Police, Crime, Sentencing and Courts Bill

Baroness Williams of Trafford Excerpts

Lords Hansard - Part 2 & Lords Hansard - part two & Report stage
Monday 10th January 2022 Lords Chamber

Moved by

[Baroness Williams of Trafford]

97ZB: After Clause 165, insert the following new Clause—
“PART 11ADISREGARDS AND PARDONS FOR CERTAIN HISTORICAL OFFENCESDisregard of certain convictions or cautions
(1) The Protection of Freedoms Act 2012 is amended in accordance with subsections (2) to (10).(2) Section 92 (power of Secretary of State to disregard convictions or cautions) is amended in accordance with subsections (3) to (5).(3) In subsection (1) for the words from “under” to the end of paragraph (c) substitute “in circumstances where the conduct constituting the offence was sexual activity between persons of the same sex”.(4) In subsection (3)—(a) in paragraph (a)—(i) for the first “the” substitute “any”,(ii) for “conduct constituting the offence consented to it and” substitute “sexual activity”, and(iii) omit the second “and”, and(b) for paragraph (b) substitute—“(b) the offence has been repealed or, in the case of an offence at common law, abolished by enactment (whether or not it has been re-enacted or replaced), and(c) the sexual activity would not, if occurring in the same circumstances at the point of decision, constitute an offence.”(5) After subsection (6) insert—“(7) In this section “sexual activity” includes—(a) any physical or affectionate activity which is of a type characteristic of people involved in an intimate personal relationship, and(b) conduct intended to lead to sexual activity.”(6) In section 93(3) (applications to the Secretary of State), for the words from “the matters” to the end substitute “— (a) whether a conviction or caution is of a kind mentioned in section 92(1);(b) the matters mentioned in condition A in that section.”(7) In section 94 (procedure for decisions by the Secretary of State)—(a) in subsection (1)—(i) after “considering” insert “whether a conviction or caution is of a kind mentioned in section 92(1) or”, and(ii) for “section 92” substitute “that section”,(b) in subsection (2)—(i) after “deciding” insert “whether a conviction or caution is of a kind mentioned in section 92(1) or”, and(ii) for “section 92” substitute “that section”,(c) after subsection (2) insert—“(2A) If the Secretary of State refuses an application on the basis that the caution or conviction is not of a kind mentioned in section 92(1), the Secretary of State must—(a) record the decision in writing, and(b) give notice of it to the applicant.”(8) In section 99 (appeal against refusal to disregard convictions or cautions)—(a) in subsection (1)(a) after “Secretary of State” insert “refuses an application on the basis mentioned in section 94(2A) or”,(b) in subsection (3), for the words from “that it” to the end substitute “—(a) that the conviction or caution is of a kind mentioned in section 92(1), it must make an order to that effect;(b) that it appears as mentioned in condition A of that section, it must make an order to that effect.”, and(c) in subsection (5), after “subsection (3)” insert “(b)”.(9) In section 100(1) (advisers)—(a) for the second “Secretary of State” substitute “Secretary of State—(a) the caution or conviction is of a kind mentioned in section 92(1), or”,(b) the remaining text becomes paragraph (b), and(c) in that paragraph for “section 92” substitute “that section”.(10) In section 101—(a) in subsection (1)—(i) in paragraph (a) of the definition of “conviction”, after “proceedings” insert “(including anything that under section 376(1) and (2) of the Armed Forces Act 2006 is to be treated as a conviction for the purposes of that Act)”,(ii) at the end of the definition of “sentence” insert “(including anything that under section 376(1) and (3) of the Armed Forces Act 2006 is to be treated as a sentence for the purposes of that Act),”,(iii) at the end of paragraph (a) of the definition of “service disciplinary proceedings” omit “or”,(iv) after paragraph (b) of the definition of “service disciplinary proceedings” insert “, or(c) in respect of a service offence (whether or not before a court but excepting proceedings before a civilian court within the meaning of the Armed Forces Act 2006);and for the purposes of paragraph (c) “service offence” means a service offence within the meaning of the Armed Forces Act 2006, or an SDA offence within the meaning of the Armed Forces Act 2006 (Transitional Provisions etc) Order 2009 (SI 2009/1059).”, and(v) in the appropriate place insert—““enactment” includes an enactment contained in subordinate legislation (within the meaning of the Interpretation Act 1978),”,(b) omit subsections (3) and (4),(c) in subsection (5) for paragraphs (a) and (b) substitute “a reference to an inchoate or ancillary offence relating to the offence.”,(d) in subsection (6)—(i) for the first “or incitement” substitute “, incitement, encouraging or assisting”, and(ii) for the second “or incitement” substitute “, incitement, encouraging or assisting”,(e) after subsection (6) insert—“(6A) For the purposes of section 92, an inchoate or ancillary offence is to be treated as repealed or abolished to the extent that the offence to which it relates is repealed or abolished.(6B) A reference to an inchoate or ancillary offence in relation to an offence is a reference to an offence of—(a) attempting, conspiracy or incitement to commit the offence,(b) encouraging or assisting the commission of the offence, or(c) aiding, abetting, counselling or procuring the commission of the offence.(6C) For the purposes of section 92, an offence under an enactment mentioned in subsection (6D) is to be treated as repealed to the extent that the conduct constituting the offence under the enactment—(a) was punishable by reference to an offence under the law of England and Wales which has been repealed or abolished, or(b) if the conduct was not punishable by the law of England and Wales, was punishable by reference to equivalent conduct constituting an offence under the law of England and Wales which has been repealed or abolished.(6D) The enactments are—(a) section 45 of the Naval Discipline Act 1866,(b) section 41 of the Army Act 1881,(c) section 41 of the Air Force Act 1917,(d) section 70 of the Army Act 1955,(e) section 70 of the Air Force Act 1955,(f) section 42 of the Naval Discipline Act 1957, and(g) section 42 of the Armed Forces Act 2006.”, and(f) in subsection (7) for “(5) and (6)” substitute “(5), (6) and (6B)”.(11) Nothing in this section affects the disregard of a conviction or caution that was disregarded before this section comes into force.”Member’s explanatory statement
This new Clause would extend the scheme for disregarding convictions and cautions for historical offences that regulated sexual activity between people of the same sex.

