Chris Philp
Main Page: Chris Philp (Conservative - Croydon South)Department Debates - View all Chris Philp's debates with the Home Office
Criminal Justice Bill
Chris Philp ExcerptsTuesday 28th November 2023
(1 year ago)
Commons ChamberRead Full debate Criminal Justice Bill 2023-24 Read Hansard Text Read Debate Ministerial Extracts
Yvette Cooper
My hon. Friend is absolutely right about the impact of shoplifting. If town centres do not feel safe, it is local businesses that are hit and can end up going under as a result, undermining local economies and putting off local residents who want to go shopping. Sometimes elderly residents, in particular, will simply not go into town anymore if they do not feel safe, and if they feel that laws are just not being enforced when they watch people leaving the shops with a big bag of goods stolen from the shelves and see nothing being done. It is just not good enough.
That is why my hon. Friend the Member for Nottingham North (Alex Norris) rightly called for stronger measures to tackle assaults on shop workers. The Government did finally agree, as a result of his campaigning, to an aggravated sentence for assaulting shop workers, but that is not enough. The whole point is to make it simpler for the police to take action and to send a clear message from Parliament to police that this is an offence we take immensely seriously. That is why Labour will be tabling amendments that reflect the campaigns by USDAW, the Co-op, Tesco, the British Retail Consortium and small convenience stores for a new law and tougher sentences for attacks on our shop workers. Everyone should have the right to work in safety and to live free from fear.
The Minister for Crime, Policing and Fire (Chris Philp)
We do take retail theft and shoplifting very seriously and agree that more needs to be done, but may I draw the shadow Home Secretary’s attention, and that of the House, to the retail crime action plan, which the Government agreed with the National Police Chiefs’ Council just a few weeks ago? In that plan, the police commit to investigating reasonable lines of inquiry for all shoplifting cases, including running CCTV evidence through facial recognition software, attending the scene of a crime where that is necessary to gather evidence, where there has been an assault or where the offender has been detained, and using data analytics specifically to go after prolific offenders. All that is in addition to Project Pegasus, a joint project with retailers to go after serious and organised crime. I hope she will join me in welcoming the plan, which I believe will be very effective.
Yvette Cooper
I would gently say to the Minister that the fact that it is an announcement—
Yvette Cooper
It is a plan; it is not even an announcement of something that is going to happen. It is an announcement that there is a plan for the police to check CCTV when a theft has taken place. That just shows how bad things have got over the past 13 years. We welcome any work that is being done, including by the British Retail Consortium with the National Police Chiefs’ Council. However, the Government are not taking the action that they should be taking to underpin this. In particular, they are not changing the law either on assaults against shop workers or on the £200 limit, and neither are they supporting the neighbourhood police we need to do the work to deliver the plan. There are 10,000 fewer neighbourhood police and PCSOs on our streets and in our communities, and communities know that. It does not matter what the Policing Minister says or what figures he plucks from thin air: people know. They can see it. We all see it in our own towns in our own constituencies, and half the country now say they never see the police on the beat.
Yvette Cooper
I will give way, because the Policing Minister is a glutton for punishment on this one.
Chris Philp
The shadow Home Secretary is very kind to give way. I am sorry that facts and figures get in the way of her argument but, as I said at oral questions yesterday, the neighbourhood policing figures that she keeps quoting are unintentionally misleading. Local policing numbers cover neighbourhood policing, emergency response and others. Since 2015, which is the year that she cites, those numbers have gone up from 61,000 to 67,000, and overall policing numbers are at record levels, at 149,566—3,500 higher than under the last Labour Government.
Yvette Cooper
This is the problem with the Policing Minister: he just thinks that the country has never had it so good on crime and policing. As far as the country is concerned, he is incredibly out of touch. That is not what is happening in towns and cities across the country. The idea that we can just merge neighbourhood policing and response teams, which are different things, shows that he simply does not understand the importance of neighbourhood policing or what it actually does.
Neighbourhood police are the teams who are located locally. They will not just be called off for a crisis at the other end of the borough, district or force area; they are the police officers who can deal with local crimes. They are not the officers who have to deal with rising levels of mental health crisis, which we know so many of the response units have to deal with. There has been a big shift away from neighbourhood policing and into response policing because the police are being reactive, dealing with crises that this Conservative Government have totally failed to prevent for 13 years.
The Government have demolished a lot of the prevention work and teamworking between neighbourhood officers and other agencies in local areas, and as a result the other response officers are having to pick up the pieces instead. The Policing Minister’s approach just shows why the Tories are failing after 13 years. It is not the answer.
Chris Philp
Main Page: Chris Philp (Conservative - Croydon South)Department Debates - View all Chris Philp's debates with the Home Office
Criminal Justice Bill (Second sitting)
Chris Philp ExcerptsTuesday 12th December 2023
(11 months, 3 weeks ago)
Public Bill CommitteesRead Full debate Criminal Justice Bill 2023-24 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 12 December 2023 - (12 Dec 2023)
The Minister for Crime, Policing and Fire (Chris Philp)
Q
Rebecca, thank you for joining us this afternoon. In response to the shadow Minister, you raised questions about reducing the minimum age for community protection notices from 16 to 10, which is enclosed within clause 67 of the Bill. Do you agree that bringing 10 to 15-year-olds into the scope of CPNs provides an opportunity to halt a path into criminality that might otherwise occur? Combined with that, there is an opportunity to make other interventions to try to prevent the young person from getting into crime.
Rebecca Bryant: It is using a hammer to crack a nut. For 10 and 11-year-olds in particular who are on the cusp of causing antisocial behaviour, there are many other tools available to partners. I am not necessarily thinking about fining parents, because a lot of the young people who are involved in antisocial behaviour come from more deprived backgrounds, and breaching and fining is not going to enable change.
What we are looking for is a change of behaviour in the longer term. Yes, we are looking to prevent in the first instance, but then we look for change. Being able to engage with a young person and their parents by putting in positive mentoring and other youth interventions would surely have longer term success than a community protection notice would have. Also, there is a community protection warning before a notice; that kind of warning and discussion between a parent, a child and the authorities, which could be the housing provider, the local authority or the police, has much more impact when you are offering a positive intervention.
Chris Philp
Q
Rebecca Bryant: More extreme antisocial behaviour is often a criminal offence, so potentially there would be criminality and therefore a charge. That may be welcome in some cases, but not a blanket reduction to say that anybody from the age of 10 could have a CPN, which could then lead to breach and fine. As I say, from our members’ perspective, that seems too young.
Chris Philp
Q
Rebecca Bryant: First, our members absolutely welcome the repeal of the Vagrancy Act. It is outdated and clunky, and has not been fit for purpose for many years. The replacement powers suggested in the Bill are generally welcomed by our members. I think there is some movement around more community rehabilitation. The people we are talking about here are particularly vulnerable members of society who have been through significant trauma or who have significant mental health problems, drugs and alcohol addiction, and their behaviours and rough sleeping are due to those underlying facts. Thinking about community rehabilitation and support to change is as important as moving people on and creating the powers to do that.
Jess Phillips (Birmingham, Yardley) (Lab)
Q
Harvey Redgrave: No, it needs to be attached to more resourcing.
Chris Philp
Q
Andy Marsh, can I continue the line of questioning about the warrantless power of entry where it is necessary to recover stolen goods when there is no time to get a warrant? Andy Cooke just mentioned that the inspectorate would keep a close eye on whether that power, if granted by Parliament, is being exercised properly. Could you confirm for the Committee’s benefit whether you would in due course, if this were passed, produce some authorised professional practice to make sure that police forces exercise the power in a way that is responsible?
Andy Marsh: Minister Philp, as you are aware I am strongly supportive of police officers conducting all reasonable lines of inquiry to catch criminals and keep communities safe. It caused me great frustration as a chief if ever a letter landed on my desk to say, “My bike’s on sale on eBay, my daughter’s phone is in a house and you said you couldn’t do anything”.
We have already started our plans to hardwire this new power into our guidance, our training and our standard setting to do our very best, along with working in partnership with His Majesty’s inspectorate of constabulary and fire and rescue services to ensure that we use this power consistently in two respects. I do not want to see circumstances where the power should be used, where it is not and people could be caught and property returned; and I certainly do not want it to be used in such a way that would undermine confidence in policing. As in many things in policing, we need to get this just right. The College has a fundamental role in achieving consistency and getting it just right.
Chris Philp
Q
Andy Marsh: I do.
Chris Philp
Q
Andy Marsh: I am.
Chris Philp
Q
Andy Marsh: It should be a very significant moment in policing. The first code of ethics was put in place in 2014. I could explain to the Committee why we think we are able to improve on that, but we have to talk about why it is going to make a big difference. The College is able to put a code of practice in place which requires a chief constable to have due regard.
We wanted to make that code of practice as strong as possible around a duty of candour, but there were many other things in it—for example, a duty on a chief constable to ensure ethical behaviour in a force, through their processes, policies, reward recognition, promotion, application of the victims code, challenging unprofessional behaviour, looking after staff welfare, dealing with misconduct and vetting properly.
Even before we get to the duty of candour, which is very strong, this is the strongest lever the College of Policing can pull in order to bring about cultural change around standards in policing. We will be working with the launch of the second two parts of the code in January, which is different from the legal code. We will be working on supporting policing over a change programme to secure that cultural change, over many months—possibly years.
Chris Philp
Q
As you know, we made assaulting a public-facing worker a statutory aggravating factor for other assault offences in the Police, Crime, Sentencing and Courts Act 2022. We have already created a separate offence of assaulting emergency workers. Some people now say that we should have a separate offence for assaulting a retail worker, to give it more prominence. Others say, “Well, where do you draw the line?” You could have an offence for assaulting a teacher, a local councillor—and so it might go on. What is your opinion about whether there is any use in creating that separate, stand-alone offence?
Andy Cooke: I think I am right in saying it is an offence in Scotland, but I do not know how much that has resulted in a change in offending behaviour. I have not particularly looked at that point. It is a question of where you draw the line. The key issue is not whether a new offence should be constructed for assaulting a shop worker. It is more about how well, or not, policing is dealing with assaults, full stop; and how well police officers are dealing with the offence of shoplifting and the ancillary offences that sometimes go with that. I am aware that the National Police Chiefs’ Council is doing an awful lot of work around this at the moment, working with the PCC for Sussex and yourself, Minister.
Certainly, there has been a large reduction in the number of positive outcomes or detections for shoplifting over the last five or six years. That is not acceptable. It is in line with an awful lot of the other core charge and outcome rates that we have seen across policing. This is more about ensuring that the police across England and Wales treat this more seriously, particularly where there are aggravated offences alongside, such as assault. That is what Chief Constable Amanda Blakeman is attempting to do on behalf of the National Police Chiefs’ Council. Rather long-windedly, to come back to your initial question, without seeing the evidence for how that reduces offences or increases detections, I would not necessarily be in favour of a separate offence.
Chris Philp
Q
Andy Cooke: All those issues will be captured by the police effectiveness, efficiency and legitimacy inspections that we do every two years on every police force across England and Wales. We will look at reasonable lines of inquiry particularly and at the overall outcome rates—not just charge rates, because the out-of-court disposals are important as well, as it is whatever is the best sanction to fit the individual and the community at the end of the day. We look right across that to ensure that policing is doing what it should be doing, as we do every week of the year, and will continue to do so.
This is a really important issue for me, because these are crimes that strike at the heart of communities and neighbourhoods. It is really important that policing gets confidence and trust back. Whether that is the confidence and trust of shop workers or across neighbourhoods and communities, whichever way it is, a large part of getting that confidence and trust back is by the police showing themselves to be effective in what they do. The police need to increase their efforts to do so.
Chris Philp
Q
Andy Marsh: The College is supporting policing with guidance around dealing with retail crime, particularly persistent offenders. I agree with everything that has been said: much more needs to be done in order to deal with this crime type.
In relation to the specific offence, I can see that there are two purposes to it. The first is that it might well act as a deterrent. The College of Policing holds the evidence base for policing. We cannot categorically tell you there is an evidence base for deterrence, but that would be one of the reasons for putting it in place. I think the second, more important reason is for Parliament to signal its concern about a particularly disruptive crime that damages the fabric of our communities and society. This sends out a signal that the police need to do better. I am supportive of the proposal.
Chris Philp
Q
Moving on to a proposal contained in clause 21, which relates to giving police access to driver licence records—particularly the photograph—which currently are only readily accessible for road traffic purposes. The idea is that they can be used for facial recognition searches, where an image is retrieved from a crime scene from CCTV. That might include a shoplifting offence. This would make the DVLA driving licence database searchable by the police, in the same way that other databases are, including for facial recognition purposes. In your view, both Andy Marsh and Andy Cooke, would that assist the police in investigations? Is that a measure you would support?
Andy Marsh: I am supportive.
Andy Cooke: Yes, I support it. What goes alongside that is ensuring that the actions of the police on facial recognition are ethical and lawful. I am a big supporter of facial recognition used in the right way, and I think that opening up that database would benefit the detection of crime.
