Police, Crime, Sentencing and Courts Bill

Baroness Kennedy of Cradley Excerpts

Lords Hansard - part two & Committee stage
Monday 22nd November 2021 Lords Chamber

I have a particular query for the noble and learned Lord, Lord Falconer, on Amendment 284, which stresses that “‘conduct’ includes speech”. Obviously, as somebody who is always concerned about free speech, how does he envisage people not ultimately being criminalised and penalised for things they say? How does he balance that with the need to protect people’s freedom of speech?

[Baroness Kennedy of Cradley (Non-Afl)]

My Lords, I will speak in support of Amendments 292A and 292B. In doing so, I declare my interest as director of Generation Rent.

In my view, men advertising free rent for sex are not landlords, they are predators; they prey on vulnerable women and men with limited financial options. The fact that they use Covid as a marketing technique is abhorrent. They do not provide, or even attempt to provide, a safe, secure home; they deliberately take advantage of people. Although the law and CPS guidance in this area were updated a few years ago, they are still flawed and inadequate. Action against these predators needs to be enforced, investigated and prosecuted. The web platforms such as Craigslist, which is reportedly worth £7.5 billion, that facilitate this exploitation need to have action taken against them. They host these ads, yet they are ignored by law enforcement. Some of these predators may not be aware that they are breaking the law; however, I am sure that many are laughing at the law. They post their ads, which are open and explicit, and their criminal actions pass by unhindered because they know that they can post these ads without consequence.

Despite it being a criminal offence, as my noble and learned friend Lord Falconer of Thoroton said, there has only ever been one charge for sex for rent. That was in January this year, and it was because of the good work of journalists who passed their evidence to the police. Thanks to that and an investigation by ITV researchers in 2009, this then resulted in further criminal inquiries.

Of course, as director of Generation Rent, I would say that dealing with the criminal justice aspects of this issue is only one side of the problem. Hand in hand with these criminal justice changes there needs to be action to address the insecure housing situation and financial vulnerabilities of thousands of people in this country. We need a dramatic increase in social housing. It was reported last week that fewer than 6,000 social homes were built last year. We need more interventions to support renters in arrears. Rent arrears have tripled during the pandemic, and more renters than ever are now on universal credit. We need a proper and permanent end to private renters being able to be evicted for no reason with just two months’ notice. Hundreds of thousands of people are financially vulnerable and live at risk of homelessness and exploitation.

No one should ever be forced by coercion or circumstance to exchange sex for a home. The law needs to better protect renters from these predators, who seek to exploit them in return for a roof over their head. I very much support the amendments tabled by my noble friend and look forward to the Minister’s reply.

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

My Lords, I entirely support the motivation behind all the amendments in the group, comprehensively spoken to by the noble and learned Lord, Lord Falconer. I am, however, hesitant about the detail of the new offences proposed, and that goes further than the drafting—I fully accept that the noble and learned Lord suggested that there could be changes to the drafting. All five of the new offences have problems of breadth. That prevents me giving unqualified support to creating these new offences without considerable further research being undertaken.

I take the point made by the noble Baroness, Lady Fox of Buckley, that there is some danger to having a review of the spiking offence, but, in general, as distinct from the specific new offences, I am entirely unqualified in my support for the two amendments calling for urgent reviews of the law on exposure and on spiking. We need to consider carefully how the law in these two areas is working, the extent to which it needs reform and exactly what reform is needed. The review mechanism proposed in the amendments is comprehensive and sensible, and the amendments have the potential, if accepted, to lead to measured and evidence-based reform which will work well. It is that type of reform that we should all want.

The amendments creating each of the five new offences in this group respond to entirely justifiable views that something must be done, but I am not sure that the conditions on which criminal liability is imposed have been sufficiently reviewed and considered. The response I would like to see in each case from the Government is a promise to consider the new offences carefully and, with expert help, to see whether they can come up with offences that would be clearly defined, thoroughly drafted and delineated, and limited to behaviour that should properly be criminal, with all the pitfalls considered.

