Offensive Weapons Bill

Baroness Williams of Trafford Excerpts

Committee: 3rd sitting (Hansard): House of Lords
Wednesday 6th February 2019 Grand Committee

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

I thank the noble Lord for explaining his amendment, which he went through at Second Reading. I cannot say that I disagree with the sentiment behind it, because we all know of cases where people have been threatened with fake acid. I also remember the spate of fake gun attacks a few years ago. When the person states that the substance is corrosive and it is not, that adds to the victim’s distress—there is absolutely no doubt about it—and such things cannot be tolerated. But as my noble and learned friend Lord Garnier and the noble Lord, Lord Paddick, pointed out, criminal offences are already available that allow such fake acid attacks to be dealt with. Perhaps I should outline some of them.

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Moved by

[Baroness Williams of Trafford]

73A: After Clause 31, insert the following new Clause—
“PART 5KNIFE CRIME PREVENTION ORDERSKnife crime prevention orders made otherwise than on convictionKnife crime prevention order made otherwise than on conviction
(1) A court may make a knife crime prevention order under this section in respect of a person aged 12 or over (the “defendant”) if the following conditions are met.(2) The first condition is that a person has, by complaint to the court, applied for a knife crime prevention order under this section in accordance with section (Requirements for application for order under section (Knife crime prevention order made otherwise than on conviction)).(3) The second condition is that the court is satisfied on the balance of probabilities that, on at least two occasions in the relevant period, the defendant had a bladed article with them without good reason or lawful authority—(a) in a public place in England and Wales,(b) on school premises, or(c) on further education premises.(4) In subsection (3) “the relevant period” means the period of two years ending with the day on which the order is made; but an event may be taken into account for the purposes of that subsection only if it occurred after the coming into force of this section.(5) Without prejudice to the generality of subsection (3), a person has good reason for having a bladed article with them in a place mentioned in that subsection if the person has the article with them in that place—(a) for use at work,(b) for educational purposes,(c) for religious reasons, or(d) as part of any national costume.(6) The third condition is that the court thinks that it is necessary to make the order—(a) to protect the public in England and Wales from the risk of harm involving a bladed article,(b) to protect any particular members of the public in England and Wales (including the defendant) from such risk, or(c) to prevent the defendant from committing an offence involving a bladed article.(7) A knife crime prevention order under this section is an order which, for a purpose mentioned in subsection (6)—(a) requires the defendant to do anything described in the order;(b) prohibits the defendant from doing anything described in the order.(8) See also—(a) section (Provisions of knife crime prevention order) (which makes further provision about the requirements and prohibitions which may be imposed by a knife crime prevention order under this section),(b) section (Requirements included in knife crime prevention order etc) (which makes further provision about the inclusion of requirements in a knife crime prevention order under this section), and(c) section (Duration of knife crime prevention order etc) (which makes provision about the duration of a knife crime prevention order under this section).(9) Section 127 of the Magistrates’ Courts Act 1980 (time limits) does not apply to a complaint under this section. (10) In this section—“court”—(a) in the case of a defendant who is under the age of 18, means a magistrates’ court which is a youth court, and(b) in any other case, means a magistrates’ court which is not a youth court;“further education premises” means land used solely for the purposes of—(a) an institution within the further education sector (within the meaning of section 91 of the Further and Higher Education Act 1992), or(b) a 16 to 19 Academy (within the meaning of section 1B of the Academies Act 2010),excluding any land occupied solely as a dwelling by a person employed at the institution or the 16 to 19 Academy;“public place” includes any place to which, at the time in question, the public have or are permitted access, whether on payment or otherwise;“school premises” means any land used for the purposes of a school, excluding any land occupied solely as a dwelling by a person employed at the school; and “school” has the meaning given by section 4 of the Education Act 1996.”Member’s explanatory statement
This Clause and the other amendments of the Minister to insert new Clauses after Clause 31 would make provision for knife crime prevention orders and interim knife crime prevention orders imposing requirements and prohibitions on defendants and subjecting them to certain notification requirements. The proposal is that the Clauses should become Part 5 of the Bill and the Bill should be divided into Parts when it is reprinted.