Chris Philp
Q
Do you agree with the Met Commissioner, Sir Mark Rowley, in saying that this measure will help chief constables better to manage their workforce and root out officers guilty of misconduct where appropriate and where necessary?
Andy Cooke: It would certainly help in relation to that. At the moment, the only recourse is judicial review, which as we know can be exceptionally expensive and difficult, so I see no problem at all in having that right of appeal for a chief constable.
Andy Marsh: The code of ethics, which we have just been talking about, puts a responsibility—in fact, a duty—on a chief constable to discharge their responsibilities around standards, conduct and behaviour; and I have been in a position, as a chief, where I have not been able to do that because ultimately I haven’t had the decision on who I ultimately have serving alongside me as a police officer. They are not employees—they are servants of the Crown. I have found that to be a deeply unsatisfactory position, so I am supportive of this.
Jess Phillips
Q
Andy Marsh: Yes, I do. That is a periodic hard stop, let us say, where there is a full review, but there should be a number of different control measures, both automated data searches and a duty—a responsibility to report and self-report—that will occur in real time between those vetting periods.
Alex Cunningham
Q
Professor Lewis: I am afraid that is not something that we have looked at.
Chris Philp
Q
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.
Chris Philp
Q
Professor Lewis: One of the things we thought was most important, in addition to trying to make the system more efficient, was to balance it with also making it more fair. In terms of efficiency, we recommended things like expediting the setting of a confiscation timetable, which is in paragraph 12, and creating a settlement process, which already happens informally—we call it EROC, which stands for early resolution of confiscation. That has been implemented in paragraph 13. We note also that better enforcement will improve the recovery of funds.
There have been several recommendations that have been implemented in order to improve enforcement. Enforcement plans, which largely implement our recommendations for contingent orders, are in paragraph 16; and allowing enforcement to take place in the Crown court as well as the magistrates court is in paragraph 17. We think that those will make the system much more efficient and will radically improve enforcement.
In terms of fairness, it is really important that orders accurately deflect a defendant’s benefit from crime. There are two ways in which we have recommended, and the Government have introduced clauses to implement, improving the fairness of confiscation orders. One concerns where someone has made only a temporary gain—for example, a money launderer who allows their bank account to be used to transfer £1,000,000 but gets paid £10,000 for doing that. When the gain is only temporary their benefit from crime is not really £1,000,000, given that they do not get to keep that. At the moment, orders can be made in the amount of the temporary gain and that recommendation has been taken up. I will find the paragraph for you in a moment.
Chris Philp
Q
Professor Lewis: I am happy to address that. The temporary gain issue is in paragraph 8. The other improvement to the calculation of benefit is in circumstances where the defendant has already disgorged some of the proceeds of their crime—so, for example, that may have been forfeited or seized by the state already. That should not be double counted, so that the defendant then has to pay back something that has already been seized by the state. That is in paragraph 5. We are very pleased to see those fairness recommendations, as well as the efficiency gains.
In terms of deadlines, ultimately there is a deadline: it is called the default term of imprisonment. When a confiscation order is made against a defendant, a term of imprisonment in default is set. The defendant may end up serving this period of imprisonment if it is activated by the court, on the basis that the defendant has demonstrated either wilful refusal to pay the confiscation order or culpable neglect in failing to pay it. The defendant can of course secure release from the default term by paying the confiscation debt. In the consultation paper we cite a case where, as the person is being taken off to prison, finally the confiscation debt is settled. So, we do know that that does work—at least, anecdotally.
In the consultation paper we provisionally proposed something that would be even more stringent than that. At the moment the defendant is released halfway through the default term. After that, there is no more threat of imprisonment. We provisionally proposed that the defendant should be released only on licence, similar to the way in which life prisoners are released, for example. I think that was probably our most controversial proposal. There were some people who were in favour of that, but lots of people thought it extremely draconian; another sector thought that it really would not work, and within that was His Majesty’s Prison and Probation Service. In other words, probation is not really designed to get people to pay their confiscation orders; it has another purpose. It has a rehabilitative purpose.
Ultimately, we decided that there are better ways to try to ensure enforcement. So, yes, there is the default term that remains, and that is a real threat to defendants. However, we also recommended confiscation assistance orders, requiring the defendant to attend enforcement hearings after the default term has been served and requiring the provision of financial information with penalties for non-compliance or providing false information. The first two of those—assistance orders and requiring the defendant to attend enforcement hearings after serving the default term—are both in schedule 4.
Chris Philp
Q
Professor Lewis: Again, we do not have a view; it is not something that we have looked at. Obviously, in our hate crime project we looked at circumstances where sentences were aggravated because of hostility towards a protected characteristic, and we recommended equalising the protection that the various protected characteristics carry so that every protected characteristic would have aggravated offences, as well as enhanced sentencing for those offences that do not have aggravated versions. However, we have not looked specifically at the individually aggravated offences such as the ones for assaulting a police officer and so on, I am afraid.
Chris Philp
Q
Professor Lewis: We do not have a corporate view, because we have not done work on it. You are right to worry that one is drawing very fine lines, and once one has added one offence, there is another group of people who are not included in the bespoke offences. One ends up with a proliferation of bespoke offences for different categories of function.
Chris Philp
Q
Professor Lewis: I do not think that I would go further than that. I think that concern should be considered, but I do not think that I am in a position to have a personal view, having not looked at it in any depth.
Chris Philp
Main Page: Chris Philp (Conservative - Croydon South)Department Debates - View all Chris Philp's debates with the Home Office
Criminal Justice Bill (Fourth sitting)
Chris Philp ExcerptsThursday 14th December 2023
(11 months, 3 weeks ago)
Public Bill CommitteesRead Full debate Criminal Justice Bill 2023-24 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 14 December 2023 - (14 Dec 2023)
Alex Norris
Q
Paul Gerrard: I gave evidence to the Scottish equivalent of this, when Daniel Johnson MSP’s Protection of Workers (Retail and Age-restricted Good and Services) (Scotland) Bill was passed. Our sense is that it resulted in the police in Scotland taking incidents far more seriously. It is quite hard to come by data, but the data that I see tells me that for attendance at the scene when we report incidents, Police Scotland is one of the five best forces in the country.
Paddy referenced this: when a report is made of violence in stores in Scotland, the individual is arrested 60% of the time. England and Wales are nowhere close to that; here, it is penny numbers. I do not pretend that this is empirical, but our sense as a business is that the protection of workers Act in Scotland increased the importance of this for the police, and the police have responded. If we could get to the position of 60% of reported violent offences resulting in an arrest, my colleagues would be very grateful, as would Paddy’s members, and all the members of the British Retail Consortium.
The Minister for Crime, Policing and Fire (Chris Philp)
Q
Helen Dickinson: It was like a practice for today.
Chris Philp
Q
You referenced the retail crime action plan. Paul, you just said that you thought that the stand-alone offence in Scotland got increased attention from the police. In law, assaulting a retail worker is illegal, and since the passage of the Police, Crime, Sentencing and Courts Act 2022, if the victim is a public-facing worker, that is statutorily an aggravating factor. You pointed to police attention as a benefit of introducing a separate offence. Just a couple of months ago, we all, except maybe Paddy, sat together at No. 10 Downing Street to launch the retail crime action plan. Do you agree that the commitments made in that plan, if operationalised—my expectation is that it will be, but we have to ensure that police do operationalise it—will deliver what you need, which is the police dealing with this comprehensively?
Paul Gerrard: We very much welcome that action plan. For a number of months, we have been calling for attendance at incidents involving violent repeat offenders. That is what the police have committed to. As you know, Minister, they are a long way from that; they are not attending 70% of serious incidents at present. I very much welcome the plan, and it is great that the police will turn up. I say that as a former law enforcement officer and Customs and Excise officer. When they do, they need the full tools available.
My strong view is that having a stand-alone offence will give the police, when they do turn up—I am with you; I really hope that they do—all the options they need. It will make it easier and quicker to investigate and prosecute the crime as a summary offence. I would also not underestimate, Minister, the power of Parliament saying that it is a specific offence to attack a shop worker. That will have an impact on three million shop workers, who frankly are not sure at present if Parliament cares what happens to them.
Chris Philp
Q
Paul Gerrard: When your predecessor introduced that, we welcomed it, though we said at the time that we would prefer a stand-alone offence. I remember being in a meeting —Paddy was there, as was Helen—with the then Home Secretary, the Attorney General and the Lord Chancellor, and we all welcomed it. The Home Secretary said that if the measure did not work, they would revisit the idea of a stand-alone offence.
Since that aggravated offence has come in, we have seen no discernible difference. I know that the Home Office cannot tell us how often the measure has been used—I am not sure whether it actually has been used—but I do not think that it has made a difference. It cannot be used when the police do not attend in the first place.
Chris Philp
Q
Paul Gerrard: They are hugely important commitments, and we said at the time—I said clearly on behalf of the Co-op—that we very much welcome the retail crime action plan. My point is that there is still a long way to go before that happens, and I know that you are aware of that. However, when police attend, they need the full toolkit, and one of those tools should be a stand-alone offence, because that makes it quicker and easier to prosecute the individual. It also sends a powerful message to 3 million shop workers in this country.
Chris Philp
Q
Paddy, perhaps I could turn to you to follow up on that point about tools. We discussed that a little yesterday, in our retail crime steering group meeting. One of the tools that both retailers and the police have at their disposal for identifying, arresting, and prosecuting offenders, and ultimately sending them to prison, is facial recognition. They can use it retrospectively, to catch offenders, and live, to identify prolific offenders who wander into a store. Do you want to share your views on the potential that that technology has to protect retail workers, and retail stores?
Paddy Lillis: Anything that protects retail workers and the product, and makes society better, I am in favour of. I am in favour of facial recognition, but it needs to be robust, because we already know that in some areas, it is seen as something that could bring racial bias, so we have to ensure that it is tight and robust to deal with that. As for anyone going into a store who is worried about facial recognition, if you go in to shoplift, or to assault a retail worker, then you should be worried about it, but if you are going in to carry out your day-to-day shopping, you should not have a problem with it. I welcome anything that helps the retail workers.
Coming back to what was said about a stand-alone offence, there is no real data tracking. Assaulting a public-facing worker was made an aggravated element that has to be considered by the courts, but it only has to be considered. Having assault of a retail worker as a stand-alone offence means that we can track the data, and track offences going through the court system. That is the benefit of the system in Scotland; more than 6,000 incidents have been investigated by the police, and we can track them through the courts.
This whole thing is about sending out the message to the criminal fraternity that we are all on the side of workers. They should be able to go to work free from fear of being abused, threatened or assaulted at work. This has been going on for too long, and this upsurge in violence and abuse is getting worse. I really urge you to look at this again. This is a win-win for every constituency in the country. You have an opportunity in this Bill to do this.
Chris Philp
Q
Helen, we talked about the new commitment in the retail crime action plan on the police to always attend in the circumstances that I mentioned, in order to address the issues that Paul quite rightly pointed to. For the Committee’s benefit, can you talk a bit about the way that we—the Government, policing and the retail community, particularly the British Retail Consortium—can work together to make sure that the commitments in the action plan are delivered in practice?
Helen Dickinson: There are a couple of things that I would highlight. When we are in conversation with the police, they often talk about whether enough of the right information is being reported to them to enable them to act. One of the workstreams associated with the action plan is about ensuring that people right across retail are aware of what data needs to go into various police systems to enable them to respond as appropriate. There is activity on the retail side, with the support of the police, on that interaction.
The second point you are perhaps alluding to is this data question. Certainly, we have agreed to provide support in the interim period, so that data is collected on response rates. Paul is doing that from a Co-op point of view. The question is whether we can get a wider read. That impacts on this issue. We think a stand-alone offence is required because it really builds on the accountability and visibility that is required from a police resourcing point of view. I think you had various policing people here, talking to the Committee, in previous sittings. If police do not have visibility across forces on what is happening in local communities, they are not allocating resource to the right place and are not necessarily able to respond.
We can certainly help by building the data that will give us a snapshot of whether the commitments made by the police in the action plan are being fulfilled, but that is not a long-term solution that will give us the response rates required from the police to address what is becoming an epidemic across the country, and what we see on the frontline in our communities. When we spoke yesterday, you said you were worried. I think everybody here should be worried. What is happening in certain parts of the US is much worse than the UK, but we are at a real turning point. Will the trajectory be halted? Without police visibility, as well as industry visibility, of the scale of the problem, so that they can put the resource in the right place, we will not make progress on the problem.
You are looking at me, Minister; I have not answered your question. We are really keen to continue the very strong engagement that we have had with you over the past few months. I know that this is a cross-party point, and that everybody takes what is happening very seriously. We are very happy to continue to do that.
Chris Philp
Q
I have just one more question. On the issue of the stand-alone offence, which has come up again and again, we have talked about the data point, and there may be other ways of addressing it. One question that will come up as we debate this issue is that if we create a separate offence for retail workers—we already have a separate offence for assaulting emergency workers, of course—what do we say when the teaching unions say, “Can we have a separate offence of assaulting a teacher?”, the transport unions say, “Can we please have a separate offence of assaulting a bus or tube driver?”, or someone says, “Can we have a separate offence of assaulting someone under the age of 18?” A lot of groups have claims that are just as valid and strong as yours. Will we end up with 50 stand-alone offences—for teachers, bus drivers, train drivers and so on?