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

My Lords, it really is a pleasure to introduce these government amendments to the House. In Committee, I gave a commitment that the Government would consider carefully the amendment tabled by my noble friend Lord Lexden and the noble Lord, Lord Cashman, on the extension of the disregards and pardons scheme for individuals convicted of same-sex sexual activity. They withdrew their amendment then, and I am delighted today to be able to bring forward these government amendments which, I am pleased to say, have their support. It has only taken six years, but we got here.

Amendments 97ZB and 97ZC draw heavily on the earlier amendments to this Bill and the Armed Forces Bill. I am very confident that they reflect the aim of the noble Lords’ proposals. The removal of cautions and convictions from official records is a serious matter, and Amendment 97ZB will ensure that any disregards will meet the established legal criteria to ensure that the Home Office does not inadvertently disregard cautions or convictions for activity that is still illegal today or that involved other still illegal activity. The purpose of the disregards and pardons scheme is to put right the wrongs of the past in which the actions of those attracted to the same sex were unjustly criminalised and lives were severely and negatively affected by having these cautions and convictions on their criminal records.

The current scheme is too narrow: it is largely focused on convictions for the now repealed offences of buggery and gross indecency between men. We recognise that there were a wider range of now repealed and abolished offences, both civilian and military, that were also used to unfairly caution or convict those attracted to the same sex specifically because of their sexuality. To ensure full coverage, Amendment 97ZB will provide for the extension of the scope of the scheme to cover all repealed statutory offences and all abolished common-law offences of this nature. The scheme is also being extended to all service offences, so general disciplinary offences that were used to prosecute those individuals attracted to the same sex will now be covered.

Amendment 97ZC separately extends the existing arrangements for pardons. Those who are granted a disregard will automatically be pardoned. We recognise that many people have now died, or sadly will die, without the opportunity to seek a disregard. The amendment therefore makes provision for posthumous pardons for those who die before 12 months have elapsed after the provisions come into force. Where an offence is repealed or abolished after the provision comes into force, it will also fall within the scope of the scheme. In those cases, provision is made for posthumous pardons for those who die before 12 months have elapsed after the repeal or abolishment.

I take this opportunity to thank my noble friend Lord Lexden and the noble Lord, Lord Cashman, for their continued hard work on this issue. It has taken, as I have said, six years. I also pay special tribute to Professor Paul Johnson of the University of Leeds, who, in addition to advising their Lordships, has also been unfailingly generous in sharing his expertise with officials. I hope these amendments will be the legislative answer that we have been working towards together. It is only by working together that we can achieve this type of change. I beg to move.

--- Later in debate ---

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I feel privileged to come in at the tail-end of this six-year campaign. I have to say I found it very moving listening to my noble friend Lord Cashman and the noble Lord, Lord Lexden, who does me the privilege of taking an interest in my family history. I have followed his campaign on this matter as well. I also note the points he made about the position in Northern Ireland. It has been a six-year campaign—to use the words of my noble friend—to wipe away the stain on history. It seems to me these amendments are doing this. I also join in the praises from the noble Lord, Lord Paddick, of the Minister, who appears to me, as a latecomer to this, to have been with the campaigners every step of the way.

