Police, Crime, Sentencing and Courts Bill

Baroness Massey of Darwen Excerpts

2nd reading
Tuesday 14th September 2021 Lords Chamber

[Baroness Massey of Darwen (Lab)]

My Lords, as has been said, this is a vast Bill. I cannot remember receiving so many briefings and analyses from so many different organisations—from human rights organisations and those concerned about the abuse of women and children to local government and medical organisations, including the GMC.

There is support for some aspects of the Bill but also a great deal of criticism, with fears that certain measures are untenable and unworkable. I shall discuss some of those today in the context of the deliberations on the Bill of the Joint Committee on Human Rights, of which I am a member, as is my noble and very good friend Lord Dubs. I shall reinforce some of his comments.

The committee scrutinised the Bill, discussing the content of each part carefully and holding inquiries, including on mothers in prison and the right to family life, the criminalisation of unauthorised encampments, and public order issues. Tomorrow we will be examining our draft report on the sentencing and remand of children, which is of particular interest to me. For each session, we engaged with experts on the issues raised in the Bill. I praise and thank the staff of our amazing secretariat for their expertise and hard work, and also our witnesses for their often passionate comments about the Bill and their desire to protect and enhance the rights of those who will be affected by its outcomes.

I will simply make a few general comments on some sections of the Bill. The Joint Committee on Human Rights will, of course, be tabling amendments. First, on the rights of children whose mothers are in prison: the right to family life is enshrined in Article 8 of the European Convention on Human Rights and in three articles of the UN Convention on the Rights of the Child, involving non-discrimination, the best interests of the child, respect for the views of the child and children deprived of a family environment. The committee has concerns about all of these issues, especially about the welfare of the child, sentencing and data collection on children of prisoners.

We are also worried about the right to engage in peaceful protest and freedom of assembly, described so graphically by my noble friend Lord Dubs. The Joint Committee on Human Rights considered that issues such as conditions on the noise produced by processions are not proportionate and that a regulation-making power for the Secretary of State to clarify the meanings of disruption by statutory instrument is unacceptable. The committee was not convinced that the case for unlimited conditions on assemblies has been made. A loophole in the Bill increases the risk of peaceful protesters being arrested or prosecuted for innocent mistakes. The Bill does not include references to the right to freedom of expression; the committee proposes an extra statutory protection for the right to protest.

On Part 4 of the Bill, the committee considered that the human rights concerns of Gypsy, Roma and Traveller people were about criminalisation with regard to residence and having places to go, well described by my noble friend Lady Whitaker. We considered that the Government may be liable to use criminal law to address what is essentially a planning issue, as others have said. The language of the parts of the Bill describing the acts of Gypsy, Roma and Traveller people allows for prejudice and discrimination. Landowners have rights, and the provision of more authorised sites would benefit landowners who are concerned about the current situation. The police, too, have expressed discomfort about this part of the Bill.



As I said earlier, the committee will tomorrow consider the draft report on Parts 7 and 8, on sentencing and the remand of children and young people. Its concerns already reflect those of organisations and individuals who have for years shared grave concerns and misgivings about the sentencing of young people. The UN Convention on the Rights of the Child articles are clear that every child should be treated

“in a manner which takes into account the needs of persons of his or her age”,

and that the detention of a child should

“be used only as a measure of last resort and for the shortest appropriate period of time.”

The impact on the often deprived and vulnerable children who end up in the criminal justice system can be devastating. Ethnic disproportionality is seen at many stages of the youth justice system. It has been pointed out by many people that, although the UK has come a long way in protecting children, the fact that the articles of the UNCRC are not incorporated into UK law—although Wales and Scotland have made progress in doing so—has serious implications for the possibility of challenge in a UK court.

The issues I have briefly mentioned clearly need expansion and consideration in Committee. I am confident that your Lordships’ House will do this with its usual skill and thoroughness.

