged to commit an offence—the maximum penalty is the same as that for the primary offence. So, it is not true that the maximum sentences available in this sphere are in any way light or incon-sequential.

This matter obviously concerns everybody. It is as much a matter of enforcement as anything else because, as I have explained, we have a number of different laws on the statute books that cover such behaviour with significant penalties attached. The question is how we make sure that they are properly enforced. As drafted, the new clause probably does not have quite the intended effect, because it is widely drafted. Even if it were drafted to include a requirement for duress or coercion or that consent had been withheld, we could legitimately debate whether it does or does not fill a lacuna.

In addition to the criminal sanctions that I have just enumerated, there are a very large number of civil orders available to try to prevent a property being misused. I will not go through the detail of them all because that will take too long, but I will list what they are. They include closure notices, community protection notices, public space protection orders, civil injunctions under part 1 of the Anti-social Behaviour, Crime and Policing Act 2014, criminal behaviour orders, gang injunctions, a section 8 notice under the Housing Act, and slavery and trafficking risk orders. Those are civil measures, but they are in addition to the various criminal measures that I enumerated.

In conclusion, the Government accept the spirit of the concern that has been raised. Cuckooing is a concern; it happens, and it needs to be stopped. It is worth saying that we have closed down a very large number of county lines over the last four years—I think about 3,000. Enforcement action is happening. There is scope to go further, but numerous existing criminal offences give the police the powers they need. We need, collectively, to make sure that the police always exercise those powers where cuckooing occurs.

[Alex Cunningham]

I have listened to the Minister in some detail. Nobody will ever accuse him of not being prepared with stats and with the information at his fingertips.

As my hon. Friend the Member for Birmingham, Yardley said, for a vulnerable person who is a victim of this sort of offence, civil orders occupy a no-go place. That person would not have the understanding or the wherewithal to pursue such an order and, if the authorities cannot intervene because the law is not sufficient, they cannot do so on that person’s behalf either. I do not accept that civil orders in any shape or form help to address this particular problem.

[Chris Philp]

I would point primarily to the criminal offences I enumerated, but, on the question of civil orders, other agencies such as local authorities, or in some cases the police, could of course apply for the civil order. Obviously, we would not expect the vulnerable person to apply for the civil order themselves, but there are agencies, which include local authorities, that could certainly do so on their behalf.

[Alex Cunningham]

I am grateful to the Minister for providing clarification on that. As he heard me say earlier, we are looking at the new clause very much as creating a specific offence of cuckooing. I recognise the lesson in drafting that he has given me this afternoon.

It had been my intention to push the new clause to a vote but, after the lesson in drafting from the Minister, I no longer intend to do so. The Minister is aware, however, that there is considerable cross-party support for this aim. The Minister says that he has a problem with the drafting of the clause, but he does not appear to have a problem with its purpose, so on that basis I ask that he work with others—some from his own side, although we are happy to pitch in as well—to bring forward what we believe is needed: a specific clause on cuckooing that will once and for all protect the victims, rather than giving free rein to those who choose to exploit them. On that basis, in the hope that we will see something come back later, I beg to ask leave to withdraw the motion.

Motion, by leave, withdrawn.

New Clause 23

Sexual exploitation of an adult

“(1) The Sexual Offences Act 2003 is amended as follows.

(2) Section 52 is amended as follows—

(a) in the title for ‘Causing or inciting prostitution’ substitute ‘Sexual exploitation’, and

(b) in paragraph (1)(a) for ‘causes or incites another person to become a prostitute’ substitute ‘sexually exploits another person’.

(3) Section 53 is amended as follows—

(a) in the title for ‘prostitution’ substitute ‘sexual exploitation’, and

(b) in paragraph (1)(a) for ‘prostitution’ substitute ‘sexual exploitation’.

(4) Section 54 is amended as follows—

(a) in subsection (2) for ‘sections 51A, 52, 53 and 53A’ substitute ‘section 53A’, and

(b) at end insert—

‘(4) In sections 52 and 53 “sexual exploitation” means conduct by which a person manipulates, deceives, coerces or controls another person to undertake sexual activity.’.” —(Jess Phillips.)

This new clause is an amendment to the Sexual Offences Act 2003, specifically in Sections 52 and 53, “replacing prostitution for gain” with “sexual exploitation of an adult”.

Brought up, and read the First time.

[Jess Phillips]

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

--- Later in debate ---

[Carolyn Harris (Swansea East) (Lab)]

I rise to speak to new clause 44, which enacts a recommendation of the Home Affairs Committee, which I am a member of, and is supported by its Chair, my right hon. Friend the Member for Kingston upon Hull North (Dame Diana Johnson). The clause is very simple. It outlaws pimping, and we need it to combat sex trafficking.

Members might be surprised to learn that some forms of pimping are still legal in this country. Take pimping websites, which the Home Affairs Committee looked at during our inquiry on human trafficking. These websites are dedicated solely or partly to advertising people for prostitution. The operators of the sites knowingly pimp people for prostitution, and the biggest sites make millions of pounds from it. Despite it being illegal to place a prostitution advert in a phone box, our laws are failing to keep up with technological change; that same advert can be hosted on a website with complete impunity. As a result, pimping websites make it as easy to order a woman to sexually exploit as it is to order a takeaway. This has been a total boon for sex traffickers.

The Home Affairs Committee concluded:

“Websites advertising prostitution significantly facilitate trafficking for sexual exploitation.”

The websites make it quick and easy for traffickers to advertise their victims and connect with their customers nationwide. As a result, pimping websites are now a core component of the standard business model of sex trafficking in the UK. Shockingly, one of these websites admitted to the Home Affairs Committee that it allows single individuals to advertise multiple women for prostitution at the same time on its site and allows the same contact phone number to be used across multiple different adverts. These are both obvious red flags for sex trafficking.

We also know that one trafficker convicted of sexually exploiting women in the UK spent an astonishing £25,000 advertising his gang’s victims on the same pimping website. The group exploited at least 11 young Romanian women, trafficking them from across the north-west of England and Northern Ireland. Chillingly, law enforcement revealed that the website operators responded to the fact that one man was spending thousands of pounds advertising women for prostitution not by calling the police but by allocating him his own account manager to make sure he could spend more. It is an absolute scandal that these pimping websites have been allowed to operate in plain sight. To combat trafficking in this country, we must update our laws so that it is illegal to pimp online as well as offline.

New clause 44 would enact the recommendation of the cross-party Home Affairs Committee to make it a criminal offence to facilitate or profit from the prostitution of another person online or offline. I hope we can come together across the House to make that recommendation law.

[Alex Cunningham]

I pay tribute to the work of my hon. Friends the Members for Swansea East and for Birmingham, Yardley, and of others who do so much to advance women’s rights through their work in and out of this House. That is, of course, across parties.

My hon. Friend the Member for Birmingham, Yardley mentioned her work with the STAGE project. One of the members of that group is A Way Out, a fantastic charity based in Stockton with which I am very familiar. It does hugely important work supporting vulnerable and excluded women, families and young people to live lives free from harm, abuse and exploitation. I know that many of us on this Committee have civil society groups and charities in or near our constituencies that dedicate themselves to tackling abuse and exploitation in our communities, and I am sure that we would all like to put our thanks to them on the record this afternoon.