Helen Dickinson: That is a very valid question, but I would turn it around: if any of those other industries was saying, as we are today, “This is an epidemic on a very scary scale, and it is having a huge impact not just on the 3 million people who work in retail, but right across every single community that we live and work in,” and that epidemic was everywhere, that would be valid. However, we are saying that this is a unique situation. It is very specific to what is happening in the retail industry today, and that is why we think that you should focus on retail.
Paddy Lillis: There are about 1,000 incidents a day, and we think that that is just the tip of the iceberg, because most retail workers are not reporting them. They see them as part of their job. We are trying to get over that. If you are abused in any form at all, it should be reported, so that we get proper data. On a daily basis, there is the cost to industry of sick pay, mental health issues, injury—
Helen Dickinson: The cost of inflation.
Paddy Lillis: Absolutely. It really needs to be focused on. These are people performing a duty and serving the public, and if they are abused or assaulted in execution of their duty, they should have the protection of Parliament.
Paul Gerrard: I have two observations. I said before that I was a customs officer; I have done plenty of night shifts at Dover, and I have done shifts seizing cigarettes. I have never seen, even doing that job, the kind of abuse and violence that shop workers face. It is worth reflecting on just how unpleasant and lawless it is at times. I am not sure that other sectors can say quite the same, but it is for them to make the case.
My second point—I mentioned it before, but I will say it again—is that as legislators, you have asked these people to enforce the law, be it on age-related sales or social guidance during the pandemic. You ask them to enforce the law and put themselves at risk. The work that USDAW does demonstrates that very often violence follows enforcing the law. If you are to ask them to enforce the law, you must give them proper protection. That is the deal that I had always assumed was being made. I will not make a special case for retail workers, but if you are going to make them enforce the law, you should give them proper and special protection in the law for doing so.
Chris Philp
Q
Paul Gerrard: There are a couple of things there, Minister. First, I would say yes, although that provision is for all people in public-facing service. The difference here is that if my colleague decides to sell alcohol to someone they should not sell alcohol to, they will face a criminal sanction. This weekend, I was in Manchester, and one of my colleagues refused to sell cigarettes to a minor, who jumped behind the kiosk counter, attacked every single kiosk, and pushed, shoved and threatened staff. If they decided, “Actually, I do not want that to happen; I will just sell them the cigarettes,” they would be breaking the law. That is the difference.
I get the point about public service—as a former public servant, I think that is right—but if you are asking people to enforce the law, you should give them special protection in the law through a stand-alone offence, of the kind that I had when I was a customs officer. It is a stand-alone offence to attack a customs officer, because they are enforcing the law.
Chris Philp
I will certainly continue to work with you all, regardless of the details in the Bill, to get the retail crime action plan fully implemented and bring into force a zero-tolerance approach. I think we all agree that that is necessary, and I will do everything possible to ensure that the police deliver that operationally. Thank you for your work in this area, and I look forward to keeping on working with you.
Alex Norris
Q
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.
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—
Chris Philp
Main Page: Chris Philp (Conservative - Croydon South)Department Debates - View all Chris Philp's debates with the Home Office
Criminal Justice Bill (Fifth sitting)
Chris Philp ExcerptsThursday 11th January 2024
(10 months, 3 weeks ago)
Public Bill CommitteesRead Full debate Criminal Justice Bill 2023-24 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 11 January 2024 - (11 Jan 2024)
Alex Norris
It is a pleasure to serve with you in the Chair, Dame Angela. I hope to follow your instruction to be free-wheeling as far as I physically can.
As the shadow Home Secretary, my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper), said on Second Reading, we support this legislation. This is likely to be the final chance during this Parliament for us to legislate in the area of crime, policing and criminality, and there is much to do. There are very many good things in this legislation, so the bulk of my contributions on the initial clauses, and my amendments more generally, seek clarity and will give the Minister a chance to put certain things on the record, rather than challenging the principle of the Bill.
As we start line-by-line consideration, it is important to recognise that the public expect more from the Government and this place on crime. Ninety per cent of crimes go unsolved and the charge rate has dropped by two thirds. That means that a person who commits a crime is less than half as likely to be caught as they were in 2010, and the public feel that very significant change. Of course, that is before we get to the woeful backlogs in the court system, and what they mean for victims and the likelihood of successful prosecution. My hon. Friend the Member for Stockton North will no doubt cover that issue in due course.
To that record is added low confidence in policing, the disastrous legacy that we still feel of the cut of 20,000 officers, 10,000 fewer police on the frontline, and the fact that 50% of the public—a number that has doubled—say they never see a uniformed presence in their community, so there is clearly much to do. Restoring policing and justice in this country must be a national priority. We welcome in most part what the legislation offers, and most of our discord lies with what is not in the Bill and the missed opportunities. We will seek to add those things in due course.
Clause 1 relates to articles for use in serious crime. Serious and organised crime is a growing menace in our country. Organised crime is often left out of the debate about community safety. The way crime is counted pushes organised crime, and particularly fraud, to the fringes of the debate, but it is a growing enterprise and it has to be tackled head on. By its nature, it is fast moving and shapeshifting. We are in the fourth industrial revolution—an era of significant technological change at breathtaking pace—and it is crucial that we seek to keep pace. Given the nature of law and legislation, that is hard, but we have to keep pace as best we can. We know that the tools that criminals, particularly violent criminals, use to conceal their work are ever changing, so we must change to meet that need.
Clause 1 criminalises the possession of items that can be used in serious crime, and my amendments relate to that. Without pre-empting the clause 2 stand part debate, the sorts of items we are talking about include 3D printer firearms templates, tablet presses and vehicle concealments. We heard in the evidence sessions that such items are being used by some of the most serious criminals in this country and those who facilitate their work, and it is right to address that.
I turn to amendment 51, which stands in my name. Clause 1(3) says:
“It is a defence for a person charged with an offence under this section to show that the person did not intend or suspect that the relevant article would be used in connection with any serious offence.”
Basically, if the police arrest someone and want to charge them with possession of one of the items specified in clause 2, the person can say, “I didn’t know it was going to be used in this way.” My amendment would delete that provision. It is of a probing nature—I do not intend to put it to a Division—but I want to hear from the Minister why the clause has been written in such a way. It is not without precedent, but we would not routinely specify on the face of a Bill the defence that a person facing a criminal allegation could use; that would be a matter for them.
Crucially, the burden will be on the prosecutor to prove that a crime has been committed. We know from clause 1(1) that a successful conviction for the offence requires prosecutors to prove to a criminal standard that, first, the person facing the charge possessed the article in question and that, secondly, they did so in circumstances that could reasonably give rise to suspicion that it would be used to commit a serious offence. The burden is on the prosecutor to prove that, so I am keen to understand why we need to specify on the face of the Bill that a defendant could make the defence that they
“did not intend or suspect that the relevant article would be used in connection with any serious offence.”
Is subsection (3) not just subsection (1) turned inside out? On that basis, is it necessary? If subsection (1) describes the alleged crime, surely it is axiomatic that the defence would be the opposite. Does subsection (3) need to be on the face of the Bill? Could the Minister explain that? We are in danger of asking people to prove negatives, which is harder. Specifying that defence may well be relied on by authorities in the future, and if an individual struggles to prove intent, which can be quite hard, or a lack of intent, which, frankly, is even harder, it could be challenging for the justice process further on. I am keen to understand the Minister’s perspective.
Amendment 52 would have the same effect on clause 3(3) as amendment 51 would have on clause 1(3): it would remove clause 3(3). The arguments for doing so are the ones I have just made.
The final amendment I have tabled in this group is amendment 55 to clause 1. Clause 1(1) relates to possession, and subsection (4) explains what “possession” means in this context. It says that
“if it is proved that a relevant article—
(a) was on any premises at the same time as the accused, or
(b) was on premises of which the accused was the occupier or which the accused habitually used otherwise than as a member of the public,
the court may assume that the accused possessed the relevant article”—
that is how possession is proven, and I would argue that is quite a broad definition—
“unless the accused shows that they did not know of its presence on the premises or that they had no control over it.”
That is what my amendment seeks to test, because I do not think the intention of the clause is to sweep up people for being in the presence of an article that was not theirs.
My concern relates particularly to shared accommodation. I lived in shared accommodation for a couple of years before I met my wife, and for a period of time it was with people I did not really know: I did not know what they did for a living; I did not know their personal characters; and, to be honest, I did not have an awful lot of engagement with them. Many came and went, and the communal areas were largely not used, but it would not have been out of the question for someone to leave work equipment around. It would not have been impossible for someone acting in bad faith to have one of the items detailed in clause 2 in a communal area, and then to have said that it was another person who was living there or that another person at some point had touched that item in order to move it and put something else next to it. Whose article it was—and therefore who is responsible and who may well have committed an offence under clause 1—could then become quite a challenging question. There needs to be more clarity that, in such circumstances, an individual would not have committed a crime.
That is what amendment 51 seeks to add. I do not intend to labour the point all the way to a Division, but I hope the Minister will put on the record that that is not how he sees the provisions working, and that he will give the Committee some degree of comfort on how such circumstances will be avoided.
The Minister for Crime, Policing and Fire (Chris Philp)
It is a huge pleasure to serve under your chairmanship once again, Dame Angela, as it will be in the Committee’s sittings in coming days.
I will not try to respond to the shadow Minister’s opening remarks in any detail, as we debated the wider issues on Second Reading, but I will observe in passing that we have record numbers of police officers, and overall crime, measured by the crime survey on a like-for-like basis, is 56% lower today than it was in 2010.
Alex Cunningham (Stockton North) (Lab)
That must be the only place where there are extra police.
Chris Philp
The fine city of Stockton.
I thank the shadow Minister for the thoughtful, reasonable tone that he adopted in discussing the amendments and in his opening remarks. I am sure that tone will characterise the exchanges throughout the Committee’s proceedings.
As the shadow Minister mentioned, clauses 1 to 4 criminalise the possession, importation, making, adaptation or supply of certain specified articles, where they can be used for serious criminal purposes, including items such as pill presses used to manufacture illegal pills and the templates for producing 3D firearms, about which the National Crime Agency and others are increasingly concerned.
As with strict liability offences, these offences entitle a prosecution to start with the assumption that the accused would have known what the articles were concerned with. I have mentioned a couple of those articles; there are very few, if any, legitimate uses for them.
The shadow Minister posed a reasonable question, asking why we have constructed the burden of proof in the way we have. Why say it is for the defendant to demonstrate that they had a legitimate purpose, rather than the other way round? The reason is because these articles have pretty much no legitimate uses other than for criminal purposes. Why would someone have a template to construct a 3D firearm other than for criminal purposes? There is no innocent use for that article that I can think of. The situation is similar for pill presses, unless it were a pharmaceutical company. To answer the shadow Minister’s fundamental and foundational question, that is why the burden of proof has been constructed as it has.
Amendments 51 and 52 would remove the ability for the defendant to expressly advance as a defence that they did not know about the purpose of the article, and did not know they were possessing it and so on. If the amendments were agreed to, those defences would not be available and the clause, as amended, would make these strict liability offences, with no defence that could be offered. The effect of the amendments would actually be to make the clause less favourable to the defendant.
Amendment 55 addresses items found on a premises. As the shadow Minister pointed out, at the end of clause 1(4), there is a defence that the person did not know about the item’s presence on the premises or they had no control over it; it can be one or the other, and does not have to be both. I will take the give example of shared accommodation, where people share a flat or a house. Clearly, if someone’s flatmate possessed one of these illegal articles and the flatmate did not know about it, or even if they knew about it but did not have control over it—it can be one or the other; it does not have to be both—that would then be a defence available to them. I can certainly give the assurance that he requested.
At the bottom of page 1, the clause provides that where flatmates are sharing accommodation, if one of the flatmates possessed the articles, and another flatmate had nothing to do with any offending and either did not know about the articles—or, even if they knew about them, had no control over them—that second flatmate would not be guilty of an offence, because the defence set out would be available to them. I hope that that gives the shadow Minister the assurance that he wanted.
Dame Angela, shall I save my wider remarks about the clauses for the stand part debate in the second group, or would you rather I addressed them now?
Alex Norris
I am grateful to the Minister for his full answer. I am deeply disappointed that I could not draw him on wider issues, but I suspect that on a long enough timeline, he will relent. The Minister must think about the fact that he is tempted to tell us that, on crime, we have never had it so good. That is something that we will test with the general public at some point this year, and he may be disappointed. We are ready on any day of his choosing—the sooner the better.
Alex Norris
That is a very reasonable correction.
I am grateful for the Minister’s response, and in particular the comfort on amendments 51 and 52, which relate to clause 1(3) and clause 3(3). I am not 100% convinced that a defendant’s ability to say that an item was not theirs has been removed; they could say that routinely, as they frequently do to police up and down the country in relation to various matters. Nevertheless, we would not want to weaken the defence, and the Minister’s point about that is enough for me to withdraw the amendments.