Police, Crime, Sentencing and Courts Bill

Baroness Massey of Darwen Excerpts

Lords Hansard - part one & Committee stage
Monday 1st November 2021 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

My Lords, it is a pleasure and a privilege to follow the right reverend Prelate. My name comes after hers on this amendment, and I strongly support what she has said. This is a very important set of amendments and I really hope the Government will take the opportunity that they give. The right reverend Prelate is not saying that those who have primary caring responsibility, or where an unborn child is involved, would get a free pass in relation to the sentencing regime or the bail regime. She is saying, with these carefully thought-out amendments, that there have to be proper arrangements for the courts to take these matters into account and recognise that they are a significant factor in many cases in determining a sentence.

If I could just take the Committee through these amendments, Amendment 110 says that where a court is considering whether to grant bail to somebody—that is, somebody who is not convicted of any criminal offence—they should have regard to the impact of not granting bail on a child for whom the defendant is the primary carer, or an unborn child, and that the court should presume, subject to victim impact or other relevant considerations, that it is in the best interests of the child or unborn child for bail to be granted. The right reverend Prelate is saying, “Weight the scales in favour of granting bail where there is a child for whom the defendant is the primary carer, or there is an unborn child.” That is sensible and should be the approach anyway.

Coming to the right reverend Prelate’s four other amendments, Amendment 215, which comes after Clause 131, says that the court should be under an obligation, through pre-sentencing inquiries, to discover whether the defendant is a primary carer for a child. That is obviously sensible, and no court would want to be in ignorance of that should it be sentencing somebody who is a primary carer. Amendment 216 says that where the defendant is a primary carer, the court must give reasons as to how it has dealt with the issue of primary caring. Again, that seems to be common sense. Amendment 217 says that where a court is considering imposing a custodial sentence on a primary carer or a pregnant woman, it must consider the impact of a custodial sentence on the child or unborn child and presume it will be detrimental to them. Amendment 218 would make sure that proper data is collected so that the criminal justice system is aware of the extent to which primary carers are imprisoned.

These amendments would mean that the interests of the child of which the defendant is the primary carer, or an unborn child, have to be explicitly considered and they are a weight—in many cases, a very considerable weight—in the scales. If we put these amendments into the Bail Act 1976 or the Sentencing Act 2020, which is where the right reverend Prelate is proposing they go, it will have an impact on sentencing. It is not enough, and it is a complacent view, as the Human Rights Committee found, to say, “Don’t worry; the judge has already taken it into account, it is referred to in the sentencing guidelines.” The evidence before the Human Rights Committee is that that was not the case. Put it into the Sentencing Act, as these amendments propose, and we will find that it then becomes a much harder thing for a court to avoid; it should be thinking of the rights of the child of which the defendant is the primary carer, or an unborn child. This is a significant opportunity for the Committee to make this Bill better, and I strongly support the right reverend Prelate.

[Baroness Massey of Darwen (Lab)]

My Lords, the amendments in this group are about ensuring the best interests and welfare of the child. We must remember that children are those under 18, not just little ones. The arguments have been admirably set out by the right reverend Prelate the Bishop of Gloucester and my noble and learned friend Lord Falconer. It is an honour to follow them both.

Police, Crime, Sentencing and Courts Bill

Baroness Massey of Darwen Excerpts

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

Moved by

[Baroness Massey of Darwen]

191: Clause 101, page 86, line 14, leave out from “committed” to “the court” on line 15 and insert—
“(i) by a person aged 16 or 17; or(ii) by a person aged 18 or over before the day on which section 101 of the Police, Crime, Sentencing and Courts Act 2021 came into force,”Member’s explanatory statement
This amendment ensures that no children are affected by the changes to mandatory minimum sentences in Clause 101.