As my hon. Friend has just outlined, new clause 23 replaces the term “controlling prostitution for gain” in the Sexual Offences Act 2003 with

“sexual exploitation of an adult”.

That would follow more closely the terminology introduced into English law in 2015 in relation to the sexual exploitation of children, which my hon. Friend has outlined in detail. The new clause may help to address some of the cliff-edge differences in treatment that those subject to such exploitation experience when they turn 18.

I am sure that the Minister recognises the need for continuity of support for those subject to or at risk of exploitation, and agrees that simply turning 18 should not provide a reason for changing perceptions of and treatment for victims of sexual exploitation. Is the Minister aware of any discussions in the Department, following the changing of the terminology around sexual exploitation of children, about the way that the law refers to such exploitation when perpetrated against adults? If so, could she share them with the Committee?

New clause 23 also aims to provide a definition of adult sexual exploitation through the Sexual Offences Act 2003. The STAGE project’s access-to-justice work has identified that women who have experienced sexual exploitation can face barriers to accessing justice at all points in the criminal justice system. One of the contributing factors to the barriers that many victims face when accessing justice is that some may not even initially recognise that they have experienced sexual exploitation —partly on account of the fact that there is no statutory definition of adult sexual exploitation.

I look forward to hearing the Minister’s thoughts about the potential benefits of introducing a statutory definition in relation to this type of offending. That may be of help not only to victims, in understanding their experiences as adult sexual exploitation, but to criminal justice professionals, such as the police, in identifying cases of this horrific offending.

I turn briefly to new clauses 26 and 30, which would respectively repeal soliciting and loitering as an offence and provide for a process allowing the Secretary of State to disregard convictions and cautions related to soliciting. As my hon. Friend the Member for Birmingham, Yardley has outlined, this offence has been dispro-portionately used to criminalise vulnerable and exploited women, after which the offence stays on their criminal record for decades—I think I heard my hon. Friend say “up to the age of 100”, but I do not know how many people get to 100.

The retention of those records can be distressing and degrading, and can interfere with the ability of the women to move on with their lives. It can prevent them from getting access to certain jobs and may make accessing certain types of support more difficult. Even when the women are trying to move forward with their lives, they are confronted by yet more challenges because they have been criminalised, while many of those actually perpetrating such exploitation have not.

The Centre for Women’s Justice has been challenging this regime in the courts in recent years through its HOPE—history of prostitution expunged—campaign, with some notable successes. One of the women involved in the campaign, whose name has been changed to Martha to maintain anonymity, said:

“I have a sheer panic when I see a job and then see ‘DBS required’. I feel the reaction I experience is a form of trauma—anxiety, anger and rage. I also feel disgust that people are so judgmental when to me the perpetrator, who experiences none of this, is the one who should feel shame”.

Clearly, more needs to be done to ensure that criminal records do not compound trauma for these victims and prevent these women from moving forward with their lives.

The Government have made some reforms to criminal records recently, most notably in the Police Crime Sentencing and Courts Act 2022, which was being debated in Parliament around the same time as one of the Centre for Women’s Justice cases was being heard. The Government were not minded to expand the provision of criminal record reform further at that time. Can the Minister tell me whether anything has changed in the interim? Has the Department considered any other mechanisms through which the impact that criminal record disclosure can have on those women may be reduced?

Finally, on new clause 44, which creates a new offence of facilitating or profiting from the prostitution of another person, will the Minister share her views on measures to combat such exploitation? Overall, I hope we can have an update on the work of the Government to ensure that exploitation offences criminalise the exploiters rather than those being exploited.

--- Later in debate ---

[Jess Phillips]

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

The new clause seeks to align our definition of “human trafficking” with the UN definition, particularly removing the requirement for exploitation to have involved travel. We have heard all about cuckooing today. You could be in your house for this; you might not have travelled anywhere.

The UN definition of human trafficking, as set out in the Palermo protocol, is the

“recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.”

As somebody who has spent time at the UN, I can say that its writing style is never snappy. It becomes the place that time forgot when you are trying to agree wording.

In contrast to that, the definition of human trafficking set out in section 2 of the Modern Slavery Act 2015 refers only to cases in which

“the person arranges or facilitates the travel of another person…with a view to”

that other person “being exploited.” Currently, cases that would be considered human trafficking by the UN are not considered to be human trafficking according to our legislation. For example, the current definition excludes cases of harbouring individuals; we just talked about that.

Therefore, as we have discussed, instances of sexual exploitation taking place in one location—such as a person’s home, somewhere they have travelled to freely, or online—would be considered human trafficking under the UN definition but not under the Modern Slavery Act. That happened to a woman who was supported by the STAGE project. She was placed in a B&B when she was facing extreme poverty, homelessness and mis-treatment. Unfortunately, she faced sexual exploitation and forced labour, perpetrated by the owners of the B&B. That is not uncommon in our unregulated supported accommodation services. That bed and breakfast had been used by housing and social services authorities for years to house vulnerable people, and the owners exploited their vulnerabilities. That woman was not trafficked and would not have been covered by the definition; inconsistency with the UN definition means that people like her are not protected in this country.

[Alex Cunningham]

Human trafficking has been with us for thousands and thousands of years, but it has no place in a modern society. The nature of human trafficking offences makes it challenging to assess the number of victims in the UK, but we know that referrals through the national referral mechanism for modern slavery and human trafficking have increased. In the year ending December 2022, 7,936 referrals were made for potential victims of exploitation taking place solely in the UK. That was an increase of 10.3% on the previous year. Almost two thirds of British victims of modern slavery and human trafficking are children being exploited for criminality. That accounts for 2,534 children.

The National Crime Agency has warned that the rising cost of living has almost certainly exacerbated the risks of modern slavery and human trafficking. It has said that it is likely that organised crime groups will consider ways to maintain profitability by offsetting rising costs on to victims, such as by spending less time on victim welfare and by coercing victims into providing even more arduous and risky services.

I am grateful that my hon. Friend the Member for Birmingham, Yardley has provided the Committee with the opportunity to discuss the legal framework around human trafficking. I am sure that all of us in this room would wish that framework to be as robust as possible. As my hon. Friend explained, new clause 24 amends the definition of human trafficking in the 2015 Act to bring it in line with the UN definition, notably by removing the requirement for exploitation to have involved travel. As such, there are a number of cases that would be considered human trafficking by the UN that would not be recognised as such by our criminal justice system.

I am interested to hear the Minister’s thoughts on the discrepancy, particularly if she has had any sense from the Department of the number of cases that may fall into that legislative gap, or if she is aware of any cases of the types that my hon. Friend the Member for Birmingham, Yardley outlined, which would not be recognised as human trafficking in English criminal law.

I am particularly interested to hear some comments from the Minister in relation to my hon. Friend’s point about offences that take place online, which may not fit the current requirement to have involved travel. Such online offending has increased significantly in recent years with even easier access to digital devices and the internet, and it was driven up during covid lockdowns. I wonder whether the Department has considered the impact of amending the framework in the way that my hon. Friend has suggested. I look forward to the Minister’s response.

--- Later in debate ---

[Jess Phillips]

Over six years ago, in 2017, the then Home Office Minister for Crime, Safeguarding and Vulnerability said:

“There needs to be a root and branch review of how women are treated in the criminal justice system when they themselves are victims of abuse”.