[Baroness Williams of Trafford]

My Lords, the new clauses to be inserted into the Bill by Amendments 73A to 73U introduce knife crime prevention orders. These new civil preventative orders will provide the police with the powers they need to more effectively manage people engaged, or at risk of engaging, in knife crime and help steer them away from crime.

As noble Lords in the Committee will agree, knife crime is devastating for victims, their families and for our communities. We must do all that we can to combat this epidemic. The latest police recorded crime figures, published by the Office for National Statistics in January for the year ending September 2018, show that there were 39,818 knife-related offences—an 8% increase compared with the previous year. Noble Lords will not have failed to notice the headlines in the Evening Standard on Monday.

The number of homicides where a knife or sharp instrument was used has increased by 10% in the last year to 276 offences. Of all recorded homicides in the latest data, over four in 10 involved a knife or sharp instrument. That proportion is higher than the previous year when the figure was 37%. Police-recorded offences involving the,

“possession of an article with a blade or point” ,

rose by 18% to 19,644 in the year ending September 2018. That rise is consistent with increases seen over the last five years and is the highest figure since the series began in the year ending March 2009.

The total number of homicides in London in 2018 was 134. The Metropolitan Police had the largest volume increase, accounting for 35% of the total increase. In 2017, there were a total of 116 homicides.

It is vital that the police have the powers they need to prevent knife crime and protect the public from the devastating effects of violent crime on our streets. It is already too late when we prosecute young people for knife crime. The police have asked for a new order which will help them to manage those at risk of knife crime in their communities.

Knife crime prevention orders will provide the police with the powers they need to steer people away from knife crime, where there is evidence that they carry a knife. The orders are aimed at those young people most at risk of engaging in knife crime, people the police call “habitual knife carriers” of any age, and those who have been convicted of a violent offence involving knives. Their simple purpose is to help protect the public, and to help respondents leave a dangerous lifestyle involving knife-related crime. In the case of young people, the police may have intelligence that a young person routinely carries a knife but, for a variety of reasons, they have been unable to charge them with a possession offence. Before risky behaviour escalates, a KCPO could be in place to divert a person away from a life of prolific offending.

People whom the police deem to be habitual knife carriers could also benefit from KCPOs. These are people who may have previous convictions for knife crime, or on whom the police have intelligence that they regularly carry knives. The KCPO would enable the police to manage the risk of future offending. This is the cohort that the police see as their main target for these orders. It is estimated that there are some 3,000 habitual knife carriers across England and Wales. The orders will enable the courts to place restrictions on individuals such as curfews and geographical restrictions, but also requirements such as engaging in positive interventions. KCPOs are not a punishment, but a means to support the individual who is subject to an order to stay away from crime.

It may be helpful if I explain how the order will work. KCPOs are available on application and on conviction. An application for a KCPO can be made by a relevant chief police officer to a magistrates’ court or, in the case of young people, the youth court. A court dealing with an application may make a KCPO only if two conditions are met. The first is that the court is satisfied to the civil standard—on the balance of probabilities—that the defendant had a bladed article, without good reason, in a public place or education premises, on at least two occasions in the preceding two years. The second condition is that the court considers the order necessary to protect the public or prevent the defendant committing an offence. An application can be made with or without notice, but it will be made without notice only on an exceptional basis. If an application is made without notice to the defendant, the court may only make an interim order, which will take effect on service and will last until a full hearing takes place.

A KCPO is also available on conviction following an application from the prosecution, and where two conditions are met. The first condition is that the defendant is convicted of a relevant offence. This means a violent offence, or an offence where a bladed article was used by the defendant or another in the commission of the offence, or the defendant or another had a bladed article with them when the offence was committed. The second condition is, again, that the court considers the order necessary to protect the public or prevent the defendant committing an offence.