I am also grateful for the assurance on subsection (4), which it is important to have on the record. This is an issue—perhaps this is not for the face of the Bill—that will have to be thought about in a policing sense. The way the clause draws possession is quite broad: being on the same premises as something that someone used habitually. For example, perhaps a small group of people use a social club routinely and are engaged in a joint endeavour of committing crime. That would be quite hard for the police to identify. Probably the most likely outcome is that all individuals get charged, but there will be challenges. Again, that is probably not for the face of the Bill, but it may be something that the Government need to come back when it comes to its operation as a practical measure. They will need to work with the police to ensure that it is a practical power, because we want it to be used. We do not want the police to think it is too complicated or too broad to use, because it is very important.
On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Chris Philp
I beg to move amendment 14, in clause 1, page 2, line 1, after “means” insert “—
(a) in England and Wales,”.
This amendment and amendments 15 to 18 extend the offence under this clause to Scotland and Northern Ireland.
The Chair
With this it will be convenient to discuss the following:
Government amendments 15 to 17.
Government amendment 41.
Clause stand part.
Government amendments 18 and 19.
Clause 2 stand part.
Government amendments 20 to 22.
Clauses 3 and 4 stand part.
Government amendment 40.
Government amendment 49.
Government amendment 44.
Chris Philp
As we have discussed, clauses 1 to 4 introduce new offences to criminalise the importation, manufacture, modification, supply, offer to supply and possession of particular articles used in serious and organised crime. They currently apply to England and Wales only, but after consultation with the devolved Administrations in Scotland and Northern Ireland, the Government tabled amendments 14 to 22 and 41 to extend the criminal offences to the whole of the UK. This follows a request from the devolved Administrations, which we are happy to agree to.
Clause 2 contains a delegated power for the Secretary of State to amend the list of items covered by the clause. At the outset, we cover the templates for 3D-printed firearms, pill presses and concealed compartments. This creates a power, using an affirmative statutory instrument that is subject to full parliamentary scrutiny, to add additional items as we become aware of them. It is impossible for us sitting here to foresee or anticipate what items criminals may come up with in the future, so it is important to have this power to future-proof against criminal innovation.
The practical effect of amendments 40, 44 and 49 is to add these offences to the Proceeds of Crime Act 2002, which means that when a person is found guilty of an offence, they will automatically be considered guilty of having a criminal lifestyle when the court is making a confiscation order. I am sure that the Committee will agree that when someone is involved in serious criminal activity, we would want the proceeds of that criminal activity, particularly if it is serious organised crime, to fall into the scope of the POCA regime. I have already mentioned the items included, which are listed in clause 2, and I have also referenced the affirmative statutory instrument process for adding additional items in the future.
On clause 3, it is important that we include measures on vehicle theft in the Bill. I am sure that all of us have been contacted by constituents who are concerned about their cars being stolen, particularly from their home address. Criminals do that using various forms of technology that enable them to either pick up the signal from a key fob, or hack into a vehicle’s control system, disable the immobiliser, and activate and unlock the vehicle. They then drive off. Unfortunately, that is relatively prevalent.
There are things that constituents can do, such as put their key fob into a so-called Faraday bag—a little bag with an iron mesh around it—but that could be stolen. More modern vehicles, particularly in the past two or three years, have better security measures. Nonetheless, we parliamentarians want to do everything we can to prevent this kind of technology falling into criminal hands. That is why we are providing for two new criminal offences relating to vehicle theft using electronic devices such as signal jammers, but there are others also. The first offence criminalises possession of those devices, and the second criminalises importing, making, adapting, supplying or offering to supply those devices.
Jess Phillips (Birmingham, Yardley) (Lab)
I might be showing my entire ignorance of signal jammers, but is there no other use for these bits of technology? I can see whether there is when it comes to stamping things on pills and plans to build a gun on a 3D printer, but my ignorance about signal jammers means that I do not know whether there is another use for them.
Chris Philp
I thank the hon. Lady for that very good question. These two offences require a reasonable suspicion that the device will be used in connection with vehicle theft. The judge or the jury, depending on whether we are talking about magistrates court or the Crown court, have to be satisfied there is a reasonable suspicion that that is what the device will be used for. It is important that the police have the powers to arrest and prosecute people involved in this kind of activity. The offences should help a great deal in stopping these electronic devices getting into criminal hands.
We have talked a little bit about the evidential burden of proof in clause 4, and I will not rehearse those points at great length, in the interests of Committee members’ patience and time. As many of the articles that we are talking about can be used only for criminal purposes, it is reasonable to construct the clause this way. Members of the Committee will recall that we took evidence on this issue from a number of people in law enforcement, including Graeme Biggar, the director general of the National Crime Agency. Law enforcement—both territorial policing and the NCA—strongly welcomes these measures as strengthening the police’s armoury in the fight against organised crime. Through this regulation-making power, Ministers and Parliament will be able to keep up with changes in technology, which is extremely important given how fast technology is moving these days.
Alex Norris
I will start with the Government’s amendments. It is good, in general, for Governments to amend their Bills; it shows that they are still looking at the legislation. We hope to see them show the same flexibility to our amendments in due course. I am grateful for the written explanation the Minister has furnished, although it is possible that my first emotion upon getting dozens of amendments in the week before Christmas may not have been gratitude; I think there might have been a bit of swearing when we got the other set earlier this week, too. Nevertheless, we appreciate the explainer.
As we have heard, Government amendments 14 to 17, 20 to 22 and 41 extend the provisions in clauses 1 to 4 to Scotland and Northern Ireland, which is welcome. A four-nations approach to tackling serious and organised crime is wise. We do not want such activity to be displaced to places that are not covered by legislation, or for areas or indeed countries to be seen as safe havens. That has to be the right thing to do. I hope that the Minister will say a little about the discussions he had with colleagues in Scotland and Northern Ireland to reach this conclusion, and what other work may be done to ensure that the legislation is used effectively.
Having listened to what the Minister said on Government amendments 40, 49 and 44 on proceeds of crime, we are similarly comfortable with the approach being taken with those. As the Minister said, we heard from Graeme Biggar and other witnesses about the importance of the proceeds of crime. These measures would tighten that regime, which is welcome.
I covered most of our views on clause 1 when speaking to my amendments, so I will not repeat them. I will just say that the clause is an important step forward, and something on which we are keen. Clause 2 defines what is meant by “relevant article”. The articles in scope today are 3D printer firearms templates, encapsulators, tablet presses and vehicle concealments. [Interruption.]
Chris Philp
I will briefly respond to one or two of the points the shadow Minister raised. We engaged with the devolved Administrations both at an official level and through correspondence. I am glad to say that they were pretty keen to ensure that the new offences applied in Scotland and Northern Ireland. As the shadow Minister said, it is very important to ensure that serious criminals have no part of the United Kingdom in which they can operate. I am glad to observe generally that despite political differences, particularly with the nationalists in Scotland, we have a relatively good relationship on law enforcement co-operation. Generally, we work quite constructively together in a non-confrontational, non-politicised way, as I guess our constituents, the public, and the whole House would expect.
On the affirmative regulation-making power, I am grateful to the shadow Minister for breaking his habit and supporting it. He is quite right to say that this is technically a Henry VIII power, in that it is a statutory instrument that can amend primary legislation—under clause 2(3), the statutory instrument can amend the clause—but it has very limited scope, because only this clause can be amended. The only purpose for which the power can be used is specifying additional types of technology, because that is all that the clause does. While this is a Henry VIII power, it has very limited and specific applicability.
As for adding future items, there is nothing immediately on the list. I expect us to stay very closely in touch with the law enforcement community, particularly the National Crime Agency, but also the National Police Chiefs’ Council lead for serious and organised crime, and the regional organised crime units, who would rapidly identify new bits of technology used by criminals, so that we could very quickly add them. There is not a statutory duty to consult—other than, of course, with Scotland and Northern Ireland’s devolved Administrations—but we did consult on these provisions. It would be our intention, unless there was an emergency situation, to consult prior to adding any new items, lest there were unintended consequences. I hope that addresses the points raised, and I commend the four clauses to the Committee.
Amendment 14 agreed to.
Amendments made: 15, in clause 1, page 2, line 2, at end insert—
“(b) in Scotland, an offence specified or described in Part 1A of that Schedule;
(c) in Northern Ireland, an offence specified or described in Part 2 of that Schedule.”
See the statement for amendment 14.
Amendment 16, in clause 1, page 2, line 4, after “conviction” insert “in England and Wales”.
See the statement for amendment 14.
Amendment 17, in clause 1, page 2, line 5, at end insert—
“(aa) on summary conviction in Scotland, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both);
(ab) on summary conviction in Northern Ireland, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum (or both);”.—(Chris Philp.)
See the statement for amendment 14.
Clause 1, as amended, ordered to stand part of the Bill.
Clause 2
Section 1: meaning of “relevant article”
Amendments made: 18, in clause 2, page 2, line 17, after “1968” insert
“or, in Northern Ireland, Article 2(2) of the Firearms (Northern Ireland) Order 2004 (S.I. 2004/702 (N.I. 3))”.
See the statement for amendment 14.
Amendment 19, in clause 2, page 2, line 30, leave out “subsection).” and insert
“subsection or subsection (4)).
(4) Before making regulations under this section, the Secretary of State must consult—
(a) the Scottish Ministers, and
(b) the Department of Justice in Northern Ireland. —(Chris Philp.)
This amendment requires the Secretary of State to consult the Scottish Ministers and the Department of Justice in Northern Ireland before making regulations under this clause.
Clause 2, as amended, ordered to stand part of the Bill.
Clause 3
Electronic devices for use in vehicle theft
Amendments made: 20, in clause 3, page 3, line 10, leave out paragraphs (a) and (b) and insert—
“(a) in England and Wales—
(i) an offence under section 1 of the Theft Act 1968 of theft of a conveyance (as defined by section 12 of that Act) or anything in a conveyance, or
(ii) an offence under section 12 of that Act (taking vehicle or other conveyance without authority);
(b) in Scotland—
(i) theft of a vehicle, vessel or aircraft constructed or adapted for use for transporting one or more persons or of anything in such a vehicle, vessel or aircraft, or
(ii) an offence under section 178 of the Road Traffic Act 1988 (taking motor vehicle without authority);
(c) in Northern Ireland—
(i) an offence under section 1 of the Theft Act (Northern Ireland) 1969 of theft of a conveyance (as defined by section 12 of that Act) or anything in a conveyance, or
(ii) an offence under section 12 of that Act (taking vehicle or other conveyance without authority).”
This amendment and amendments 21 and 22 extend the offence under this clause to Scotland and Northern Ireland.
Amendment 21, in clause 3, page 3, line 16, after “conviction” insert “in England and Wales”
See the statement for amendment 20.
Amendment 22, in clause 3, page 3, line 17, at end insert—
“(aa) on summary conviction in Scotland, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both);
(ab) on summary conviction in Northern Ireland, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum (or both);”—(Chris Philp.)
See the statement for amendment 20.
Clause 3, as amended, ordered to stand part of the Bill.
Clause 4 ordered to stand part of the Bill.
Clause 5
Possession of a SIM farm
Question proposed, That the clause stand part of the Bill.
The Chair
With this, it will be convenient to discuss the following:
Clauses 6 and 7 stand part.
Government amendment 47.
Schedule 1.
Chris Philp
As Members will be aware, criminals often use telecommunications networks to target people to try and defraud them, for example with scam texts and scam calls. In fact, the secretary of my local residents association in Coulsdon, in my constituency of Croydon South, sent me a message just this morning with an example of a scam text that she had just received, purporting to come from the Royal Mail and inviting her to click on a link and fill in her details. This is clearly a problem.
I am sure that we have all heard such examples; indeed, we have probably received messages ourselves. Although most people can identify them as scams trying to elicit fraud, unfortunately some people who receive them are taken in, because the messages can often be quite realistic, and often they end up losing significant amounts of money.
Very often, these scam texts can be traced back to so-called “SIM farms”, which are electronic devices that sometimes hold hundreds of physical SIM cards that can be used to send out thousands and thousands of scam text messages in a matter of seconds. These devices are relatively easy to buy and—until this Bill passes into law—they are legal to buy online, enabling criminals to commit large-scale fraud by abusing our telecommunications network. In the fraud strategy, we committed to stopping that, which is why we are legislating.
We consulted on these proposals in May 2023 and received broad support for these measures. There were some concerns about the definitions being too broad, such that they would inadvertently criminalise some legitimate activity, but we have worked to develop the legislation in order to address those concerns.
Peter Dowd (Bootle) (Lab)
On that particular point about possession of a SIM farm, the Bill says that a person charged with an offence under the clause must provide “good reason”. It goes on to state what the good reasons are, for example providing broadcasting services. However, I would have assumed that a broadcasting service would be already licensed; similarly, if a body is operating a genuine public transport service, it is probably a local authority. Could the Minister explain that “good reason” a bit more? It seems a bit woolly or wide to me. Somebody who is clever enough to run a SIM farm would be clever enough to find a way around that somehow. I want to support the Government in advancing their proposal, but is it possible to tighten it up a bit more?