However, no such review has ever taken place, and the criminal law still fails to protect those who experience abuse that drives them to offend. We all know that it does that and there has been endless evidence over many years; the Corston report, now decades old, still stands. While householders have legal protection when they act in self-defence against an intruder, no such protection is available to victims—survivors—acting in self-defence against their abuser.

New clauses 31 and 32 would introduce two measures to address that: a new statutory defence for those who are coerced into offending, and an amendment to the law on self-defence for those who use force against their abuser. Common law defences are outdated and ill-fitting to the context of domestic abuse, leaving survivors with no effective defence. These amendments would modernise the law and reflect improved public understanding of domestic abuse. They are based on legal precedents in place to protect other groups and are not gender-specific. They would address gaps in legal protection for survivors, strengthen recognition of the links between victimisation and offending, and deter inappropriate prosecutions. These reforms should be accompanied by a cross-Government policy framework to aid implementation. We propose that the two new clauses and new schedule 2 be added to the Bill.

New clause 31 amends the law on self-defence and is modelled on the provisions for householders in section 76 of the Criminal Justice and Immigration Act 2008. There are Acts that seem to be about two completely separate things put together; it is good to see that Labour Governments did that as well! The clause would allow survivors acting in self-defence against their abusers the same protection as householders defending themselves against an intruder. In the case of a householder using force against an intruder, section 76(5A) of the 2008 Act provides that the degree of force used by said householder

“is not to be regarded as having been reasonable…if it was grossly disproportionate”.

A householder can therefore use force that is dispro-portionate, but not grossly disproportionate, provided that the degree of force was reasonable. It is outrageous to deny equivalent protection to women who are victims of domestic abuse defending themselves against someone who has raped, tortured, abused and attacked them. As Nicola Wake has argued, that disparity in protection is impossible to justify.

New clause 32 and new schedule 2 introduce statutory defences for survivors modelled on section 45 of the Modern Slavery Act. They would give survivors of domestic abuse similar protections to victims of human trafficking who are compelled to offend. A case study from the Centre for Women’s Justice makes the need for that clear:

“YS is charged with driving whilst disqualified, driving with excess alcohol, driving without insurance and dangerous driving. An officer noticed a vehicle with its brake lights permanently illuminated and swerving from side to side. He activated the siren, indicating for the vehicle to stop. The vehicle did not stop, and a chase continued for five minutes. In the driving seat was a woman, YS.

YS explained she had been dragged from her home partially dressed by her partner, forced to drive, and that he threatened to kill her if she did not drive on. The partner was screaming at her throughout, punching her in the ribs and trying to grab the steering wheel.

The police stop this vehicle and YS is prosecuted. Despite running duress and despite her being viewed as credible, she is convicted. Her conviction was upheld on appeal to the High Court.”

Duress was brought up earlier, and I got some points in the break on the defence of duress from some lawyers who have run these cases. As demonstrated by that case study, the defence of duress in these cases is inadequate. For example, the duress defence emphasises the threat of death or serious injury and ignores complexities of DA: a barrister I spoke to in the break said, “Basically, the reason duress doesn’t work is because it doesn’t work. You have to basically prove you had a gun to your head in the moment.” It does not recognise sexual, financial or psychological abuse. It also fails to recognise the nature of domestic abuse, because for the defence of duress to succeed, the threat of physical harm must be imminent—it has to be a gun to your head. The proposed statutory defence is closely modelled on section 45 of the Modern Slavery Act 2015, which provides a defence for victims of trafficking who offend as part of, or due to, their experience of modern slavery or trafficking. The same protections should be offered to victims of domestic abuse.

[Alex Cunningham]

I will be brief, because my hon. Friend’s contribution was very thorough. The explanatory statements make it clear that the aim of these new clauses would speak to the agenda of the House in relation to ending violence against women and girls while ensuring that they get the protection of the law. There is no doubt that the development of such defences in law is far from easy—in fact, it is extremely complicated, as was illustrated—but it is important that we get it right. Labour is determined that women and girls are protected from violence. The work done by my colleagues will help to ensure that we as a society do better in that regard.

No one can doubt that women can be driven to defend themselves when subject to controlling behaviour and domestic abuse, and they can then face prosecution for their actions. Similarly, the controller can drive them to commit other crimes for the benefit of that controller. It can be well argued in both cases that those women are not responsible for their own actions. I am interested in what the Minister will say and how she will address such things to ensure that the victim is not turned into a criminal.

[Laura Farris]

I thank the hon. Member for Birmingham, Yardley for tabling new clauses 31 and 32 and new schedule 2, which would create two new statutory defences for victims of domestic abuse. She mentioned the defence of self-defence, which is not available to householders only; self-defence is a complete defence available to anyone put in a situation where they are required to engage it. I make that point in passing.

The Committee is aware of the work that the Government have done on domestic abuse, so I will confine my remarks to our most recent work, which has focused on the issues set out in the hon. Member’s new clauses and new schedule. First, she is aware that we commissioned a domestic homicide review—undertaken by Clare Wade KC, who has given evidence to the Committee—which was the first from any Government to look at homicide in a domestic context. As part of that exercise, we invited Clare Wade to look at the law on domestic abuse defences. She did not have time to do so then, but she recommended that a further review should be undertaken. At the end of 2023, we commissioned that review by the Law Commission to look specifically at women driven to kill their abusive partners and the defences available to them, and to consider specifically whether legislative change was necessary. The review is due to conclude later this year—I understand by the summer.

I hope to reassure the hon. Member by reading out a few sections—I will only read short sections—of the review’s terms of reference, which I believe dovetail neatly with the points she has made in her new clauses and new schedule. Those terms of reference state:

“Most deaths that occur in the context of domestic abuse involve male abusers who kill their female victims. A much smaller number of (almost entirely female) victims of domestic abuse kill their (almost entirely male) abusers…Despite reforms to the partial defences of provocation (now loss of control) and diminished responsibility, concerns continue to be raised that the existing defences to murder and their application in the courts do not achieve just outcomes for this group of victims of domestic abuse who become defendants.”

It continues:

“The Law Commission will review the use of defences in domestic homicide cases in the light of modern understandings of the effects of domestic abuse on victims. The project will consider, but is not limited to, the following:

(1) whether the existing defences to murder, and arguments as to lack of requisite intent for murder, operate satisfactorily in the context of a defendant who has suffered domestic abuse;

(2) if not, whether reform of the existing defences or a new bespoke defence or defences are needed for the group identified…while ensuring that reformed or new defences are appropriately limited…

(3) the operation of the applicable rules of evidence, procedure, and ways that the defences are considered from the beginning of the police investigation up to and including at trial, in this context”.

--- Later in debate ---

[Alex Norris]

I note what the Minister says around the transformed approach. The only evidence that will work is whether the charging number increases and cases get to judgment. We will wait to see whether that proof is in the pudding, but on that basis I am happy not to press the new clause, although we might have to return to the matter on Report. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 40

Doorstep theft: aggravating factor in theft offence

“(1) The Sentencing Code 2020 is amended as follows.

(2) After section 72 (supply of psychoactive substance in certain circumstances) insert—

‘72A Theft from outside a dwelling place

(1) This clause applies where the court is considering an offence under section 1 of the Theft Act 1968.