--- Later in debate ---

[Baroness Massey of Darwen (Lab)]

My Lords, I shall speak to amendments of various kinds in this group, all related to youth justice. I am grateful to the secretariat of the Joint Committee on Human Rights, of which my noble friend Lord Dubs and I are members. We have discussed the Bill at great length, interviewed people with expertise on each clause and, as noble Lords are aware, prepared relevant reports. It has been a heavy load on our secretariat and I am grateful for their dedicated work. I am also grateful to the Youth Justice Board, the Children’s Rights Alliance, the Youth Justice Legal Centre and other children’s organisations for their contributions.

Amendments 191 to 194 in Clause 101 would ensure that no children were affected by the changes to mandatory minimum sentences in Clause 101, based on paragraphs 17 to 27 of the JCHR report. Clause 101 will allow a court to diverge from imposing a minimum custodial sentence for certain crimes, including crimes involving weapons committed by those aged 16 or 17, only where there were exceptional circumstances. This increase in the limitation on judicial discretion conflicts with the need for sentencing decisions to be individualised and for the welfare of the child to be a primary consideration. Custody for children, as has been stated in many cases, must remain a measure of last resort. Witnesses told the JCHR that limiting judicial discretion was inherently incompatible with the best-interests principle, the legal duty that the best interests of the child must be a primary consideration in any action by a state body, including a court. These principles reflect international standards and are a fundamental protection for the rights of the child.

This set of amendments would amend Clause 101 so that no children would be affected by its provisions. We have heard about the difficult circumstances of many children who interact with the criminal justice system, many of whom have complex needs that should be appropriately considered in sentences. The Bill limits the ability for such consideration by limiting judicial discretion at a time when there is a growing awareness of child criminal exploitation.

The amendment to leave out Clause 103 is based on paragraphs 76 to 82 in parts 7 and 8 of the JCHR report. Clause 103 would make it possible for judges to impose whole-life orders on offenders aged 18 to 20 in exceptionally serious circumstances. Sentences giving offenders no possibility of rehabilitation, and no prospect of release if that rehabilitation was achieved, would breach Article 3 of the European Convention on Human Rights. While it has concluded that whole-life orders for offenders aged 21 and over do not violate Article 3 of the ECHR, the JCHR is concerned about the implication of extending these sentences to offenders aged 18 to 20.

The courts and the Justice Committee have accepted that turning 18 is not a cliff edge. Young offenders aged between 18 and 20 are still maturing and have significant potential to change. Extending to this age group a sentence that makes the prospect of these offenders ever being released unlikely comes perilously close to the Article 3 threshold. It also runs counter to positive recent recognition of the need to treat young adult offenders as a category distinct from old offenders. This amendment would ensure that the minimum age for imposing a whole-life sentence or order does not drop below 21.

Amendments 198 to 201 to Clause 104, which would remove any tariff starting points above the current 12 years, are based on paragraphs 28 to 39 of the JCHR report. Clause 104 introduces a range of starting points for tariffs for children given DHMP sentences. When setting the tariff period, the court must first allocate a starting point and then consider any aggravating or mitigating factors—plus the effect of the defendant’s previous convictions, any guilty plea and whether the offence was committed on bail.

Currently, the starting point for the courts when setting the tariff is 12 years for children of all ages. The Bill proposes a change to this starting point, depending on the age of the child. The changes would more closely align the starting points for older children with the equivalent offences for adults, while reducing them for a small number of younger children.

Life sentences for children have been criticised by the Committee on the Rights of the Child, whose interpretation of the UNCRC, while not legally binding, is authoritative. Increasing the length of time that children must spend in custody before they can be considered for release can be seen only as making DHMP even less aligned to the rights in the UNCRC, which the UK ratified in 1992. Scotland and Wales are looking at how the convention might be incorporated into law. I am not sure where they are with this—perhaps the Minister will know more.