Chris Philp
The hon. Member raises a concern that inventive criminals might exploit the defences we set out in clause 5(3), on lines 37 to 40 at the bottom of page 3, which he was quoting from. He is concerned that criminals might find a way of pretending or purporting to offer, for example, legitimate broadcasting services when in fact they do not. I think that a court would take a view on legitimate broadcasting services. If there was a prosecution and a criminal advanced that defence, it would be up to the jury to decide whether the broadcasting services really were legitimate.
Since the hon. Member has raised the point, I will happily take it away and see whether there are any concerns that the clause might inadvertently provide a loophole for ingenious or inventive criminals. I will seek to satisfy myself that that is not the case, but if he has identified a problem or potential loophole, I will happily come back to the Committee. I will take that away as a point to double check. We can probably rely on juries, or magistrates in a magistrates court trial, to apply common sense to those defences, but it is good that he raised the question and I will certainly look into it.
Carolyn Harris (Swansea East) (Lab)
On that point, it is possible for scammers to intercept texts that come from a credible bank, so they can slot in a text in the line of communication between a person and their credible bank. Have the Government given any thought as to how we can stop that happening? I feel it makes us even more vulnerable.
Chris Philp
That sort of interception and insertion is not addressed by this clause, which is about SIM farms and the almost industrial-scale transmission of thousands of messages. What the hon. Lady is describing is a little different. It can happen to emails as well. For example, if someone is about to buy a house, they may be corresponding with their solicitor. When the solicitor tells them to transfer the funds to X bank account, a criminal can insert themselves into the email chain, pretending to be the solicitor, and put in a message telling the client to send the funds to their own bank instead of the solicitor’s client account. Inserting messages into an email chain happens quite a bit, but that is not what this clause is designed to address. The Security Minister, my right hon. Friend the Member for Tonbridge and Malling (Tom Tugendhat), is very aware of the issue because it falls into his portfolio rather than mine. Perhaps I could ask his officials to write to the hon. Lady to update her on the work he is doing with law enforcement on that point, because this clause just does not address it.
Turning back to the group of clauses, it is worth saying that these offences will make it difficult—I hope impossible—for criminals to access and use SIM farms for the purposes of fraud, and the police will be given the tools that they need to disrupt them. Clauses 5 and 6 ban the possession and supply of a SIM farm. However, as I have already said in response to the hon. Member for Bootle, if a person has good reason or lawful authority, obviously that is not criminalised. We have talked a bit about the legitimate use issue already, and there are some examples provided in clause 5, as we have discussed.
I will turn to amendment 47 to schedule 1. Schedule 1 confers powers of entry, search and seizure in relation to these offences. There is an offence of intentionally obstructing a constable when they are carrying out a search—the search is to be unimpeded, obviously . That offence also needs to apply in the case of people who are exercising the power of a constable, such as designated National Crime Agency officers, who are not necessarily constables. Amendment 47 to schedule 1 is a technical amendment that makes sure that all the relevant people can exercise this power of search: not just constables, but any person who is exercising the power of a constable. It is a technical amendment, making sure that it applies to everybody undertaking those searches to hopefully find and prosecute criminals who are using SIM farms. On that basis, I commend these provisions to the Committee.
Alex Norris
Fraud is an everyday, large-scale fact of life in this country. According to the crime survey, there were 3.7 million instances of fraud in England and Wales in 2022. Fraud now represents 40% of all crimes. It is an everyday peril that all of us face and from which vulnerable people are clearly at risk.
Furthermore, the National Crime Agency estimates that 86% of fraud goes unreported. That means that victims are unsupported and vital evidence that could break some of the fraud rings goes uncollected. We have to do better and build confidence among the public that fraud is not just a fact of life but that, if they report it, something will happen.
We have to push back on the idea—I hope that the Minister will be very clear about this in his response—that, to some degree, fraud is a lesser crime. When citing the statistics on crime reduction that the Minister cited in his opening speech, about which people say, “Yes, but you have not counted fraud in that”, we have heard other Ministers say—although I do not think we have heard this Minister say it—“Well, fraud is not quite the same as those crimes. It is a lesser crime. It doesn’t feel quite as bad”. That is wrong, and I hope that the Minister will say, on the record, that that is not the view of the Government.
Alex Norris
If I were to open my social media accounts now, I think that I would find myself called an awful lot worse than Alex Cunningham, so I have no problem with that at all.
My hon. Friend the Member for Stockton North is absolutely right, though. That sort of action can ruin lives. And it can destroy a business. I probably should not be relying on “Coronation Street” for my arguments, but there is a good storyline about that at the moment. It can ruin a business. We know that there is vulnerability there. For an individual, losing that sort of sum of money—£6,000—could ruin their life. It could jeopardise their housing situation, and it can jeopardise relationships, too—we have seen that happen in the past—so it is very serious. It knocks people’s confidence as well; it makes people not want to engage with others. This is just as important as other crimes, and it is really important that we send out that message.
Part of the reason for the success that criminals have is that they can do mass-scale phishing. That means that, while there are things that we all receive and think, “Well, that’s a pretty crude scam. Who is going to fall for that?”, we know that trying crude and rudimentary things over and over again on a mass scale can, on a long enough timeline, succeed.
That is before we get to the incredibly sophisticated methods that my hon. Friend the Member for Bootle mentioned, and I welcome the response that the Minister gave on that. There is a difference. The Minister mentioned his constituent and Royal Mail. Most of the time, I would look at the link and say, “Well, that’s not Royal Mail.” I would ignore it and move on. But, if I was expecting something from Royal Mail, I cannot tell you with 100% certainty that I would do that. That is the case not least because we always want what is coming: “Where is it? Come on, I’m ready for it.” I can easily see how that mistake can be made, and that mistake could have a profound and long-term impact on someone’s life. It is only possible to do that because of technology that allows relentless and repeated communication attempts, and we know that so-called SIM farms are the way that that is done.
We support the aim behind clause 5 of making an offence of the possession of a SIM farm. I have reservations about the utility of subsection (2), but we have probably tested that debate to destruction. The point that was made about “good reason” was really good. I am slightly uncomfortable with the Minister’s response that the court will set that; I think we could do that. There are legitimate, although deeply irritating, marketing purposes for that degree of communication—it is for others to say how effective it is. Even political parties engage in it sometimes, so bulk text messages are not without precedent. It feels like we can tighten up the clause to specify who can use these things and to what purpose. Again, there will be edge cases that fall between the marketing of a bad product and the marketing of a fraudulent product. There is a difference between those things. People have a right to advertise a product that is not very good. We would not want to consumer it, use it or buy it, but they can do that. That would be at the edge of the cases we are talking about here, so we need greater clarity, and perhaps the Government can tighten that up before Report.
Clause 7 introduces schedule 1, which is amended by Government amendment 47. The schedule relates to the offence of obstructing a person in their endeavours to investigate possible offences under clauses 5 and 6. The effect of the amendment is that a person cannot obstruct someone other than a constable as that search warrant is being executed. Again, we do not have a problem with that—people need to comply with the provisions of the law—but we need a bit more clarity. I do not say this to be smart; I just want to understand it. The Minister characterises this as a technical amendment, which is a term of art in this place. Was there a drafting error or does it genuinely not change the substance of this provision? I do not think the intention is for lots and lots of people to have the ability to exercise these powers. It is tightly defined, and those who are not constables who can do this will be accompanied by a constable, but we could do with a bit more clarity.
Finally on this topic, part of the challenge we face is that although some of these enterprises will be set up in this country, they can also be set up and executed from other nations that have weaker arrangements than we will have, assuming this legislation passes. Will the Minister tell us about the conversations the Government are having with European and global partners about this, and give us some information about where the hotspots are so that there is greater public awareness?
Chris Philp
Let me respond to one or two of the issues that the shadow Minister quite reasonably raised.
Fraud makes up about 40% of all criminal offences—the figure I have in my mind is 41%. The hon. Gentleman is right that it is incredibly serious, and I have certainly never suggested anything to the contrary. It can devastate people’s lives. People who have worked hard over a lifetime building up their life savings to fund their retirement or their children’s education can suddenly have them taken from them in very distressing circumstances, so there is no question but that fraud is an extremely serious crime. The Government take it extremely seriously, which is why there is a fraud action plan, backed with investment—we recently provided over £100 million of extra money.
I was one of the Ministers through whose hands the Online Safety Act 2023 passed during its extremely lengthy gestation. It will have a significant effect by requiring the large social media platforms to proactively take steps to prevent fraud. Some of them have already done that voluntarily, and there have been big reductions in the amount of online-originated fraud, so this is a huge priority.
The simple reason we do not include fraud when comparing the overall crime figures to 2010 is that it got picked up by the crime survey for England and Wales, alongside computer misuse, only in about 2016. If the figures going back to 2010 existed, we would obviously include them. When we talk about a 56% reduction in crime since 2010 to on a like-for-like basis, which I am sure I will be referring to once or twice in the next year, it excludes fraud and computer misuse only because they were not in that series of figures.
Chris Philp
I will in a moment. When we compare the crime figures since 2016, we see that overall crime has fallen. For example, overall crime including fraud and computer misuse has fallen by 10% in the last year, which I am sure the shadow Minister is about to stand up and welcome.
Alex Norris
I gently say that, in their attempts to create a picture of community safety—which is not what people feel—there is a problem in Government Ministers relying on statistics that they know to be incomplete. There should be some reflection on the numbers cited. I understand the like-for-like point—that is true—but it is problematic to tell the public how much safer they are if that argument relies on excluding a significant and growing type of crime. That must be wrong.
Chris Philp
It is not reliant on that. It is simply that the data does not exist. The chief inspector of constabulary Andy Cooke said in his state of policing report last June that we are arguably safer than we have ever been before. If we look at the crime types for which we do have continuous data going back to 2010 and before—such as burglary, robbery, the vehicle theft figures that the shadow Minister himself quoted recently, violent and seriously violent crime—we see that all of those individual crime types have fallen dramatically.
Chris Philp
In a moment. Bicycle theft is down by 39%, vehicle crime by about 50%, and violent crime by around 50%. It is not the case that some sort of artifice going on and that if we added fraud, that would paint a different picture. Whichever crime type we look at, we see that it is going down according to the crime survey. We all know why police reported crime sometimes shows different trends. It is because the police are being driven by—we are getting a bit off topic here, so I am probably going to get told off in a minute.
Chris Philp
Yes. There is probably another time to debate this point, and perhaps now is a good moment to give way to the hon. Member for Birmingham, Yardley.
Jess Phillips
I think I am at risk of offending you in the Chair, Dame Angela, but may I have the data for whether rape, child abuse or domestic violence have gone up or down?
Chris Philp
Thank you, Dame Angela; you were extremely tolerant, but I could sense the frostiness beginning to build without even looking at you.
The shadow Minister, the hon. Member for Nottingham North, asked two more questions on this group, which I will answer very briefly. He asked for assurance that this technical amendment was not a smokescreen for some nefarious Government plot. The wording of Government amendment 47 is very clear, in that it just inserts the words,
“a person who has the powers of a constable”.
Therefore, it extends the powers of search only where that person has the powers of a constable, which of course is set out in legislation. I gave as an example certain employees of the National Crime Agency. This is not an open-ended provision—it is very specific and precisely defined in law as someone who already has the powers as a constable. We are not creating any new powers in the Bill, other than that those people who have the powers of a constable can conduct these searches.
The shadow Minister also asked about international co-operation, which is extremely important. My colleague the Security Minister works very closely with international partners—in fact, he is almost constantly travelling. There will be an international summit chaired by the Home Secretary later this year on the very topic of combating fraud, working closely with the Five Eyes and engaging bilaterally with the European Union and other key countries. There are various jurisdictions that tend to originate more of this fraud—Russia, for example—and the Security Minister in particular and the Home Secretary are working very closely on that. In order to avoid any further disapproval, Dame Angela, I think I have answered the questions.
Question put and agreed to.
Clause 5 accordingly ordered to stand part of the Bill.
Clauses 6 and 7 ordered to stand part of the Bill.
Schedule 1
Possession or supply of Sim farms: powers of entry etc
Amendment made: 47, in schedule 1, page 75, line 15, after “includes” insert “—
(a) a person who has the powers of a constable;
(b)”.—(Chris Philp.)
This amendment provides that the offence in this paragraph applies in respect of persons who have the powers of a constable.
Schedule 1, as amended, agreed to.
Clause 8
Fraud facilitated by electronic communications: possession or supply of other
articles
Question proposed, That the clause stand part of the Bill.
Chris Philp
We have already discussed that technological change can be very rapid, and that criminals, including fraudsters, are quite technologically literate and very often embrace emerging tech capabilities to attempt to defraud the public. Just as we previously discussed in relation to articles used for serious and organised crime, so here, in clause 8, we are proposing to create a power by regulations for the Secretary of State to make a list of new items that might be prohibited where they can be used for the purposes of committing crime by way of electronic communications.