(2) Where the theft is of an item delivered to, but not yet taken inside, a person’s dwelling place, the court must—

(a) treat this fact as an aggravating factor, and

(b) state in open court that the offence is so aggravated.’”—(Alex Cunningham.)

This new clause defines theft from a doorstep as an aggravating factor for the purposes of sentencing in cases of theft.

Brought up, and read the First time.

[Alex Cunningham]

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

Increasing numbers of people are choosing to shop online regularly, as opposed to shopping on the high street. With that comes an increase in the number of opportunist thieves. Examples of crime prevention advice on doorstep thefts include, on the Staffordshire police website, Chief Inspector Giles Parsons advising shoppers

“to do all that they can to stop this crime happening… Ask for your deliveries to be diverted to trusted neighbours or friends if you’re not going to be home. If this isn’t possible, attempt to rearrange to a time when you know you will be in or choose to collect it instead.”

Similar advice urging preventive safety measures can be found on the Merseyside police website.

Meanwhile, parcel theft has received little attention in Parliament, although it was raised in the other place in June last year, when the then Business and Trade Minister, the Earl of Minto, said:

“Under the Consumer Rights Act 2015, it is the seller’s responsibility to ensure items ordered are delivered and Ofcom requires postal operators to take all reasonable steps to minimise exposure of postal packets to risk of loss, theft, damage or interference in terms of an essential requirement.”

Citizens Advice assumed a statutory responsibility to represent consumers of postal services in 2014. It publishes a parcels league table, and the 2023 results showed that the rate of parcel problems is incredibly high. It says that urgent action is needed, but it focuses its work on better regulation of the parcel delivery sector, rather than on sentencing for individual offenders. Overall, there has been a more limited focus on the offenders themselves.

Contrary to the lack of parliamentary discussion, the issue has been gaining attention in the media. The Telegraph reported on “porch pirates” in December last year, arguing:

“It’s a crime born of modern lifestyles, the explosion in online shopping providing new opportunities for thieves.”

The technology and locker company Quadient submitted freedom of information requests to UK police forces seeking statistics on parcel theft. The average reported value of a stolen parcel is £115.07, which, with Citizens Advice claiming that 5.5 million parcels are stolen each year, suggests a hidden economy of up to £630 million. Police forces warn that just a fraction of parcel theft is actually reported, meaning nobody knows the true extent of the problem. Comparing data held by the police to Citizens Advice’s figure, it appears that fewer than 0.002% of parcel thefts are ever reported.

The material released in response to the freedom of information request also indicated that the most common time for thefts to occur is between 9 am and 5 pm. Forces report that people aged 22 to 34 are the most likely to have a parcel stolen, suggesting that many parcels are stolen from young people while they are at work. The highest average value indicated for a stolen parcel was—no surprise—from City of London police, at £1,128, almost 10 times higher than the UK average. Conversely, Durham constabulary reported an average of £9.78, less than a tenth of the UK average and £1,118 lower than City of London.

Given the growing concern among consumers, whose doorsteps are no longer safe places, it is clear that firm action must be taken. The new clause would introduce an aggravating factor for such offences, recognising that, while the thieves may not actually enter properties, they do trespass in the gardens or yards of their victims, who may well come face to face with them. Criminals should know that, if they are prepared to enter people’s property to steal—just like a burglar would—they risk a higher sentence than for theft from, say, a shop.

The Minister will be pleased to know that I have no intention of pressing the new clause to a vote, but I hope that she will recognise this growing crime in our communities and take action to address it.

[Laura Farris]

I thank the hon. Member for shining a spotlight on an increasingly common offence. I reassure him that we take theft offences seriously. He will be aware that the maximum sentence is already seven years.

Courts are already required to consider an offender’s culpability when sentencing, which allows sentences to reflect the circumstances of the individual case. As the sentencing guidelines are structured, cases of theft that indicate a high level of culpability include those where planning took place, where there was premeditation, where a vulnerable victim was deliberately targeted, or where the offending was undertaken as part of a group and the offender played a leading role. By contrast, a theft that took little or no planning—for example, some kids nicking a box off a doorstep—would be a lower-culpability offence. That is how we square the nature of the offending.

[Alex Cunningham]

I accept that, and a child who nicks a box off a step just needs a good talking to, in my opinion, but I illustrated in my speech that this activity is becoming more and more organised, and doubtless will be more so in the future. We have to think ahead and make sure that we are ready. It might be the organised crime thing of the year. If people can pick up parcels worth more than £1,000 from somebody’s doorstep, there is certainly a need for proper action.

[Laura Farris]

The guidelines already include a range of aggravating factors for theft, among which are stealing to order, an intention to cause harm to the victim personally, and where the theft was an act of revenge. Obviously, previous convictions of any kind will also be an aggravating factor and result in a higher sentence.

At the moment, the Government resist the new clause, on the basis that it treats doorstep theft more seriously than other theft in similar circumstances, such as the theft of something that had not been delivered but was still sitting in the back of the van. We think that should be treated comparably. At the moment, we think the new clause would lead to discrepancies in the law of theft, which would not be a good development. Therefore, with respect to the hon. Member for Stockton North for raising a perfectly valid point—and I rather regret that he might be right that this is a growing area of crime—I urge him to withdraw the new clause.

[Alex Cunningham]

As I have indicated, I will withdraw the new clause, but I am grateful for the opportunity to raise the fact that this is a growing problem in our society. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 41

Offence of assaulting a retail worker

“(1) It is an offence for a person to assault, threaten or abuse another person who is a retail worker, and who is engaged, at the time, in retail work.

(2) The offence under section 1 of threatening or abusing a retail worker—

(a) is committed by a person if the person—

(i) behaves in a threatening or abusive manner towards the worker, and

(ii) intends by the behaviour to cause the worker or any other person fear or alarm or is reckless as to whether the behaviour would cause such fear or alarm.

(b) applies to—

(i) behaviour of any kind including, in particular, things said or otherwise communicated as well as things done,

(ii) behaviour consisting of—

(A) a single act, or

(B) a course of conduct.

(3) No offence is committed under subsection (1) unless the person who assaults, threatens or abuses knows or ought to know that the other person is a retail worker and is engaged, at the time, in retail work.

(4) A person who commits an offence under subsection (1) is liable, on summary conviction, to imprisonment for a term not exceeding 12 months or a fine not exceeding £10,000 (or both).

(5) An offence committed under subsection (1) is aggravated if the behaviour constituting the offence occurred because of the enforcement of a statutory age restriction.

(6) Where, in proceedings for an offence under subsection (1), it is—

(a) specified in the complaint that the offence is aggravated by reason of the retail worker enforcing a statutory age restriction, and

(b) proved that the offence is so aggravated,

the court must—

(a) state on conviction that the offence is so aggravated,

(b) record the conviction in a way that shows that the offence is so aggravated,

(c) take the aggravation into account in determining the appropriate sentence, and

(d) state—

(i) where the sentence imposed in respect of the offence is different from that which the court would have imposed if the offence were not so aggravated, the extent of and the reasons for that difference, or

(ii) otherwise, the reasons for there being no such difference.