A KCPO may require a defendant to do anything described in the order, and/or prohibit the defendant from doing anything described in the order. The KCPO can include any reasonable prohibition or requirement which the court is satisfied is necessary, proportionate and enforceable. A KCPO which imposes a requirement must specify a person who is responsible for supervising compliance with the requirement. For instance, if the requirement is attendance of a knife awareness intervention, the person designated to supervise compliance may be the youth worker providing the intervention.

KCPOs will have a maximum duration of two years and must be reviewed by the courts after 12 months. KCPOs issued to under-18s are expected to be subject to more regular reviews. There are provisions for variation, renewal or discharge of KCPOs on application by the defendant or the police. There are also provisions for appeal against the making of the order. A breach of the order without reasonable excuse is a criminal offence subject to a maximum penalty of two years’ imprisonment.

KCPOs are closing a gap in the law that has hindered the police in taking an active rather than a reactive approach to diverting people away from knife crime and managing the risk of knife crime offending. They provide an opportunity to take a proactive and preventive approach, re-engaging with them at an early stage and helping to protect those most at risk of using knives and, of course, of falling victim to them.

There are other civil orders available, such as gang injunctions and criminal behaviour orders, but not all individuals in the targeted cohort are gang members. Criminal behaviour orders could be used in some cases, but such orders are available only when a court is sentencing a person for an offence. It is important that the police have the right tools for the right situations and can make use of them.

Of course, the police have a range of powers to deal with knife crime, including the existing offence of possessing a bladed article in public without good reason, and stop and search powers under the Police and Criminal Evidence Act 1984. However, given the unacceptable scale of knife crime, it is important that the police have a broad sweep of possible powers to use as circumstances dictate. KCPOs will be a valuable addition to the tools available to the police to disrupt harmful behaviours, while avoiding the premature criminalisation of individuals. We expect them to be targeted at a relatively small but high-risk cohort.

This Government are determined to do all that we can to protect the public and keep people safe. This is why we are redoubling our efforts to end this senseless crime. The introduction of KCPOs has been welcomed by the National Police Chiefs Council and the Association of Police and Crime Commissioners. On behalf of the NPCC, Deputy Assistant Commissioner Duncan Bell said:

“The introduction of knife crime prevention orders will provide us with further means to help deter young people from becoming involved in knife possession and knife crime”,


while West Yorkshire’s Labour PCC has said that he fully supports the new knife crime prevention orders.

I commend the noble Lord, Lord Tunnicliffe, who is not in his place, for his prescience in tabling Amendment 77, which also calls for the introduction of KCPOs. I hope one of the noble Lords on the Labour Front Bench will agree that we should grasp the opportunity provided by the Bill to legislate now for KCPOs, so that we can do everything in our power to stop the tragic loss of life and serious injury caused by knife crime that is all too evident on our streets. I beg to move.

[Lord Paddick]

My Lords, I am grateful to the Minister for meeting me to discuss these amendments before today’s debate. It will come as no surprise to her that we vehemently oppose them and will object, should she insist on them at this stage.

Noble Lords will recall ASBOs, anti-social behaviour orders, introduced by the then Labour Government in the face of an epidemic of anti-social behaviour. They were opposed for many reasons. They were an order that could be made on the basis of the balance of probabilities against very young children with no previous convictions, yet the breach of one of those orders was a criminal offence with a custodial sentence attached. In effect, the criminal burden of proof—beyond reasonable doubt—was circumvented by making the order subject only to the civil burden of proof, while a breach of the order resulted in a criminal conviction. As a result, hundreds of young people acquired a criminal record through that unfair and unreasonable route. This was rightly seen as disproportionate, and the subsequent coalition Government—in a move championed by the then Home Secretary, Theresa May—removed ASBOs from the statute book.

Other reasons for scrapping ASBOs included their ineffectiveness in curbing anti-social behaviour, the high rate of breach of the conditions of the orders, the difficulty in monitoring compliance and the resources required to ensure their enforcement. In some communities, having an ASBO was seen as a badge of honour, and peers looked up to someone if he had acquired one.