As the shadow Minister has said, one has to be a little cautious about conferring regulation-making powers too freely, so there are constraints on this. For example, the offences created using these regulation-making powers can only create summary offences of possessing or supplying technology to be used in connection with fraud facilitated by electronic communication. It is very specific and very narrow.
The shadow Minister previously asked about consultation. I said that there was no statutory requirement to consult on those extensions—outside of the devolved Administrations, of course—but that the broad intention was to do so, unless there was a very good reason otherwise, such as an emergency. Here, however, we do have a statutory duty to consult. Members will find it in clause 8(5), which states that
“the Secretary of State must consult such persons appearing…to be likely to be affected by the regulations”.
There is therefore a statutory obligation to consult here, which I hope provides the shadow Minister with the assurance that he is probably about to ask for.
Alex Norris
I am afraid that clause 8 deeply frustrates me. I do not think it is in any way the same as clause 2(3). That provision allows the Secretary of State to add items to and remove them from an established list concerning an offence that is established in law on the face of the Bill. This is slightly different. Clause 8(1) states:
“The Secretary of State may by regulations create a summary offence of possessing or supplying an article specified in the regulations.”
That is making a law, not monitoring a list. This is an example of a Henry VIII power used badly. The provision should be in the Bill, and if the nature of the networks is likely to change over time, there should be a mirroring power, similar to that in clause 2(3), that enables us to change the list. We would have supported that. This puts us in an invidious position. Of course, we want this to be in legislation and we want there to be regulation and control over electronic communications networks or services being used in a dangerous way. However, we are being asked to jump into the abyss and to choose between either voting against including in the Bill something that we think is broadly a good idea, or allowing the Government to do an incomplete job and leave a placeholder. Even as I stand here, I am not sure which is the right answer.
I welcome the fact that consultation is on the face of the Bill. That gives us some degree of safeguard. However, accepting the clause would mean accepting that a significant offence would be created and decided upstairs, rather than in the white heat of the legislative process. I do not think that is right. I am not sure if the Minister is able to say anything that will give me slightly greater comfort. If we were able to see what the offence looked like between different stages of a Committee, that would probably be enough to salve my pain. I do not think that will happen, but I will listen to what the Minister says.
Chris Philp
I am grateful to the shadow Minister for his question. I point to the way the clause is constructed. Clause 8(2) is narrowly defined, in that is says:
“An article may be specified only if the Secretary of State considers that there is a significant risk of the article being used for a purpose connected with fraud that is perpetrated by means of—
(a) an electronic communication network, or
(b) an electronic communication service.”
Clearly the Secretary of State’s decision would be amenable to judicial review if it were unreasonably exercised. The scope of the ability to create a new criminal offence is highly circumscribed and it has to fit within that narrow box in the Bill.
Alex Norris
I accept that that is circumscribed; it is not narrow. However, electronic communication networks constitute an exceptionally broad area of British life, touching us every minute of every day, and that does not feel very narrow at all.
Chris Philp
That is only part of the circumscription, because prior to that the clause says,
“being used for a purpose connected with fraud”.
If we think about that as a Venn diagram, the shadow Minister is right to say that electronic communication networks and services represent an enormous field. However, that is not where the power is created. It is created in the intersection between that bit of the Venn diagram and the bit where the article or technology is being used for a purpose connected with fraud, and that intersection is a lot smaller.
I do not think that any member of this Committee or any Member of Parliament, of either party, would object to criminalising technology being used for a particular fraudulent purpose. In addition to the protection afforded by the statutory obligation to consult, there is also the fact that this can only be a summary offence, which severely limits the maximum penalty that may be applied.
Alex Norris
I am very grateful to the Minister for giving way. He is being very generous. I completely agree that there is not a person in this building—including, I suspect, the mice on the Terrace—who think that it is a bad idea to have powers that restrict fraudulent use of electronic communications. The problem is that in the previous debate the test for that was good reason and then we would rely on the court. In the eyes of Government, therefore, it is clearly not black and white whether it is fraud and they may well rely on others to define that. In order to get through the blockage, perhaps the Minister could think about that in the context of the assurances he gave on good reason to my hon. Friend the Member for Bootle. That would probably be enough for me at this point.
Chris Philp
I can certainly confirm that where someone possesses technology for a good and legitimate reason, by definition it would not be getting used for a purpose connected with fraud. I can also confirm that where someone possesses communications technology for a legitimate purpose and not for use in connection with fraud, we would not expect that to ever be criminalised, either through offences created via this clause or in any other way. I hope that assures the shadow Minister.
Subsection 4 says:
“The regulations may—
(a) contain exceptions or defences”
of exactly the kind that we have created in clauses 1 to 4 already.
I hope that the assurance I have given, which will be in Hansard, combined with the narrow nature of this, the narrow scope of the ability to create offences, the statutory duty to consult, and the fact that it is a summary offence, meaning that the maximum term is six months at the moment—all those things taken together—will give the shadow Minister assurance on the questions that he is raising.
Question put and agreed to.
Clause 8 accordingly ordered to stand part of the Bill.
Clause 9
Possession of weapon with intent to use unlawful violence etc
Alex Norris
I beg to move amendment 53 in clause 9, page 6, line 24, at end insert—“(c) a sword.”
This amendment would make clear that the bladed articles in scope include swords.
Alex Norris
Clause 9 introduces a new offence of possessing an article with a blade or point or an offensive weapon with the intent to use unlawful violence. Knife crime is a scourge in this country. It devastates communities and families. It feels that we have a steady drumbeat of tragic cases, which, as I say, have a devastating effect, and it is right that we are taking action to do something about it. We should want to take action. This is not new; it feels to some degree that we have been spinning our wheels on action, but we are here now, so let us take that on its face.
The Government consulted in April last year on restricting the possession of so-called zombie knives and have announced on multiple occasions that they plan to enact such restrictions. I hope the Minister will give some clarity but, from the explanatory notes, I think that this is an attempt to make good on that. Paragraph 45 of the explanatory notes says:
“Following the closure of the consultation in June 2023, the Government published its response in August 2023. In that response, the Government committed to implementing all the proposals.”
Those are the proposals relating to restrictions on so-called zombie knives.
“Clauses 18, 10 and 9 give effect to those requiring primary legislation”.
I hope the Minister will be able to say whether this is the final stage of the ban’s implementation. Previously, we have been expecting secondary legislation in this regard.
Alex Norris
I am grateful to the Minister for that commitment. Currently, it is an offence to carry an article with a blade or point of over three inches, with the exception of a pocket-knife, in a public place. It is also an offence to threaten somebody with an offensive weapon and to carry in public any article intended to be used as an offensive weapon. As we understand it, the introduction of this new offence bridges the gap between threatening someone with a bladed article and being in possession of such an article.
Again, we support the intention to close the gap and ensure that we crack down on this scourge. Sharp instruments or knives are currently responsible for 41% of homicides, so clearly the police need stronger powers to deal with that. However, we think that the Government could go further and be clearer about what blades or weapons should be covered by the new offence. That is the effect of my amendment 53. Secondary legislation may be the place for that, rather than the Bill, but I do not want to miss the substance of amendment 53.
In recent years, there has been progress on banning certain weapons used in violent attacks. We have debated measures, for example, on adding knuckledusters, sword-sticks and now zombie knives to the list of offensive weapons. That progress is welcome, but again it does not go far enough because with increasing frequency supposedly decorative blades, such as ninja swords, are being used in violent knife attacks. It is vital that we update legislation again to include blades such as those.
The impact of my amendment would be to add swords to the list. I am perfectly aware that the Bill may not be the most elegant place for it, but what I am trying to get from the Minister is a commitment to extend the ban to swords. Recently, I met the family of Ronan Kanda and their Member of Parliament, my right hon. Friend the Member for Wolverhampton South East (Mr McFadden). They told me their story and about their campaign for justice. Ronan, a beloved son and brother, was just 16 years old when he was walking back to his home in Wolverhampton after picking up a PlayStation controller from a friend’s house. Just a few yards from his front door, Ronan was attacked from behind by two 16-year-olds carrying a machete and a ninja sword. Ronan was stabbed twice, suffering wounds to his back and chest. Tragically, he died at the scene.
It was later revealed that the perpetrators of this heinous act had mistaken Ronan for someone else and that he was not the intended target. The weapons used in the attack had been bought online by the perpetrators—just 16 years old themselves at the time—using another person’s ID, and had been collected from a local post office by them on the day of the attack. In July this year, they were sentenced to 18 and 16 years in prison for their crime.
When I met Ronan’s family recently, it was clear that what happened had shaken them to their core. It has had a devastating impact on their lives. I commend their unspeakable bravery in campaigning to try to create change as a result. I felt very guilty—this will happen with many others, too—that they had to tell their story yet again when I met them; there is that process of telling the story all over again in the pursuit of change. The family campaign now for ninja swords, the type used in Ronan’s murder, to be taken off the streets so that other families do not suffer such a loss. I again commend their extraordinary bravery.
The test that I will apply to the Government’s changes on zombie knives, and on broader knife crime, is whether they would take off the streets a weapon like the one that killed Ronan; if not, the changes will fall short. Existing legislation does not cover ninja swords, and nor does the Bill. From the Government’s response to the consultation on knife crime, I understand that they intend to stop short of ninja swords. I believe that to be a mistake, which will be compounded by other restrictions.
Leaving the ninja swords loophole in place will push sales and marketing towards ninja swords—if people cannot buy a zombie knife but can buy a ninja sword, that will displace activity and make the swords more likely to be carried. That risks more lives being lost, due to the lesser consequences for carrying.
Amendment 53 would add ninja swords explicitly to the Bill. We think the clause is good and important, but the amendment would enhance it. I know that an issue has been raised about ninja swords for decorative purposes, but I do not think that it is beyond us to have arrangements for when that can be managed. Again, the clause is not about possession—it is narrower: about the intent to cause unlawful violence—so I do not think that issue should be a concern, although there could be some sort of licensing scheme to address it.
I am very much looking forward to what the Minister says. This is not a criticism, but I just do not understand why in his plan he stopped short of ninja swords. I hope to get that clarity. Even if not today, the Government need to move on this. I hope to hear that that process is starting.
Chris Philp
It may be helpful to clarify the two different kinds of provisions that apply; the shadow Minister was conflating the two slightly. The first area, the one that we are debating, is to do with the existing offence of possessing any bladed article in a public place without good reason. That can include a legal kitchen knife. That carrying is a criminal offence under section 139 of the Criminal Justice Act 1998. That applies to every bladed article, even ones that are legal, such as a kitchen knife or anything else. It also applies to swords, including ninja swords, because they are bladed articles with a sharp point.
At the moment, the possession of any such knives, including so-called legal knives, carries a maximum sentence of up to two years if someone is caught in possession. For a second possession offence, the mandatory minimum is six months in prison, absent exceptional circumstances—we tightened that up in the Police, Crime, Sentencing and Courts Act 2022. That is the law for possessing blades in public.
The clause states that when someone possesses any bladed article—including a legal kitchen knife—with intent to cause damage, the maximum sentence will not be two years, as currently, but four years, if that person intends to cause harm. For example, they might put a video on TikTok saying, “I’m going to stab X”. If there is intention to cause harm, that doubles the maximum sentence. That is what the clause does. The amendment to include swords is not necessary, because every bladed article, including swords, is already included.
The hon. Member for Nottingham North was actually talking about a different set of provisions, which were included in our consultation and our response: banning certain kinds of knives. When a knife is banned, it cannot be sold, imported or possessed even in private. Something such as a zombie knife was covered in the Offensive Weapons Act 2019, where it has threatening writing on the blade. Such knives cannot even be held in someone’s home. Having banned knives at home or selling them to anyone is an offence; a kitchen knife can of course be sold and had at home, but even a kitchen knife cannot be carried down the street without a good reason.
In our consultation, we were talking about the knives that people cannot even possess privately at home; they cannot be sold or imported, and they are completely prohibited. The measures we announced in the Bill will simply increase the list of things on the completely prohibited list. For example, a loophole in the 2019 Act meant that threatening words on the blade were required for the zombie knife to be illegal. We are removing that provision, so that any zombie knife, even with nothing on the blade, will still be illegal—common sense, really.
Those changes—widening the range of knives that will be completely illegal—will be made not through the Bill, but through secondary legislation that will be laid before the House in the near future, by which I mean a small number of weeks. I do not wish to provoke the ire of the Chair, so I should say that the place to debate what should be in and out of that list is probably in the Delegated Legislation Committee that will come soon, in a small number of weeks.
I thank the shadow Minister for mentioning the case raised by his right hon. Friend the Member for Wolverhampton South East (Mr McFadden). I have also met Ronan’s family, who were brought into Parliament by the right hon. Member. We obviously both heard the same account of their story. It was extremely moving and tragic that such a young life was lost. I think it was a case of mistaken identity—as the shadow Minister said, Ronan was attacked from behind. I add my tribute to the family, and to Ronan’s mum and sister in particular, who have recounted the terrible, traumatic event to try to improve law enforcement in this area. We are mindful of that case, and I look forward to debating what is on and off the list when we come to it.