(7) Evidence from a single source is sufficient to establish, for the purposes of this section—

(a) whether a person is a retail worker,

(b) whether the person is engaged, at the time, in retail work,

(c) whether an offence committed under subsection (1) is aggravated because of the enforcement of a statutory age restriction.

(8) In this section—

“retail worker” —

(a) means a person whose usual place of work is retail premises, or whose usual place of work is not retail premises but who does retail work,

(b) includes, in relation to a business that owns or occupies any premises in which the person works, a person who—

(i) is an employee of the business,

(ii) is an owner of the business, or

(iii) works in the premises under arrangements made between the business and another person for the provision of staff,

(c) includes a person who delivers goods from retail premises.

“retail premises” means premises that are used wholly or mainly for the sale or supply of goods, on a retail basis, to members of the public.

“retail work” —

(a) in the case of a person whose usual place of work is retail premises, means any work in those retail premises,

(b) in the case of a person whose usual place of work is not retail premises, means work in connection with—

(i) the sale or supply of goods, on a retail basis, to members of the public, or

(ii) the sale or supply of services (including facilities for gambling) in respect of which a statutory age restriction applies,

(c) in the case of a person who delivers goods from retail premises, means work in connection with the sale or supply of goods, on a retail basis, to members of the public done during the period beginning when the person arrives at a place where delivery of goods is to be effected and ending when the person leaves that place (whether or not goods have been delivered),

(d) is not dependent on a person receiving payment.

“enforcement” , in relation to a statutory age restriction, includes—

(a) seeking information as to a person's age,

(b) considering information as to a person's age, or

(c) refusing to sell or supply goods or services,

for the purposes of complying with the restriction (and “enforcing” is to be construed accordingly),

“statutory age restriction” means a provision in an enactment making it an offence to sell or supply goods or services to a person under an age specified in that or another enactment.”—(Alex Norris.)

Brought up, and read the First time.

[Alex Norris]

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

The new clause would create a new offence of assaulting a retail worker. It is no secret that I have been pursuing this issue in some form for my entire parliamentary career, so I do not think the Minister will have been surprised to see it on the amendment paper. The new clause builds on the long campaign by the shop workers’ union USDAW—I declare an interest as a member—the Co-operative party, Tesco, the Co-op Group, the British Retail Consortium and many others to create a new law with tougher penalties for those who attack and abuse shop workers. It is a campaign that unites workers and management, and retailers big and small. We have made significant progress in previous legislation by securing an aggravating factor in sentencing for assaulting a shop worker, but a proper offence has yet to be introduced. The new clause would do that.

Everyone has the right to feel safe at work. The Minister asked a number of times during the evidence sessions why shop workers should be treated as a distinct category. The important factor is that, as well as selling things for themselves or their employer, depending on whether they own the shop or are employed to work there, and wearing their name badge or uniform, they have been asked by us in this place to restrict the sale of dozens of categories of items, including cigarettes, alcohol, knives, acids—you name it. That is a hugely significant act of public service, and the consequences of their not abiding by that request are very significant for them personally and potentially catastrophic for the rest of society.

In that moment, shop workers are put at risk, because every declined sale is a possible point of friction. Actions taken by us have created that flashpoint for violence and abuse, and many of us will have heard the harrowing stories of life-changing injuries that shop workers have suffered simply doing their job. It seems to me proper that if we are going to use legislation to require shop workers to enforce restrictions, then we should be prepared to use it to protect them. We should have their backs in that moment. That is the basic premise.

[Alex Cunningham]

My hon. Friend referred to the evidence sessions. Paddy Lillis said:

“There are about 1,000 incidents a day, and we think that that is just the tip of the iceberg”.––[Official Report, Criminal Justice Public Bill Committee, 14 December 2023; c. 110, Q57.]

He went on to encourage retail workers who are not reporting incidents to do so. The Government’s defence against calls to introduce a specific offence has always been, “There’s not enough of it. It’s not significant enough for a specific offence.” Does my hon. Friend agree that if there are 1,000 incidents a day, there is good cause for the new clause?

[Alex Norris]

Yes. We are talking about an epidemic scale, and it behoves us to take action. Too many staff have given up on us or on the police and are just pricing violence and abuse in as part of the job, which they should never have to do, or leaving the industry and going to do something else.

The staggering degree of violence and abuse is now accompanied by shoplifting. The new crime statistics published last week show that shoplifting has increased by just under a third in the last year alone, as criminals run rife in our town centres. That is what our staff are facing every day—that is the level of the onslaught—and it has a knock-on impact on those who do not work in the shops but live in and love their community. Businesses in difficult economic circumstances can go under if hit hard by persistent shoplifting, which has a catastrophic impact on local economies and puts off residents. Similarly, big chains are making judgments on a store-by-store basis about whether to keep their shops open if they cannot protect colleagues or if crime makes them unviable, and a big retailer pulling out of a community has a huge impact on the high street.

--- Later in debate ---

[Chris Philp]

That is not quite what I was saying. I am going to point out a number of potential weaknesses in the new clause. That is one of them, but it is not the only one. I am just saying that it does not address any of the more serious assaults from ABH upwards. It would not affect probably 100% of the assaults of most concern, and probably 90% of all assaults.

The second issue is equity between retail workers and other public-facing workers. Retailers do very important work. As the shadow Minister rightly said, they do things such as age verification, which we in Parliament asked them to do. They put themselves in harm’s way, and they have been suffering from appalling abuse, which we all want to stop. All of those things are absolutely true.

This new clause, however, targets only retail workers. There are quite a few other workers with an equally strong claim. When it came to the statutory aggravating factor, which I will talk about in a moment, we orientated it towards all public-facing workers—not just retail workers. If we accept new clause 41 as drafted, reasonable questions might arise about teachers, who sometimes suffer assault at school, or bus, tram or tube drivers. What about refuse collectors, local councillors, social workers, and all these other workers who do an important job on behalf of the public, who sadly are often assaulted? They might say, “What about us?” In the previous bit of legislation, which I will refer to in a moment, we directed it towards the inclusion of all public-facing workers, not just retail workers, important though they are of course.

[Alex Cunningham]

I am sorry for trespassing on the territory of my hon. Friend the Member for Nottingham North. When we changed the law in relation to health workers, it was because there was a recognised high incidence of assaults on them. We have the same situation now with shopworkers. We do not have the same situation with teachers, refuse collectors or other public servants.

[Chris Philp]

Other public-facing workers sadly suffer from assault—bus drivers being an obvious example. I will come on to the legislation we introduced. The hon. Member for Stockton North and I were both on the Bill Committee for the Police, Crime, Sentencing and Courts Act 2022. He will recall that, recognising this concern about retail workers and others, we passed a measure that made it a statutory aggravating factor where the victim of any assault—not just common assault—was a public-facing worker. When judges pass sentence and the victim is a public-facing worker—that includes retail workers—they are obliged by primary legislation to consider a longer sentence than they otherwise would. Reflecting the seriousness of this issue that the shadow Minister, the hon. Member for Nottingham North, so eloquently talked about, this ensures that there is a longer sentence—the person concerned will go to prison for a longer period of time. That came into force less than two years ago, so we have taken action. It would be reasonable to consider just how that is bedding in before going further, much as I sympathise with the intent behind this new clause.