[Baroness Williams of Trafford (Con)]

My Lords, I thank all noble Lords for their kind comments. It is lovely when unity breaks out in this House, particularly when that unity has been hard fought. On the union—I take my noble friend’s points about Northern Ireland—I will certainly relay those comments to the Minister for Justice. I would imagine that the publicity will start on commencement of the Bill and be published on GOV.UK. There has already been some great publicity on social media and elsewhere, so publicity is already under way.

Amendment 97ZB agreed.

Moved by

[Baroness Williams of Trafford]

97ZC: After Clause 165, insert the following new Clause—
“Pardons for certain convictions or cautions
(1) The Policing and Crime Act 2017 is amended in accordance with subsections (2) to (13).(2) Section 164 (posthumous pardons for convictions etc. of certain abolished offences) is amended in accordance with subsections (3) to (10). (3) Before subsection (1) insert—“(A1) Subsection (1) applies in relation to a person—(a) who was convicted of, or cautioned for, an offence in circumstances where the conduct constituting the offence was sexual activity between persons of the same sex, and(b) who died before the end of the period of twelve months beginning with—(i) the day on which section (Disregard of certain convictions or cautions) of the Police, Crime, Sentencing and Courts Act 2022 comes into force, or(ii) if later, the day on which the offence referred to in paragraph (a) became an abolished offence (see subsection (1A)).”(4) For subsection (1) substitute—“(1) The person is pardoned for the offence if—(a) any other person involved in the sexual activity was aged 16 or over, and(b) the offence has become an abolished offence.(1A) An offence becomes an abolished offence at the point at which conditions A and B are first met.(1B) Condition A is that the offence has been repealed or, in the case of an offence at common law, abolished by enactment (whether or not it was re-enacted or replaced).(1C) Condition B is that the sexual activity referred to in subsection (A1)(a) would not, if occurring in the same circumstances, constitute an offence.”(5) Omit subsections (2) to (6).(6) In subsection (7)—(a) for “subsection (8)” substitute “subsections (8) and (8A)”, and(b) at the end of paragraph (b) insert “(but as if the reference in subsections (6A) and (6C) to section 92 were a reference to this section)”.(7) In subsection (8) (as amended by section 19 of the Armed Forces Act 2021)—(a) omit paragraph (ba),(b) at the end of paragraph (c) omit “or”,(c) after paragraph (c) (but before paragraph (d) inserted by section 19(3)(d) of the Armed Forces Act 2021) insert—“(ca) the Mutiny Act 1878, the Marine Mutiny Act 1878, any Act previously in force corresponding to either of those Acts or any relevant Articles of War, or”.(8) After subsection (8) insert—“(8A) Section 101(6D) of the 2012 Act is to be read, in its application to this section by virtue of subsection (7) of this section, as if the enactments listed in that subsection included—(a) Article 2 of Section 20 of the Articles of War of 1749 (offences triable by courts martial outside Great Britain),(b) section 38 of the Naval Discipline Act 1860,(c) section 38 of the Naval Discipline Act 1861,(d) section 41 of the Naval Discipline Act 1864,(e) Article 93 of Section 2 of the Articles of War of 1876 (offences not specified in Marine Mutiny Act or Articles of War),(f) section 41 of the Army Discipline and Regulation Act 1879, and(g) any provision corresponding to the provision mentioned in paragraphs (a) or (e), contained in other relevant Articles of War.” (9) In subsection (10) (inserted by section 19 of the Armed Forces Act 2021) insert in the appropriate place—““sexual activity” includes—(a) any physical or affectionate activity which is of a type characteristic of people involved in an intimate personal relationship, and(b) conduct intended to lead to sexual activity.”(10) After subsection (10) insert—“(11) Subsection (1) does not apply in relation to an offence for which the person has previously been pardoned under this section or section 165.”(11) In section 165(1) (other pardons for convictions etc. of certain abolished offences) after “offence” insert “in the circumstances”.(12) Omit section 166 (power to provide disregards and pardons for additional abolished offences).(13) In section 167 (sections 164 to 166: supplementary)—(a) in the opening words of subsection (1) omit “, or under regulations under 166,”, and(b) in subsection (2)—(i) for “sections 164 to 166” substitute “section 164 or 165”, and(ii) omit “or regulations under section 166”.(14) Nothing in this section affects a pardon for a conviction or caution which took effect before this section comes into force.(15) In section 19 of the Armed Forces Act 2021 (posthumous pardons in relation to certain abolished offences), omit subsection (2) and paragraphs (b) and (c) of subsection (3).”Member’s explanatory statement
This new Clause would extend the scheme for posthumously pardoning people convicted of or cautioned for historical offences that regulated sexual activity between people of the same sex.