For complete clarity, I repeat the point that the possession of any bladed article, including swords and even kitchen knives, in a public place without good reason is already a criminal offence with a maximum sentence of two years. When a knife is possessed with intent, as in the attack on Ronan—the two youths obviously intended to go and kill someone, although it was someone else—the clause increases the maximum sentence from two years to four years. In that case the youths clearly committed homicide, which obviously has life as a maximum sentence.
I hope that I have provided clarity about the purpose of the clause and explained why the change is necessary, because it is included already, and that in secondary legislation we are altering the law on completely prohibited weapons. That will happen in a small number of weeks. I hope that addresses both the hon. Gentleman’s amendment and the substantive provisions in clause 9.
Alex Norris
I am grateful for the clarity on what will be covered under the provision. On that basis, I am happy to withdraw my amendment. I must say that I am a bit frustrated: it was not clear from the explanatory notes whether this was the full ban. Clearly, from the answer that I have been given, it is not. However, it is a shame that the change will come in secondary legislation, because we are here now—we have legislation in front of us—and we cannot amend secondary legislation.
There will be a big debate in the Delegated Legislation Committee on the point about swords. We will be put in an invidious position, because of course we will not vote against the secondary legislation, but we will not be able to get the change that we really want and we will continue to miss out. The Government’s approach is slightly frustrating. The commitment that the secondary legislation is coming shortly is good, but I hope that the Minister will use the time to reflect on my point. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question accordingly agreed to.
Clause 9 ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Scott Mann.)
Chris Philp
Main Page: Chris Philp (Conservative - Croydon South)Department Debates - View all Chris Philp's debates with the Home Office
Criminal Justice Bill (Sixth sitting)
Chris Philp ExcerptsThursday 11th January 2024
(10 months, 3 weeks ago)
Public Bill CommitteesRead Full debate Criminal Justice Bill 2023-24 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 11 January 2024 - (11 Jan 2024)
The Minister for Crime, Policing and Fire (Chris Philp)
On a point of order, Ms Bardell. First, it is a pleasure to serve under your chairmanship. Secondly, for the record, I just clarify that the maximum sentence for a possession offence under section 139 of the Criminal Justice Act 1988 is four years. This morning, I inadvertently said two years.
The Chair
I thank the Minister for that point of order.
Clause 10
Maximum penalty for offences relating to offensive weapons
Alex Norris
It is a pleasure to serve with you in the Chair, Ms Bardell, and to resume proceedings. They were very good-natured this morning, and I am sure they will be similarly good-natured this afternoon.
Clause 10, like clause 9, relates to the Government’s consultation on banning or restricting sale or possession of knives. As we did this morning, we support that important venture. Clause 10 increases the maximum penalty from six months’ to two years’ imprisonment for the offences of importation, manufacture, sale and supply, and possession of a weapon, flick knife or gravity knife. This is a welcome change that we support. We must send a clear message that those who commit such offences, whether to supply offensive weapons or to profit from them, are not beyond the reach of the law.
It is also welcome to see that these offences will be triable either way, and therefore to provide the police more time to investigate alleged offences without the pressure of the current time limit of six months for prosecution. It is right that we give the police the flexibility to ensure that they can gather the necessary evidence to secure convictions and ensure that the full impact of these changes can be felt. Clause 10, taken with clause 9, is very much a step in the right direction.
I want to use this opportunity to press the Minister, through amendment 54, on an area that I think is missing from the Bill: proper age checks for those who are buying bladed products. Again, similar to the debate we had on clause 9, it may be that the Government want to look at this issue in a different way. As it stands, age checks must be carried out on delivery of bladed products to ensure that those receiving such items are of the correct age, but too often we hear of incidents where that has not happened, and the consequences can be fatal. This is an area worth revisiting.
I refer back to the case that I raised this morning: the tragic murder of Ronan Kanda. During the trial of those convicted of Ronan’s murder, it was revealed that the weapons used in the attack had been bought online by the perpetrators. They were just 16 years old, so they should not have had those products. They used another person’s ID and collected from the local post office on the day of the attack. Those are breaches of the law in and of themselves, which led to a devastating breach of the law later that day. The age verification process clearly failed there, and just hours later there were tragic consequences. This is just one incident, but it is part of a wider problem, which, if we do not have really good controls on, could mean knives and blades falling into the hands of children who cannot have, or have not, thought of the danger to themselves and others that comes with such weapons. We know that a failing process creates that vulnerability. It is a weakness in the legal framework.
Amendment 54 therefore seeks to raise the penalty—from just a fine—for those who deliver bladed products or hand over bladed products or articles to someone under 18. It would increase that penalty, which I believe would create more rigour in the age check. That in turn should help prevent knives from falling into the wrong hands; it could address that weakness. This issue is perhaps a good reminder of the challenges that our shopworkers face, although we have tabled new clauses that I suspect might give us the chance to discuss that matter, so I will not do so today.
Being able to verify someone’s age and deny someone a knife they are trying to buy seems like a friction point to me, so it is right that there should be counterpart legal support, but that that really good quality verification must happen, or there is real danger. My attempt to have age checks carried out diligently is one way of doing it, but it is not the only way. Campaigners rightly want this change. If it is not to be this change on the face of the Bill, I hope we might hear from the Minister about how it can be strengthened and how we can ensure really good confidence in that verification process.
Chris Philp
I am grateful to the shadow Minister for setting out his amendment and his views, as he did this morning in such a thoughtful and considered way.
I turn first to the substance of the clause. It increases the maximum penalty from six months’ to two years’ imprisonment for the offences of possessing, importing, manufacturing, selling or supplying prohibited offensive weapons when they are sold to those under the age of 18. We take seriously the sale of knives to under-18s, so the increase in the penalty from six months to two years is important.
We do not want people under 18 to be sold knives; we have heard about all kinds of tragic examples of them using knives to commit homicide. On 27 September, a tragic case in my own borough, Croydon, involved a 15-year-old schoolgirl, Elianne Andam, who was brutally murdered with a knife at 8.30 in the morning. The alleged perpetrator was himself only 17 years old. Preventing such knives from getting into the hands of young people is critical. That is the purpose behind the clause.
The clause relates to selling knives to those under 18, but the amendment speaks to a slightly different point: delivering knives to those under 18. Delivering something is obviously different from selling it. If someone is selling it, they are a shop, a retailer, and the person responsible for the transaction. Acting as a delivery agent—whether the Post Office, FedEx, UPS or some such—means delivering a parcel on behalf of someone else, which is a slightly different responsibility. That is why the law as it stands sets out in the Offensive Weapons Act 2019 some measures to address the issue. The delivery company must have arrangements in place, together with the seller, to ensure that the items are not delivered into the hands of someone under 18. The penalty for delivery is an unlimited fine.
Some new guidelines have been set out by the Sentencing Council. They came into force on 1 April 2023. Organisations now face fines with a starting point of between £500 and £1 million. That is a starting point, so they can be very substantial fines indeed when applied to a corporate body. Individuals can, of course, be fined as well. It is important to make it clear that corporate bodies can be liable for such fines, as I said a second ago, because they are obviously capable of paying much larger amounts of money than an individual.
Amendment 54 raises an important issue. The case that the hon. Member for Nottingham North referred to is relevant—I completely accept that—but I think that the changes made in the Offensive Weapons Act and the Sentencing Council guidelines that came into effect less than a year ago strike the right balance on the delivery of such items. For the sale of items, however, we are increasing the custodial maximum up to two years.
In addition, the provisions of the Online Safety Act, which will be commenced into full force once the various codes of practice are published by Ofcom, will place duties on things such as online marketplaces, which historically have not been regulated. Online marketplaces have been facilitating, for example, the sale of knives to young people or the sale of illegal knives—the kind of knives that we are banning. Those online marketplaces will fall into the remit of the Online Safety Act, so the online space will get clamped down on a great deal.
Carolyn Harris (Swansea East) (Lab)
For the sake of clarity, will the Minister confirm that if a shop owner sells offensive weapons, the shop owner will be liable and not the person who works on the premises—obviously, they should not be held accountable for a shop owner’s decision to sell the weapon.
Chris Philp
On the sale, it could be either an individual who makes a sale and/or the business. A defence of coercion is available generally, however—I am not sure whether it is in common or statute law. If a shop worker were coerced into selling something, or compelled to do so in some way, that might be a defence if they were accused. Coercion certainly would be a defence in that case.
The increase in the maximum sentence up to two years makes a lot of sense. I have referred to the provisions in the Online Safety Act. On delivery—when someone is simply delivering as opposed to selling—the Offensive Weapons Act 2019 broadly strikes the right balance, but I certainly agree with the shadow Minister that anyone involved in the supply or delivery of knives has a very strong moral obligation, in addition to the legal ones I have set out, not to supply under-18s, because we have seen very tragic consequences, such as the cases in Wolverhampton and Croydon, and tragically many others as well.
Alex Norris
I am grateful for the Minister’s answer, which has given me a significant degree of comfort. The point we will hold under review is the nature of delivery companies and the nature of their employment. Some of that is third party and some involves self-employment, which has been a matter of debate in this place on many occasions. I fear that that weakens to some degree the chain of accountability. Nevertheless, very significant fines are in place, as the Minister said. I wonder whether a custodial sentence backstop would strengthen the provisions a little further, but given that the current guidelines are relatively new, as the Minister said, we ought to give them time to work.
The point about online marketplaces was important and has been of interest to the shadow Home Secretary. We are very keen that that should happen as soon as possible. We are grateful for that assurance from the Minister. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 10 ordered to stand part of the Bill.
Clause 11
Encouraging or assisting serious self-harm
Alex Norris
My hon. Friend is not operating “Weekend at Bernie’s”-style—I promise. That is a dated reference. She talked about people being the same age, so maybe that will be the test of that.
We will welcome the point around children, but it must be seen in the context of what my hon. Friend said. The Minister has said she is satisfied on both points. We say, “We will see whether that holds”. We need those provisions to be enacted and to see the laws on the statute book used properly on deepfakes, otherwise we will have to return to this point. On that basis, I beg to ask leave to withdraw the amendment.
A mendment, by leave, withdrawn.
Chris Philp
I beg to move amendment 48 in schedule 2, page 85, line 32, at end insert—
“Armed Forces Act 2006 (c. 52)
1 In the Armed Forces Act 2006, after section 177D insert—
‘177DA Photographs and films to be treated as used for purpose of certain offences
(1) This section applies where a person commits an offence under section 42 as respects which the corresponding offence under the law of England and Wales is an offence under section 66AA(1), (2) or (3) of the Sexual Offences Act 2003 (taking or recording of intimate photograph or film).
(2) The photograph or film to which the offence relates, and anything containing it, is to be regarded for the purposes of section 177C(3) (and section 94A(3)(b)(ii)) as used for the purpose of committing the offence (including where it is committed by aiding, abetting, counselling or procuring).’”
This amendment amends the Armed Forces Act 2006 to make provision equivalent to the amendment to the Sentencing Code made by paragraph 19(2) of Schedule 2 to the Bill.
The Chair
With this it will be convenient to discuss the following:
Government amendments 36 and 50
Government new clause 10—Power to seize bladed articles etc: armed forces.
Government new clause 11—Stolen goods on premises (entry, search and seizure without warrant): armed forces.
Government new clause 12—Powers to compel attendance at sentencing hearing: armed forces.
Chris Philp
I hesitate to say that these are technical amendments; given the shadow Minister’s comments this morning, I do not want to unduly provoke him. However, this series of amendments simply extends some of the measures within the Bill to the service police —the military police—of all branches of the armed forces and to the service justice system. The relevant measures are: the power to seize bladed articles, contained in clause 18; the power to enter property to seize stolen goods without a warrant, contained in clause 19; the power to compel an offender to attend their sentencing hearing, contained in clause 22; and making grooming a statutory aggravating factor for sexual offences against a child, contained in clause 23.
Amendment 48 to schedule 2 also ensures that the offences relating to intimate images provided for in the schedule also fully read across to the service justice system. Our armed forces do incredible work, of course, but we must ensure that the law applies to those serving in uniform as much as to members of the public. That is why we are proposing these important—although also technical—amendments.
Alex Norris
We are getting to the witching hour on a Thursday, but the Minister tempts me around technical amendments. The point that I was making earlier was merely about whether we were using the same definition. I would also perhaps dispute that a technical amendment could be “important”, because I think that, at that point, it would cease to be technical. However, as I say, I think that that is a distinction of classification rather than substance, and that these are sensible amendments—although I would not say that they were technical. There are other issues that will come up in those later clauses that the Minister mentioned, but we will debate them, I am sure, in due course.
Amendment 48 agreed to.
Schedule 2, as amended, agreed to.
Clause 14
Criminal liability of bodies corporate and partnerships where senior manager commits offence
Question proposed, That the clause stand part of the Bill.