Mention has been made of the offence in Scotland on which the new clause has been modelled, which I think came into force in 2021. The shadow Minister referenced the fact that there has apparently been some uplift in charges in Scotland as a result. I would be interested to find out—maybe outside of this Committee—how that has been established. Prior to this offence going on to the statute book in Scotland, offences where a retail worker was the victim would have been recorded just as assaults, in common with all other assaults. I do not know how it is possible to strip out the baseline to understand how many retail worker assaults were being prosecuted before the new law compared with afterwards. Before the new law in Scotland, they would all just have been counted as regular assaults. I do not know how those that had a retail worker as a victim could be isolated. Maybe the shadow Minister could write to me or we can discuss it later, because I would be interested to hear how that data is derived.

I know I am not supposed to show props or exhibits, so I will not do so, but I have some data on shoplifting prosecutions in Scotland and England over the last seven or eight years that has been indexed. The Committee may want to know that the graph in Scotland and England basically tracks one for one, including the two years after 2021. Certainly, the prosecution of shoplifting offences, which is different from assaults but gives a sense of police action, does not seem to be any different in Scotland and England over the period concerned. If there is evidence, from USDAW or otherwise, on the effect of that Scottish law change, I would be very interested to see and consider it further.

--- Later in debate ---

[Jess Phillips]

The hon. Member for Bishop Auckland did not ask me to press new clause 50. However, I can see from looking through the list of supporters that she has managed to unite me and the hon. Member for Ashfield (Lee Anderson)—she may be the only person ever to have managed that. I hope he doesn’t take my ribbing too seriously and change his vote on something.

The hon. Member for Bishop Auckland tells me that the Minister and the Secretary of State have both been engaging with her and that she wishes to continue that engagement, so I imagine that these issues will arise again on Report or even in the Lords. I will not press the new clause to a vote today, but the hon. Member for Bishop Auckland is young, bright and short and is determined to see some action on the issue before she leaves this place. Who could blame her, considering her experiences? I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 51

Aggravated offences: hostility towards transgender identity, sexual orientation and disability

“(1) The Crime and Disorder Act 1998 is amended as follows.

(2) For the first cross-heading under Part II, substitute ‘Offences aggravated on the grounds of race, religion, disability, sexual orientation or transgender identity: England and Wales’.

(3) In section 28—

(a) for the heading, substitute ‘Meaning of “aggravated on the grounds of race, religion, disability, sexual orientation or transgender identity”’;

(b) in subsection (1), omit ‘racially or religiously aggravated’ and insert ‘aggravated on the grounds of race, religion, disability, sexual orientation or transgender identity’;

(c) in subsection (1)(a), omit from ‘based on’ to the end of sub-subsection (a) and insert—

‘—

(i) the victim’s membership (or presumed membership) of a racial group;

(ii) the victim’s membership (or presumed membership) of a religious group;

(iii) a disability (or presumed disability) of the victim;

(iv) the sexual orientation (or presumed sexual orientation) of the victim; or

(v) the victim being (or being presumed to be) transgender, or’;

(d) in subsection (1)(b), omit from ‘hostility towards’ to the end of sub-subsection (b) and insert—

‘—

(i) members of a racial group based on their membership of that group;

(ii) members of a religious group based on their membership of that group;

(iii) persons who have a disability or a particular disability;

(iv) persons who are of a particular sexual orientation; or

(v) persons who are transgender.’;

(e) in subsection (2), in the definition of ‘membership’ leave out ‘racial or religious’ and insert ‘relevant’.

(4) In section 29—

(a) for the heading, substitute ‘Assaults aggravated on grounds of race, religion, disability, sexual orientation or transgender identity’;

(b) in subsection (1), omit ‘racially or religiously aggravated’ and insert ‘aggravated on the grounds of race, religion, disability, sexual orientation or transgender identity’.

(5) In section 30—

(a) for the heading, substitute ‘Criminal damage aggravated on the grounds of race, religion, disability, sexual orientation or transgender identity’;

(b) in subsection (1), omit ‘racially or religiously aggravated” and insert ‘aggravated on the grounds of race, religion, disability, sexual orientation or transgender identity’.

(6) In section 31—

(a) for the heading, substitute ‘Public order offences aggravated on the grounds of race, religion, disability, sexual orientation or transgender identity’;

(b) in subsection (1), omit ‘racially or religiously aggravated’ and insert ‘aggravated on the grounds of race, religion, disability, sexual orientation or transgender identity’.

(7) In section 32—

(a) for the heading, substitute ‘Harassment etc aggravated on the grounds of race, religion, disability, sexual orientation or transgender identity’;

(b) in subsection (1), omit ‘racially or religiously aggravated’ and insert ‘aggravated on the grounds of race, religion, disability, sexual orientation or transgender identity’.”—(Alex Cunningham.)

This new clause would include offences motivated by hostility towards an individual’s disability status, sexual orientation or transgender identity (or perception thereof) in those which are aggravated under the Crime and Disorder Act 1998.

Brought up, and read the First time.

[Alex Cunningham]

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

New clause 51 would address the disparity between existing characteristics and current hate crime legislation. It would create parity for maximum possible penalties for all five characteristics defined under the sentencing code. Under current hate crime legislation, hate crimes based on race and/or religion can have higher maximum penalties than their base equivalents, whereas hate crimes based on sexual orientation, transgender identity and/or disability cannot. This creates a two-tier system of justice.

There are precedents for expanding the characteristics covered by aggravated offences. The Crime and Disorder Act 1998 originally defined only racially aggravated offences; this was amended in the Anti-terrorism, Crime and Security Act 2001 to include religiously aggravated offences. In December 2021, the Law Commission published “Hate crime laws: Final report”, a comprehensive review of all hate crime legislation. Its conclusion was:

“We remain of the view that we expressed in our 2014 report that the current hierarchy of protection is unfair and sends a distinctly negative message to victims of hate crimes on the basis of disability, sexual orientation and transgender identity. We therefore recommend parity of protection for aggravated offences across all five characteristics.”

It also stated:

“There was very strong support for a consistent approach amongst organisational stakeholders…For example, The Bar Council simply said…‘There would not appear to be any good reason to withhold parity of protection across the range of protected characteristics.’”

Does the Minister agree with the Law Commission’s recommendation that offences motivated by hostility towards an individual’s disability status, sexual orientation or transgender identity should be encompassed within the aggravated offences under the Crime and Disorder Act 1998?

New clause 51 comes in the context of soaring levels of hate crime reporting. Over 145,000 cases were reported in 2022-23. Across all monitored strands of hate crime, the numbers of offences have soared since 2011-12. Racially motivated hate crime rose by over 200% in the period, topping 100,000 instances for the first time in 2021-22. Meanwhile, hate crime motivated by religion increased by 433%. What is wrong with our bloomin’ society? By sexual orientation, it has increased by 493% and, by transgender identity, it has increased by 1,263%. Violent crime or crimes against the person rose as a proportion of hate crime offences from 29% in 2012-13 to 41% in 2022-23. The number of violent hate crime offences has risen sixfold, from 12,739 to 63,895 in 2022.

LGBT+ people and people with a disability should be able to live their life free from fear, abuse or violence. Labour has committed to take back our streets and be tough on hate crime. We will do so by strengthening and equalising the law so that every category of hate crime is treated as an aggravated offence, to ensure that everyone who falls victim to a hate crime is treated equally under the law. I hope that the Government will support new clause 51.