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

My Lords, I share noble Lords’ frustration that at a minute past midnight I am standing up to respond. I do not think anyone could accuse me of filibustering or frustrating any processes today. It was very unfortunate that we did not start this Report stage until nearly 4 pm because Members were discussing procedure. It is very frustrating that we are discussing such an important topic so late at night.

That said, I thank the noble Baroness, Lady Chakrabarti, for raising this incredibly important issue, and the noble Lord, Lord Carlile. I thank the noble Baroness, Lady O’Loan, for sharing the experiences of her time as chair of the Daniel Morgan inquiry. I again thank the noble Lord, Lord Carlile, my noble friend Lady Newlove, and the noble Baroness, Lady Chakrabarti, for the opportunity that I have had to discuss this issue with them. It is so important that Sarah’s family and the public understand how a serving police officer was able to commit such a senseless crime so that we can stop it ever happening again and restore confidence in our police forces. I think all noble Lords want that.

On 5 October, the Home Secretary announced her intention to launch a two-part inquiry into the circumstances surrounding Sarah’s murder. The first part of the inquiry will look at Sarah’s murderer and his tenure at the Metropolitan Police leading up to his conviction, as well as assessing any missed opportunities to hold him to account for his conduct. The second part of the inquiry will look at any specific issues raised by the first part, which is likely to include wider issues across policing, including, but not limited to, vetting practices, professional standards and discipline, and workforce behaviour.

This is the opportunity to look at any systemic flaws in vetting or issues around policing culture that were highlighted in the amendment. We expect that the separate inquiry established by the Metropolitan Police Commissioner, being led by the noble Baroness, Lady Casey, into the culture and standards of the force will feed into part two of the Home Office-established inquiry.

On the point raised by the noble Lord, Lord Coaker, about witnesses giving evidence, the police forces for which Sarah’s murderer worked will be witnesses to this inquiry, and we expect them all to comply with it. Since February 2020, when we amended the law, police officers have been under a duty to co-operate as witnesses with investigations, inquiries and formal proceedings under the revised standards of professional behaviour. Failure to do so could amount to misconduct and lead to disciplinary action—something which, during the Daniel Morgan inquiry, was unfortunately not available.

On 22 November, the Home Secretary announced that the chair of the inquiry would be the former Lord Advocate, the right honourable Dame Elish Angiolini QC. Following her appointment, the terms of reference of part 1 of the inquiry have been agreed with her, and they were published on GOV.UK this morning, as noble Lords have said.

The form of part 1 of the inquiry has been discussed with Dame Elish at length, and she agrees that a non-statutory inquiry is the best option to enable her to operate swiftly, allowing greater flexibility to gather evidence relating to Sarah’s killer’s policing career, without formal set-piece hearings. It is imperative for Sarah’s family and the public that we get answers as quickly as possible—I do not think that anyone demurs from that. This will enable Dame Elish to start part 2, looking at policing more broadly, in short order after the conclusion of part 1, which I know the amendment of the noble Baroness, Lady Chakrabarti, seeks to achieve.

Also agreed with Dame Elish is that, should she feel that she cannot fulfil the terms of reference operating on a non-statutory basis, and should official advice concur, it can be converted. I am not sure that the Sky News quote entirely reflects the Home Secretary’s words. That point about the conversion is set out in the terms of reference, and it is not only that: I can advise the House that, in coming to a decision on whether to convert the inquiry into a statutory inquiry under the Inquiries Act, the Home Secretary will be strongly guided by the views of Dame Elish. So, to quote the noble Lord, Lord Coaker, we are not saying, “No, we have already decided”. We have not. Under the Inquiries Act, the Home Secretary is required to consult the chair on any decision to convert the inquiry, and the chair’s views would be expected to hold considerable weight. I hope I have been able to satisfy noble Lords on that point.

I understand the noble Baroness’s point that confidence in the police among women, particularly younger women, has been rocked by Sarah’s murder and other cases that are coming to light—I share those views. This is analogous to the impact that the failings in relation to Stephen Lawrence’s tragic murder had on black communities. I understand how powerful it was for Sir William Macpherson to hold the Metropolitan Police to account in public over 20 years ago and I agree entirely that women deserve answers and, moreover, assurance that they are safe in the hands of the police.