I fully agree with the noble Baroness, Lady Bennett of Manor Castle, that we have suffered in this Bill from trying to do everything in a rush. These amendments, while well intentioned and in the right spirit, fall into that danger.

We could take the creation of the new offence of non-fatal strangulation in the Domestic Abuse Act as a useful template. The proceedings on that provision in that Act also proved that there does not need to be undue delay in ensuring that a well-drafted provision reaches the statute book. Indeed, it might be possible to include new offences in all these areas, if only the Government would give a sensible allocation of more time for their consideration.

Perhaps I may give several examples of my concerns—they include those expressed by the noble and learned Lord, Lord Hope, but go further. On street harassment, in Amendment 284, I am concerned about the breadth of the proposed offence. The noble and learned Lord saw it as a virtue that it was not confined to sexual harassment. I do not agree with that, because “harassment” as defined is so broad that it criminalises behaviour that many people would not believe ought to be criminal.

I am also concerned about the use of the words “ought to know” in the context of harassment. When a defendant does not know that conduct amounts to harassment but is charged on the basis that he ought to have known it, is that properly a criminal offence? These are not drafting points; they reflect a concern about criminalising behaviour with a particular target—generally sexual harassment, as has been said—while included in the target are far more offenders than could properly have been envisaged.

On kerb-crawling, I am concerned that the definition in subsection (1) of the proposed new clause in Amendment 285 is far wider than anything that would normally be understood as kerb-crawling, which usually has to do with soliciting prostitution. This would cover any conduct amounting to harassment, after getting out of the vehicle, that is

“likely to cause annoyance, alarm, distress or nuisance”.

It seems to me that any incident of road rage could therefore be covered. The proposed offence is completely two-sided. The suggested penalty is revocation of a licence, or a fine. Why revocation of a licence? Incidents of road rage may be two-way—there may be blame on both sides. Why not a shorter ban, if the removal of a licence is indeed appropriate?

Amendment 292A concerns the offence of sex for rent and Amendment 292B concerns facilitating it. These amendments are directed at unscrupulous landlords and owners or providers of accommodation. Appalling behaviour, such as that outlined by the noble Baroness, Lady Kennedy of Cradley, would be covered by the proposed offence, but is that behaviour all that the proposed offence would cover? The definition includes the words “requiring or accepting” sexual relations. Is the provider of the accommodation always the only guilty party? Should such behaviour always be criminal? What about the landlady of the bed and breakfast who seduces the potential paying guest and offers him or her a free room in return? Is that always to be criminal? Even if it is, is that offence always triable on indictment only? Is that proportionate? I suggest not—it needs further thought. The business of sex for rent is disgraceful, in exactly the way expressed by the noble Baroness, Lady Kennedy, but we need to be very careful about what we introduce in response to the outrage that is felt as a result.

On Amendment 292T and sexually motivated homicide, of course one understands the motivation behind creating that new offence, but my concern is that, as drafted, the offence would criminalise behaviour where the perpetrator intended no harm at all to the person who died. It covers a person who kills another

“in the course of … sexual gratification”

and intends the act—in other words, has the intention to do whatever sexual act it is that led to the death of the person who dies. Would this not cover consensual acts desired or intended by both parties which, whether by accident or misfortune, led to the death of one of them? The noble and learned Lord said that this was there to outlaw the defence of rough sex. I understand that it is there for that purpose, but people have sex that gives them heart attacks—that is an extreme and, in a sense, absurd example, but there are a lot of sexual acts that lead to harm. You cannot criminalise them all just to deal with the defence of rough sex. Some of those acts would be unintentional and innocent.

My point is not to resist any change in the criminal law; it is simply to point out how careful we need to be in passing new legislation before we introduce new rafts of offences that go far too wide. That would be a restriction on freedom, not an improvement in the freedom of the citizen from new offences. I hope that the Government will respond to these amendments in a positive way, but with great care and in the spirit of compromise between the need for care and the need to criminalise behaviour that truly ought to be criminal.