[Laura Farris]

I will be brief. I am grateful to the hon. Gentleman for his explanation of the new clause, which seeks to add disability, sexual orientation and trans-gender identity as protected characteristics for the purposes of the aggravated offences set out in the Crime and Disorder Act. I agree with him that it is important that our legal framework is robust and comprehensive when it comes to hate crime. It was for that reason that the Government asked the Law Commission to carry out a detailed review of hate crime legislation.

The Law Commission provided very helpful recom-mendations on the reform of hate crime laws in December 2021, and the Government intend to publish later this year a full response that will address each recommendation. In the interest of brevity, I hope the hon. Gentleman will agree that it would be premature to make decisions before the formal Government response is published. The Law Commission made 34 recommendations, and we want to respond to each one. Accordingly, I respectfully invite him to withdraw the new clause.

[Alex Cunningham]

I am grateful for the Minister’s comments, but I think it is clear that the Law Commission favours this work. We favour it—we believe in equality—so I will press the new clause to a vote.

Question put, That the clause be read a Second time.

--- Later in debate ---

[Alex Norris]

I am grateful for the Minister’s assurances on the Government’s intent, and on that basis I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Schedule 1

Notification orders

“1 The Counter-Terrorism Act 2008 is amended as follows.

2 (1) Section 40 (overview) is amended as follows.

(2) In subsection (2) after paragraph (a) insert—

“(aa) orders applying the notification requirements to persons dealt with in the United Kingdom for certain offences to which this Part does not apply (see section 57A and Schedule 4A),”

(3) After subsection (3) insert—

“(4) Schedule 6A provides for orders applying the notification requirements to persons dealt with for certain service offences to which this Part does not apply.”

3 In section 57, in the heading for “Notification” substitute “Foreign offence notification”.

4 After that section insert—

“57A Domestic offence notification orders

Schedule 4A makes provision for notification orders applying the notification requirements of this Part to persons who have been dealt with for certain offences that are not offences to which this Part applies.”

5 (1) Section 59 (application to service offences) is amended as follows.

(2) The existing provision becomes subsection (1) of that section.

(3) After that subsection insert—

“(2) Schedule 6A makes provision for notification orders applying the notification requirements of this Part to persons who have been dealt with for certain service offences that are not offences to which this Part applies.”

6 (1) Section 61 (meaning of “dealt with” for an offence) is amended as follows.

(2) In subsection (4)(b)—

(a) for “or” substitute “, paragraph 2(6)(b) of Schedule 4A”;

(b) after “Schedule 6” insert “or paragraph 2(6)(b) of Schedule 6A”.

(3) In subsection (5), at the end of paragraph (a) (before the “and”) insert—

“(aa) paragraph 2(5) of Schedule 4A or paragraph 2(5) of Schedule 6A (conditions for making domestic or service offence notification order where offence dealt with before commencement),”

7 (1) Schedule 4 is amended as follows.

(2) In the Schedule heading for “Notification” substitute “Foreign offence notification”.

(3) For “notification order”, in each place it appears (including in any heading except the Schedule heading), substitute “foreign offence notification order”.

8 After Schedule 4 insert—

“Schedule 4A

Domestic offence notification orders

Introductory

1 In this Schedule—

“the appropriate court” means—

(a) in England and Wales or Northern Ireland, the High Court;

(b) in Scotland, the Court of Session;

“authorised person” means the Secretary of State or—

(a) in England and Wales, a chief officer of police;

(b) in Scotland, the chief constable of the Police Service of Scotland;

(c) in Northern Ireland, the chief constable of the Police Service of Northern Ireland;

“offence”: any reference to an offence is to an offence under the law of England and Wales, Scotland or Northern Ireland (and does not include a service offence).

Domestic offence notification orders

2 (1) This paragraph applies where an authorised person makes an application to the appropriate court for an order under this paragraph (a “domestic offence notification order”) in respect of a person (“the offender”).

(2) The court must make a domestic offence notification order in respect of the offender if it is satisfied that the following 4 conditions are met (and must otherwise refuse the application).

(3) The first condition is that the offender has been dealt with for an offence (“the relevant offence”) that—

(a) was committed before 29 June 2021,

(b) is punishable with imprisonment for more than 2 years, and

(c) is not an excluded offence.

(4) “Excluded offence” means—

(a) an offence to which this Part applied when the offender was dealt with (see sections 41 and 42),

(b) an offence in relation to which section 30 or 31 of this Act or section 69 of the Sentencing Code applied,

(c) an offence in relation to which section 31 of this Act would have applied if paragraph (b) of subsection (1) of that section were omitted, or

(d) an offence under section 19, 21A or 39 of the Terrorism Act 2000.

(5) If the offender was dealt with for the relevant offence before the commencement of this Part, sub-paragraph (4) applies as if for paragraph (a) there were substituted—(a)an offence which, on the commencement of this Part, was within section 41(1) or (2),.

(6) The second condition is that—

(a) the offender has been dealt with for the relevant offence in a way mentioned in section 45 (reading any reference to an offence to which this Part applies as a reference to the relevant offence),

(b) the offender was aged 16 or over at the time of being dealt with for the relevant offence, and

(c) the offender—

(i) is imprisoned or detained in pursuance of the sentence passed or order made in respect of the offence,

(ii) would be so imprisoned or detained but for being unlawfully at large, absent without leave, on temporary leave or leave of absence, or on bail pending an appeal, or

(iii) is on licence, having served the custodial part of a sentence of imprisonment in respect of the offence.

(7) The third condition is that the relevant offence has a terrorist connection (see section 93).

(8) The fourth condition is that the period in respect of which the notification requirements would apply in respect of the relevant offence (see section 53) has not expired.

Restrictions on applications for domestic offence notification orders

3 (1) A chief officer of police may make an application for a domestic offence notification order in respect of a person only if—

(a) the person resides in the chief officer’s police area, or

(b) the chief officer believes that the person is in, or is intending to come to, that area.

(2) The chief constable of the Police Service of Scotland may make an application for a domestic offence notification order in respect of a person only if—

(a) the person resides in Scotland, or

(b) the chief constable believes that the person is in, or is intending to come to, Scotland.

(3) The chief constable of the Police Service of Northern Ireland may make an application for a domestic offence notification order in respect of a person only if—

(a) the person resides in Northern Ireland, or

(b) the chief constable believes that the person is in, or is intending to come to, Northern Ireland.

Effect of domestic offence notification order

4 The effect of a domestic offence notification order is that the notification requirements of this Part apply to the offender.

Modifications of this Part

5 (1) The following modifications apply where a domestic offence notification order is made.

(2) Section 43(1) does not apply to the offender, as regards the relevant offence.

(3) Section 47(1) (initial notification) applies as if the reference to the day on which the person is dealt with were a reference to the date of service of the domestic offence notification order.

(4) For the purposes of section 53 (period for which notification requirements apply), references there to “the offence” are to the relevant offence.

(5) For the meaning of “the relevant offence”, see paragraph 2(3).”