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[The Earl of Caithness (Con)]

My Lords, following what the noble Lord just said, I wonder whether my noble friend would consider this. If the amendment is likely to be defeated, she could withdraw it and return to Committee as the first part of Report—I remember doing that with a Home Office Bill—so that given the concerns around the Committee, we could have a proper Committee stage and then very soon after that, come back on Report. In Committee, we can talk twice, and that should give the noble Lord, Lord Paddick, a chance to put down something constructive rather than the constant destructive arguments.

[Baroness Williams of Trafford]

My Lords, I have not found the comments destructive, although I thank my noble friend for the points that he made. I will not press the government amendments today. I take on board completely the point made by the noble Lord, Lord Kennedy, about the timing of the amendments. We will bring the amendments back on Report when again we will have a full chance to discuss them. The practice of noble Lords speaking only once on Report has fallen slightly by the wayside because noble Lords seem to speak several times in Committee and on Report.

To sum up today’s debate, we all seek the same end, but the means by which we would get there differ. I thank the noble Lord, Lord Hogan-Howe, at the outset for clarifying a number of points that I did not know the answer to. He has saved me having to write to the Committee. I also thank my noble friend Lady Newlove for the very real-life experience with which she speaks and which we never fail to be moved by.

It is clear from the debate that some of the support for KCPOs is qualified. The noble Lord, Lord Paddick—and the theme was carried on by other noble Lords—said that KCPOs seek to criminalise children. As the noble Lord, Lord Hogan-Howe, said, their aim is quite the reverse. They are to prevent young people getting into criminality.

[Lord Paddick]

I never suggested that the aim of the orders is to criminalise young people. I said that young people being criminalised is the inevitable outcome of the orders.

[Baroness Williams of Trafford]

My words were that the noble Lord said the orders risk criminalising children, rather than having the aim of criminalising children. The aim is to prevent that. As the noble Lord, Lord Ponsonby, and the right reverend Prelate the Bishop of Newcastle said, young people are often the victims. Other noble Lords made the same point. We have a Catch-22 situation where they are both victims and perpetrators.

The noble Lord, Lord Ponsonby, questioned the benefits of KCPOs, given his experience. Their aim is to have a preventive effect. Far from fast-tracking young people into a criminal record, the aim is quite the reverse. The orders are an alternative to prosecution. The imposition of restrictions aims to divert young people away from the criminal justice system. Of course, where a defendant is found not guilty of a violent offence, the option to give a KCPO remains open to the police, further keeping the young person out of the criminal justice system.

The noble Baroness, Lady Meacher, asked a very good question: what about the adults? Adults can be part and parcel of the problem, but can also be part of the solution. She is absolutely right that we must not forget the role of adults in all this.

At the outset, I reiterate that KCPOs are not punitive in nature. They are an additional tool for the police to help steer those subject to the orders away from knife crime. They are aimed at young people at risk of engaging in knife crime, at habitual knife carriers of any age and at those who have been convicted of a violent or knife-related offence. The Government are very concerned by the increase in knife crime, as other noble Lords have articulated. We are determined to do all we can to address it. We have set out a comprehensive programme of action in our Serious Violence Strategy to tackle knife crime and prevent young people being drawn into crime and violence, but we know that we need to do more. That is why we listened when the police—those on the front line of such activity, who are best-placed to know the nature of the problem and the profile of the people who carry knives—told us that they need additional powers to deal more effectively with people being drawn into knife crime.

The noble Lord, Lord Paddick, talked about the approach that the police might take when responding to a breach of a KCPO. Clearly, it would be for the police to decide what action to take where such a breach occurs. Similarly, it would be for the CPS to consider whether there is enough evidence against the defendant for a realistic prospect of conviction and whether it is in the public interest to prosecute them. The public interest will likely vary from case to case, taking into account factors such as the seriousness of the offence, the harm caused and the proportionality of prosecution in response. It has never been the rule that a prosecution will automatically take place where the evidential test is met, so prosecutors may advise on or authorise out-of-court disposals as an alternative to prosecution, which is not necessarily the end result. In addition, a person commits an offence and can be convicted only if a breach occurs without reasonable excuse. The maximum sentence is two years’ imprisonment. It would be for the courts to determine the appropriate sentence in the usual way in any given case, so two years is not necessarily the end result and a community sentence is an option, too.