The courts already have discretion to consider the different developmental stages of children and reflect this in the tariffs that they hand down for DHMP. Mandating the courts in legislation to treat older and younger children differently focuses too much on age and not enough on maturity or circumstances. It brings tariffs for older children so close to those faced by adults that the distinction between a child and an adult risks being lost. However, the JCHR accepts the imposition of shorter tariff periods for the youngest offenders as a step towards the recommendations of the UN Convention on the Rights of the Child. These amendments remove any tariff starting points above the current 12 years but retain the imposition of shorter tariff periods for the youngest offenders.

Amendments 202 and 203 to Clause 105 return to permitting the possibility of a reduction of the tariff at the halfway stage and beyond for those who have committed relevant crimes as children, based on paragraphs 40 to 45 of the JCHR report. Individuals detained at Her Majesty’s pleasure may apply for their tariffs to be reviewed. The policy was changed in February 2021 so that those sentenced when over 18 would no longer qualify for any review of their tariff. Clause 105 puts this into statute.

The age of criminal responsibility is 10 in England, Wales and Northern Ireland and eight in Scotland. Therefore, it is theoretically possible, although it would be exceedingly rare, for someone to commit a murder, be given a DHMP sentence and still be under 18 two years after the halfway point of their tariff, so as to qualify for additional review. Accordingly, the JCHR was told that experts could not imagine a circumstance where someone would qualify for the additional review under this new provision. The effect of this clause is therefore to reduce the frequency of reviews of minimum terms and all but remove the possibility of a review beyond the halfway point. This should not happen.

The Government should seek to identify changes in the process of the DHMP tariff reviews so that they can lessen the distress caused to the families of victims. A child who commits an offence was still a child when they did so, even if they have reached the age of 18 while awaiting sentence or in custody. DHMP sentences should remain under continual review.

--- Later in debate ---

For the reasons I have set out, I hope the noble Baroness will be content to withdraw her amendment.

[Baroness Massey of Darwen (Lab)]

My Lords, I thank the Minister for his response. I did not quite realise it would end up in a dispute about the semantics. I am not a lawyer, and I think the law should be clear; I think I know the difference between “particular” and “exceptional”, but I will not go there again today. I thank noble Lords for their support for the amendments and the incisive, perceptive comments they have made.

I go back to my earlier premise that we must remember that, under the UN Convention on the Rights of the Child, children are those under 18, not 16. Everything that has been said by colleagues today expresses concern about the treatment of children in our youth justice system.

This has been a concern of the UN Committee on the Rights of the Child for years. As I said, it will be reporting back again next year on how we treat our children in the youth justice system. I hope that it finds something more acceptable than what it has in the past. By amending this Bill, we could possibly move a step forward on that issue.

The issue, for me, is that this is about children’s rights, and we should really consider those. I noted the comments of several colleagues. The noble Lord, Lord German, brought up the important issue of who is in the system and how black and minority-ethnic children, especially boys, are overrepresented in the system. We should think about that carefully.

The Government speak about levelling up in society, but I think the strategy set out in much of this Bill will do just the opposite. I will of course read carefully the comments of the Minister. I am afraid that I cannot stay for his later comments on a different group, but I will also read those carefully.

We must remember that children do not arrive fully formed at the age of 16—or any age, for that matter. We have recently been presented with research on the brains of adolescents and children which comes up with some surprising examples of how the brain does not in fact mature until over the age of 18, certainly, and that children should be treated as children. This provides unequal effects on children.

As has been said in the debate today, children have been affected by Covid and by the developmental health issues it brought about, as well as by the effects of delays on sentencing. All in all, I do not think that this is a very happy story as far as children are concerned.

I will need to consult other colleagues who have spoken today and respond to those organisations and individuals who have been so important in giving advice on these amendments to the Bill. Youth justice is such an important issue, which I feel we must push further on Report. I will not respond to all the Minister’s points today, because that would take a long time; I may wish to have a discussion with him, if he will consent, about some of these important issues. I beg leave to withdraw the amendment.

Amendment 191 withdrawn.