9 After Schedule 6 insert—

“Schedule 6A

Service offence notification orders

Introductory

1 In this Schedule—

“the appropriate court” means—

(a) in England and Wales or Northern Ireland, the High Court;

(b) in Scotland, the Court of Session;

“authorised person” means the Secretary of State or—

(a) in England and Wales, a chief officer of police;

(b) in Scotland, the chief constable of the Police Service of Scotland;

(c) in Northern Ireland, the chief constable of the Police Service of Northern Ireland.

Service offence notification orders

2 (1) This paragraph applies where an authorised person makes an application to the appropriate court for an order under this paragraph (a “service offence notification order”) in respect of a person (“the offender”).

(2) The court must make a service offence notification order in respect of the offender if it is satisfied that the following 4 conditions are met (and must otherwise refuse the application).

(3) The first condition is that the offender has been dealt with for a service offence (“the relevant offence”) that—

(a) is punishable with imprisonment for more than 2 years,

(b) is not an excluded offence, and

(c) if a day has been appointed for the commencement of section 1 of the Counter-Terrorism and Sentencing Act 2021 as that section has effect for the purposes of section 69 of the Sentencing Code as applied by section 238 of the Armed Forces Act 2006, is committed before that day.

(4) In sub-paragraph (3)(b) “excluded offence” means—

(a) a service offence to which this Part applied when the offender was dealt with (see paragraphs 1 and 2 of Schedule 6),

(b) a service offence in relation to which section 32 of this Act or section 69 of the Sentencing Code applied, or

(c) a service offence as respects which the corresponding civil offence is an offence under section 19, 21A or 39 of the Terrorism Act 2000.

(5) If the offender was dealt with for the relevant offence before the commencement of this Part, sub-paragraph (4) applies as if for paragraph (a) there were substituted—

“(a) a service offence as respects which the corresponding civil offence was on the commencement of this Part within section 41(1) or (2),”.

(6) The second condition is that—

(a) the offender has been dealt with for the relevant offence in a way mentioned in paragraph 5 of Schedule 6 (reading any reference to a service offence to which this Part applies as a reference to the relevant offence),

(b) the offender was aged 16 or over at the time of being dealt with for the relevant offence, and

(c) the offender—

(i) is imprisoned or detained in pursuance of the sentence passed or order made in respect of the offence,

(ii) would be so imprisoned or detained but for being unlawfully at large, absent without leave, on temporary leave or leave of absence, or on bail pending an appeal, or

(iii) is on licence, having served the custodial part of a sentence of imprisonment in respect of the offence.

(7) The third condition is that the relevant offence has a terrorist connection (see section 93).

(8) The fourth condition is that the period in respect of which the notification requirements would apply in respect of the relevant offence (see paragraph 7 of Schedule 6) has not expired.

Restrictions on applications for service offence notification orders

3 (1) A chief officer of police may make an application for a service offence notification order in respect of a person only if—

(a) the person resides in the chief officer’s police area, or

(b) the chief officer believes that the person is in, or is intending to come to, that area.

(2) The chief constable of the Police Service of Scotland may make an application for a service offence notification order in respect of a person only if—

(a) the person resides in Scotland, or

(b) the chief constable believes that the person is in, or is intending to come to, Scotland.

(3) The chief constable of the Police Service of Northern Ireland may make an application for a service offence notification order in respect of a person only if—

(a) the person resides in Northern Ireland, or

(b) the chief constable believes that the person is in, or is intending to come to, Northern Ireland.

Effect of service offence notification order

4 The effect of a service offence notification order is that the notification requirements of this Part apply to the offender.

Modifications of this Part

5 (1) The following modifications apply where a service offence notification order is made.

(2) Section 47(1) (initial notification) applies as if the reference to the day on which the person is dealt with were a reference to the date of service of the service offence notification order.

(3) Paragraph 3(1) of Schedule 6 does not apply to the offender, as regards the relevant offence.

(4) For the purposes of paragraph 7 of that Schedule (period for which notification requirements apply), references there to “the service offence” or “the offence” are to the relevant offence.

(5) For the meaning of “the relevant offence”, see paragraph 2(3).””—(Chris Philp.)

The new schedule provides for orders applying the notification requirements in Part 4 of the Counter-Terrorism Act 2008 to persons who have committed certain domestic offences or service offences.

Brought up, read the First and Second time, and added to the Bill.

[Alex Cunningham]

On a point of order, Sir Graham. Is it in order for me to thank you and your fellow Chairs for keeping us in order while still allowing us free-flowing discussions; the Hansard staff and other House staff; our Public Bill Office staff, who always manage to keep me in order; the Ministers for listening and recognising that the Bill has some way to go to satisfy those of us in opposition; and my colleagues and Government Members for their contributions?

I have saved my last comments for the right hon. Member for Croydon South. During our deliberations, he confessed to having some affection for me—I much appreciated that. I had developed an affection for his beard. I had thought that he was trying to rebuild the reputation of the beard within the Home Office after the Home Secretary, having insulting my constituency, was disqualified from the parliamentary beard of the year competition—a competition that I assure the Committee I went on to win. I hope that I can encourage the right hon. Member for Croydon South to reconsider and grow the beard again. He could succeed me next time around!

[Chris Philp]

Further to that point of order, Sir Graham. I appreciate the shadow Minister’s advice on the beard. Contrary to speculation in the Daily Mail a day or two ago that it was removed for electoral reasons, it was in fact removed following intense lobbying by my daughter, who did not like it very much. Perhaps in the future I can aspire to follow in the shadow Minister’s footsteps as parliamentary beard wearer of the year.

Let me say a huge thank you to everyone involved in this process. We have sat for 16 sessions, including the evidence sessions and our line-by-line consideration—and haven’t they flown by? We have considered 53 new clauses and debated 80-odd clauses in total. May I thank you, Sir Graham, for your benign and benevolent chairmanship, as well as Sir Robert Syms, Ms Bardell, Dame Angela Eagle and Mrs Latham, who have also been in the Chair?

I thank my hon. Friend the Member for Newbury, who made what I think was her ministerial debut on a Bill Committee with great aplomb and attention to detail. I also thank my hon. Friend the Member for North Cornwall, who has been silent but omnipresent—although he almost broke his silence when I was very nearly late the other day.

I thank both shadow Ministers for their very thoughtful and reasonable points. We have had a constructive debate and there are many areas of common ground where we can work together. I am very grateful to them for that. In particular, I thank the hon. Member for Stockton North; I think this is probably the third or fourth Bill Committee we have worked on together, and my affection for him remains undimmed.

I thank the other Members of the Committee—those who have spoken, and perhaps even more so those who have not. Their contributions have all been very interesting and valued, and on some of the clauses we have had a very well-informed and informative debate. I thank the Committee Clerks; Hansard, who may at times have struggled to keep up with what we were saying; and the Doorkeepers who have superintended proceedings.

I thank the officials in the Ministry of Justice and the Home Office, as well as those in the Department for Transport and the Department for Environment, Food and Rural Affairs, who have worked for a very long time on this Bill, along with our private offices. As hon. Members can imagine, a huge amount of work goes into preparing a Bill like this one. Teams of dozens of people—perhaps even more than dozens—work over many months, and sometimes even years on some clauses. On behalf of hon. Members and the public, I put on the record our thanks to the officials in those Departments for the work they have done. Without their work, legislation like this would not be brought forward.

It remains only for me to say how much I look forward to discussing the Bill further when it returns to the Floor of the House on Report.

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.