Unfortunately, as we have seen from the press so often recently, an increasing number of young people carry knives. Some are as young as eight. Many come to the attention of the police after teachers or youth workers have already tried to deal with the problem without reporting the incident to the police, for fear that a young person would be criminalised. However, as we have all said today, by the time that young person is prosecuted it is too late. Furthermore, I am sure noble Lords will agree that prosecution of young children is not always the most appropriate response if they are found with a knife. We have had those discussions today. KCPOs will enable the police and others to address the underlying issues and steer those young people away from knife crime through positive interventions.

The amendments contain important safeguards to ensure that KCPOs are not used inappropriately against young people under 18. In particular, the amendments require the police to consult the relevant youth offending team before an order is made. Once made, an order must be reviewed by the courts after 12 months. The noble Lord, Lord Hogan-Howe, asked why 12 months was put in place. That is as a safeguard to ensure that a review is carried out. We fully expect the statutory guidance to provide for more regular reviews where a KCPO is issued to a person under the age of 18.

The noble Lord, Lord Paddick, asked why on orders made on application we have not adopted the approach applied to anti-social behaviour injunctions, where a breach is dealt with as a contempt of court rather than a criminal offence. In developing the KCPO, we considered that approach, but it is important to remember that we are dealing with individuals at risk of engaging in serious criminality, not simply those involved in anti-social behaviour, as debilitating as that can be for victims and communities. KCPOs will be used for individuals with a history of carrying a knife. Many will be habitual knife carriers, and we are clear that these orders will not be effective if those subject to a KCPO do not see that breaching the order would have serious consequences. They must include the possibility, at least, of a criminal prosecution and a custodial sentence on conviction. Other civil orders of this kind adopt the same approach, including sexual risk orders and serious crime prevention orders.

I am indebted to the noble Lord, Lord Hogan-Howe, for his invaluable contribution, which highlighted the operational need for these new orders. The noble Lord made a couple of very interesting suggestions: first, that the scope of KCPOs be extended to help tackle gun crime and the use of corrosives, and, secondly, on the use of electronic monitoring. Given the prevalence of knife crime, it is right that it should be the initial focus of the new orders but as we evaluate their effectiveness over time, we most certainly can explore whether they might have wider application. We can explore the possibility of adding an electronic monitoring requirement to these orders once they have bedded in.

The noble Lord asked about stop-and-search powers in relation to someone subject to a KCPO. We believe that the police already have adequate stop-and-search powers under PACE to monitor whether someone is carrying a knife. As he knows, if a police officer has reasonable suspicion that someone subject to a KCPO is carrying a knife, the officer can stop and search the individual under those existing powers. He also asked when the orders might start. The court may provide discretion that the order takes effect from release, when the defendant ceases to be subject to a custodial sentence, or if the defendant ceases to be on licence. It may take effect earlier while a defendant is on day release and subject to stringent conditions.

A number of noble Lords asked me about funding and tackling the issue locally. They will know, from statements I have made, of my right honourable friend the Home Secretary’s intention to make up to £970 million available to the police next year. On a more local level, we are providing £1.5 million in 2018-19 for the community fund, which has funded 68 projects, and £1 million in 2019-20 to help communities to tackle knife crime. The Committee will have heard earlier today about the youth endowment fund, which has £200 million over 10 years to build evidence for early intervention. It will focus on those most at risk of youth violence, including those displaying signs such as truancy, aggression and involvement in anti-social behaviour.

We can take into account many of the issues raised today when preparing the statutory guidance provided for under Amendment 73S, and as part of the pilot we intend to run in the Metropolitan Police district before implementing these orders across England and Wales. As the noble Lord, Lord Paddick, has signalled that he cannot support these amendments today I will of course withdraw them, with regret. However, the Committee can be assured that I will return to them at Report.

Amendment 73A withdrawn.