I do not think, however, that we should be tying the hands of Dame Elish and the Home Secretary on the scope or nature of part 2 before part 1 has even started in earnest. It is important that these considerations can be informed by Dame Elish’s emerging findings from part 1; the work of the noble Baroness, Lady Casey; and the policing inspectorate’s thematic inspection of vetting and countercorruption. Only then can we ensure that part 2 looks at the critical issues for policing and does so in a way that allows those affected, including victims, to have their voices heard.

I reassure this House that the Home Secretary will consult Dame Elish on the scope of part 2 and the form that it should take to proceed efficiently, effectively and with the confidence of those whose trust in policing has been eroded. Specifically, Dame Elish’s view and official advice will form the basis of whether the Home Secretary will put part 2 on a statutory footing.

The noble Baroness, Lady Chakrabarti, has prayed in aid the experience of the noble Baroness, Lady O’Loan, with the Daniel Morgan inquiry but, since the evidence-gathering phase of that inquiry, we have—as I said earlier—introduced a duty of co-operation on police officers, which means that failure to co-operate with an inquiry or similar could now be a disciplinary matter, with dismissal being the ultimate sanction possible. There are now sanctions that were not available before.

Amendment 108 seeks to address legitimate concerns that individuals, particularly women and girls, may have at the prospect of being arrested or transported in a police vehicle by a lone officer. The noble Baroness is absolutely right to highlight how important it is that police officers use their powers of arrest legitimately and in line with statutory guidance, and to recognise how public confidence in the police has been shaken by the appalling circumstances of Sarah Everard’s murder. I understand the concerns raised by this case, and the Government have been very clear that they intend to take action as a result. However, the law does not take a detailed view on the way officers use their powers, as long as they are doing so lawfully and legitimately. I do not want to see officers’ discretion over the legitimate use of their powers restrained in ways that could lead to individuals escaping justice or evidence being lost, as could be the case if officers were legally prohibited from transporting arrested individuals alone.

As for Amendment 109 and the noble Baroness’s proposed addition to the PACE codes—which she now attributes to the noble Lord, Lord Carlile—to cover transportation of arrested persons, I will commit to keep this suggestion under consideration when we next undertake amendments to the code. I am aware that some forces, including the Met, have issued guidance to their officers for situations where they may need to approach a member of the public while operating alone. This is only the beginning of this conversation, and there will be more for all forces to do to ensure that the public, and women and girls in particular, have confidence in the way officers use their powers as they carry out their vital—

[Lord Carlile of Berriew (CB)]

I apologise for interrupting the noble Baroness, and I am grateful for what she has just said, but I want to go back to a previous point, if I may, because I think we would like an answer to the question I am going to pose at some point in her speech.

During the course of her comments earlier, the Minister said—and I think this was a little bit of movement—that the Home Secretary would be “strongly guided” by the views of Dame Elish Angiolini on whether the second part should be converted to a statutory inquiry. My question, and it is really a legal question for which I apologise, is this: if Dame Elish makes a reasonable request for conversion to a statutory inquiry and unreasonably the Home Secretary refuses that reasonable request, would that refusal then be subject to judicial review, and do the Government recognise that to be the case? I am sure that the question I have posed is a typical barrister’s question, in that I know the answer to it, but it would be nice to hear from the Minister that that answer is recognised because it may make a difference to the attitude of some noble Lords, as to how they view this issue, if it comes to a Division of the House.

[Baroness Williams of Trafford (Con)]

In my limited legal knowledge, a judicial review questions the process rather than the decision, so I am sure a judicial review could be sought on the process by which the Home Secretary refused, despite the advice of the inquiry chair. I think it is important to bear in mind that the Home Secretary has chosen Dame Elish because she has confidence in her, and the way in which they work together through this inquiry process will be absolutely crucial, not only to its outcome but to the confidence of both women and the public in general. That is, I think, the answer that I could give at this point. The noble Lord is looking a little bit doubtful.

[Lord Carlile of Berriew]

I apologise for intervening again. I have got my second wind; it is now tomorrow, which is not commendable. It is a simple question: is it recognised by the Government—and it may be that the Minister would have to take advice on this, which I recognise she might get from the noble Lord sitting next to her—that an unreasonable refusal by the Home Secretary would be, potentially at least, judicially reviewable?

[Baroness Williams of Trafford (Con)]

The noble Lord is talking in theory. Anything is possible. I cannot say whether, in the circumstances of the Home Secretary’s refusal and Dame Elish’s advice, the outcome would be reasonable or unreasonable, but it is important that we go into this with the Home Secretary very clear that she will be guided by Dame Elish. That is the thing to take away from this.