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

I can see the noble and learned Lord’s eyebrows.

In 2019, the Crown Prosecution Service amended its guidance Prostitution and Exploitation of Prostitution to include specific reference to the potential availability of charges under the Sections 52 and 53 offences where there is evidence to support the existence of “sex for rent” arrangements, and—as the noble and learned Lord, Lord Falconer, and the noble Baroness, Lady Kennedy of Cradley, pointed out—in January this year the CPS authorised the first charge for “sex for rent” allegations under Section 52.

[Baroness Kennedy of Cradley (Non-Afl)]

If the offences were in place in 2003 and the guidance updated in 2019, why does the Minister believe that it is only this year that the first charge has been made for sex for rent?

[Baroness Williams of Trafford (Con)]

I do not disagree that it is only now being prosecuted. The point is that it is being prosecuted, and that is what I was trying to get over. The defendant in that case has pleaded guilty to two counts of inciting prostitution for gain, but as there is due to be a trial on an unrelated matter, it is probably not wise for me to comment further on this.

The noble Baroness talked about landlords. It is imperative that we ensure that landlords are not able to use their status and exploit any legal grey areas that could abuse their tenants or any other vulnerable people in society. The noble Lord, Lord Marks, also cited a number of examples. Local authorities and police forces are aware of these issues, and they will ensure that those convicted of these offences are banned from engaging in managing or letting residential accommodation.

Amendments 292M and 292R would require the Secretary of State to review the operation of two offences under the Sexual Offences Act 2003: namely, those of “exposure” and “administering a substance with intent”. As the noble and learned Lord, Lord Falconer, has explained, both amendments are in response to recent events. I appreciate the issues that the noble and learned Lord has raised, but I do not think that it is a requirement to put into primary legislation. I am sure he will remember from his tenure as Secretary of State for Justice that the Ministry of Justice, together with the Home Office, keeps the operation of the criminal law under review, and if there are problems they will act where necessary.

I am not sure whether it was the noble Baroness, Lady Fox, or the noble Lord, Lord Marks, who pointed out that we need to make legislation following full investigation of the facts and the consequences of making new laws, but we will continue to review the law in these areas and to ensure that it is up to date and fully equipped to protect victims of exposure and, indeed, spiking.

In relation to exposure and the police response to allegations in respect of Sarah Everard’s killer, the Committee will be aware that the first part of the inquiry announced by the Home Secretary will examine the killer’s previous behaviour and will establish a comprehensive account of his conduct leading up to his conviction, as well as any opportunities missed. We will, of course, want to learn any lessons arising from this and other aspects of the inquiry.

The recent reports of spiking—adding substances to drinks and injecting victims with needles—are concerning, and I have every sympathy with victims and anyone who might feel unable to go out and enjoy a night out for fear that they might be targeted. Any spiking constitutes criminal conduct, and the necessary offences are on the statute book. As with any crime, it falls to the police to investigate and ensure that those responsible are dealt with in accordance with the law.

The police are, of course, operationally independent, and it would not be right for me to comment on specific instances and allegations at this time when there are ongoing investigations, but they are taking it very seriously and working at pace to gather intelligence and identify perpetrators. My right honourable friend the Home Secretary has already asked the National Police Chiefs’ Council to urgently review the extent and scale of the issue and is receiving regular updates from the police, as has been widely reported. This is being done using resources at local, regional and national level, including the National Crime Agency.

Finally, turning to Amendment 292T, we return to the issue of the so-called rough sex defence. Noble Lords will remember the extensive debates on this topic during the passage of the now Domestic Abuse Act 2021. In that Act, the Government responded to concerns from the public and from across the House that defendants, invariably men, argued that the death of a person, invariably a woman, was caused by “rough sex gone wrong”.