Chris Philp
The identification doctrine is a legal test used to determine whether the actions and mind of a corporate body can be regarded as those of a natural person. The concept has existed in common law since 1971, but, since then, companies and corporations have grown in size and complexity, which has made it more difficult to determine who a controlling mind might be. That means that employees of large corporations with significant control over business areas are none the less not considered sufficiently controlling under that common-law legal test originally dating from 1971. Therefore, the corporations for which they work might not be held criminally liable where we think they should be.
Substantial progress was made to address the issue in the Economic Crime and Corporate Transparency Act 2023, which put the identification doctrine on a new statutory footing, making provisions to ensure that corporate liability can exist where a senior manager commits an offence while acting in the scope of their actual or apparent authority. However, because of the scope of that Act, it only applied to economic offences.
During the passage of that Act through Parliament in the last calendar year, the Government committed to expanding the statutory identification doctrine that I have just described—the expanded version that applies to large companies and the many senior managers in them—to all kinds of crime. Clause 14 makes good on that Government commitment by repealing the relevant sections of the Economic Crime and Corporate Transparency Act 2023 and replacing them with the identification doctrine applying to all crime and not just economic crime.
I am sure that all of us here want to make sure that when large corporates commit offences, they are held to account and prosecuted. The common law provisions, dating back to 1971, are too restrictive. They do not go wide enough or reflect the fact that modern-day corporations have quite a few senior managers taking decisions. The clause takes what has been done already for economic crime and applies it to all criminal law. On that basis, I hope it commands the immediate and enthusiastic assent of the Committee this afternoon.
Alex Norris
I am not sure what “immediate” means in that context—must I instantly print off clause 14 and staple it to my back? Nevertheless, we support the clause. We supported similar provisions in the passage of the Economic Crime and Corporate Transparency Act, and this finishes off the job. It is actually very pertinent to the week we have had in Parliament, because it is safe to say that this week has been dominated by the outrage about the Post Office/Horizon scandal. There is a legitimate expectation among the public and in this place that when such things happen, individuals and entities will be held accountable, so I do not think we will find much to disagree with. Obviously, the provisions will not apply in the case of the Post Office/Horizon scandal, but they will do so in the future.
The Post Office/Horizon scandal is exceptionally important. There will be others that come through and find their moment, for whatever reason—whether they relate to Hillsborough, Primodos, sodium valproate, surgical meshes or anything covered by the Cumberlege review. We need much quicker action. The Post Office/Horizon scandal is ongoing, presumably because the major elements of perpetration have already taken place. They would not be in scope of the Bill, so I would be interested in the Minister’s views. Other than that, I am happy to give the clause our support.
Chris Philp
In common with most legislative provisions, these provisions are prospective, rather than retrospective; we legislate retrospectively only rarely. I understand that some Post Office-specific measures may be brought before Parliament. There will be ample opportunity to debate them and to seek to right the very grave injustice that has clearly been committed.
Question put and agreed to.
Clause 14 accordingly ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Scott Mann.)
Criminal Justice Bill (Seventh sitting) Debate
Full Debate: Read Full DebateDepartment: Home Office
Chris Philp
Main Page: Chris Philp (Conservative - Croydon South)Department Debates - View all Chris Philp's debates with the Home Office
Criminal Justice Bill (Seventh sitting)
Chris Philp ExcerptsTuesday 16th January 2024
(10 months, 2 weeks ago)
Public Bill CommitteesRead Full debate Criminal Justice Bill 2023-24 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 16 January 2024 - (16 Jan 2024)
The Chair
Before we begin, I have a few preliminary announcements. Members should send their speaking notes by email to hansardnotes@parliament.uk and please switch your electronic devices to silent. As you know, tea and coffee are not allowed at these meetings.
Clause 15
Testing of persons in police detention for presence of controlled drugs
The Minister for Crime, Policing and Fire (Chris Philp)
I beg to move amendment 25, in clause 15, page 11, line 19, leave out lines 19 to 21.
The amendment and amendment 26 ensure that procedural provisions in respect of regulations made under new section 63CA of PACE 1984 operate as intended.
The Chair
With this it will be convenient to discuss the following:
Government amendment 26.
Amendment 133, clause 15, page 11, line 27, at end insert—
“63CB Diversion services for persons testing positive for controlled drugs
Where a person has tested positive for the presence of controlled drugs in a sample taken under section 63B, that person must be directed to an appropriate drug diversion service.”
This amendment would require the police to refer individuals who test positive for a controlled drug to a drug diversion service.
Clause stand part.
Government amendments 27 to 31.
Clauses 16 and 17 stand part.
Government amendments 45 and 46.
Government new clause 13—Testing of persons outside of police detention for presence of controlled drugs.
Chris Philp
It is a great pleasure, as always, to serve under your chairmanship this morning, Mrs Latham.
This series of Government amendments and associated clauses expands the police powers to drug test on arrest to include locations outside of custody. That includes introducing a new police power into part 3 of the Police and Criminal Evidence Act 1984 to drug test persons on arrest at a location outside of the custody suite when certain conditions have been met. It also amends part 3 of the Drugs Act 2005 to provide the police with a power to require people who test positive to attend an initial assessment—and, when appropriate, a follow-up assessment—in respect of their drug misuse.
The Government are keen to get more people into treatment: something that we have funded with £300 million of extra cash over two or three years, with the aim of creating 54,500 extra drug treatment places. I am sure that we can all agree that the best thing is to get people off drug addiction, to prevent criminal behaviour.
The assessments that I have just referred to will enable those people to be referred into treatment or support services, whose funding has just been increased, as I mentioned. The new power will operate alongside the existing power, as expanded in the Bill, to drug test people on arrest or charge in police detention under section 63B of PACE.
Jess Phillips (Birmingham, Yardley) (Lab)
During the evidence sessions it was made very clear, by both experts in the field and the police officers, that currently there is absolutely no possibility of this resource being available. Will the Minister please outline what resources the Home Office will put in place to ensure that the drug testing that he is rightly outlining will be able to take place?
Chris Philp
I thank the hon. Lady for raising the point. It is important to have capacity to deliver the testing. As I mentioned a couple of moments ago, we are now in the second year of a three-year funding commitment, as part of the 10-year drug strategy, to fund 54,500 extra drug treatment places across the country, delivered in partnership with local public health bodies. Those places have been created. There are now also liaison and diversion officers, I think, in every—or almost every—custody setting and in many courts as well, to help identify people who have a drug addiction.
Just before Christmas, I visited the custody suite in Northampton, where I met liaison and diversion officers. They speak to people who have been brought into custody and, if there is a substance problem, get them referred as we are describing. I accept that there is a need for resources, but those investments are being made. The implementation is being tracked by a cross-Whitehall taskforce that meets on a regular basis and includes officials from lots of Departments.
Jess Phillips
I thank the Minister for that and am fully in favour of more drug support services. What I was asking was whether the police have the resources to undertake the drug testing that the clause outlines. The police said no; this is not about whether somebody then gets referred on—the police, in the evidence session, said no. The Casey review into the Metropolitan police last year found that samples from rape cases were being kept next to packets of sandwiches in a police officer’s fridge. Yesterday, there was the story about the foetus in Rochdale. Also, if—
Jess Phillips
Okay. There are just not the clinical resources in police stations currently. Will the Minister outline how the testing will be funded?
Chris Philp
I have talked about the liaison and diversion officers and the treatment capacity, but on police resources, which the hon. Lady was asking about, we have just completed a substantial police recruitment programme. We now have 20,951 more officers than we had four years ago and 3,500 more than we have ever had before. The training takes two to three years; as officers complete their training, more and more will be available for frontline deployment. In addition, we are also—
Chris Philp
Well, the actual tests often get administered by police officers, and the hon. Lady asked about police officer capacity.
We are also removing some of the administrative burdens on policing by reforming the Home Office counting rules—that has already saved half a million hours of police time per year. Furthermore, the NHS are in the process of picking back up mental health cases where there is no criminality or threat to public safety. That is right; people in a mental health crisis need medical treatment, not the police. Once that is fully implemented, and we are in the middle of doing it now, it will free up more than a million hours of police time. In addition to record police numbers, we are removing some of the burdens keeping them from frontline activity, including what we are discussing.
I am satisfied that both police resources and medical treatment resources are available. If anything, the challenge is actually that we are not using all the treatment places available. Some of the proposals in this legislation will help the police refer more people for that initial assessment, which we hope and expect will lead to treatment in the extra places that we funded.
I do not want to stray too far from the clause, Mrs Latham. Following the community safety partnerships review and antisocial behaviour powers consultation, we are, as I mentioned, expanding drug testing on arrest to locations outside of custody so that the tests can be done quickly and easily and take up less time, to answer the point made by the hon. Member for Birmingham, Yardley. That expansion, in addition to the expansion of drug testing to class B and class C drugs, as the Bill already provides, will ensure that police have all the necessary powers to identify people with a drug problem and get them into treatment.
The Government amendments confer a power on the police to drug test when a person aged 18 or over has been arrested for an offence and the officer has requested that the person give a sample. The power is discretionary, to be used when the officer feels that it is an appropriate course of action. It is also worth being clear that when drug testing takes place outside of police detention—that is, not in a police station—only a non-intimate sample, such as a swab or saliva, may be taken, for obvious reasons.
As with the current powers to drug test in police detention, testing may take place only when a person has been arrested for a relevant trigger offence, or another offence where an officer of at least the rank of inspector has reasonable grounds to suspect that the misuse of a specified controlled drug has caused or contributed to the offence and expressly authorises the test. A refusal to provide a sample without good reason will be a criminal offence, as is currently the case with the existing regime for drug testing on arrest.
Jess Phillips
In many domestic abuse cases—the fatal ones, sadly—the fact that the perpetrator was on drugs is used as a mitigating factor to get, for example, a manslaughter charge rather than a murder charge; I could cite many cases, but I will not stretch the Chair’s patience. Will drug testing be done in cases of domestic abuse, and has the Minister thought about how that might help the perpetrator?
Chris Philp
As I just set out, drug testing might be done, particularly if the inspector thinks that drug abuse might have contributed to the offending. If someone is on drugs that are causing them to commit domestic abuse, I am sure we would all want that identified so that action can be taken.
On the hon. Lady’s point about homicide versus manslaughter, that is not in the scope of this Bill—we are not making any changes in that area. I do, however, share her concern about the cases of people who murder their partners. We should not be somehow excusing their behaviour or seeking to diminish their culpability by saying, “Oh, they’re on drugs,” and getting the charge dropped from homicide to manslaughter. Although that is not the topic of this Bill—the Bill makes no changes as far as that is concerned—I share the hon. Lady’s concern. I hope that the legal community have heard the point that she has just made, with which I have enormous sympathy. I think it sounds reasonable.
The safeguards for the new power include that it can be used only by approved constables; that the statutory PACE codes of practice must include provision about how the new drug testing power is to be exercised; and that the sample may be taken only for the purpose of a drug test. That is to ensure that the power is used proportionately and only by those with appropriate experience.
The individual being tested must also be given a notice setting out why, when and where they were tested, and the result of the test. Following a positive test, a person can be required to attend an assessment with a drug-support worker, as is the case with the current drug testing regime. Non-attendance without good reason will itself be an offence. We will probably debate Opposition amendment 133 later; that tries to go further on this issue.
The trigger offences and specified controlled drugs will be set out in secondary legislation. The Secretary of State will, in line with the regime for drug testing in police detention, have the power to specify in regulations those trigger offences within the scope of drug testing in locations outside of custody, and the controlled drugs to be tested for. Such regulations will be subject to the affirmative and negative procedures respectively. That will ensure appropriate parliamentary scrutiny and allow for the regime to be varied if circumstances require.
The amendments also make various—I hesitate to use this term after the comments from the shadow Minister, the hon. Member for Nottingham North, last time—technical and consequential amendments; I think we should excise the word “technical” from our discussions in future to avoid triggering the shadow Minister. The amendments make various important and consequential changes to ensure that the drug testing regime outside of custody has the same legal effects as drug testing in police detention.
In talking through the amendments, I have explained the intent behind clauses 15 to 17. I will rest my remarks there and reply later to any further points raised in the debate.
Alex Norris (Nottingham North) (Lab/Co-op)
As we have heard, clauses 15 to 17 expand police powers to test for drugs in suspects who have been arrested and are in police detention. Drug testing on arrest was originally introduced as a police power under the Criminal Justice and Court Services Act 2000, which inserted sections 63B and 63C into the Police and Criminal Evidence Act 1984. That legislation gave the police the power to drug test those arrested if aged 18 and over, or charged if aged 14 and over, for the presence of specified class A drugs if arrested or charged either for a trigger offence or where a police officer of at least the rank of inspector has reasonable grounds to suspect that specified class A drug use has caused or contributed to the offence and authorises the test. Trigger offences include theft, handling stolen goods, going equipped for stealing and possession of a controlled drug if committed in respect of a specified class A drug. We know that such offences have a significant link to substance misuse. Clause 15 expands police powers to test not just specified class A drugs but any specified controlled drug.
We were very keen on such measures 23 years ago in relation to class A drugs, and we support their expansion to include any specified controlled drug; my anxiety stems from the fact that, as my hon. Friend the Member for Birmingham, Yardley mentioned, we heard in the evidence session and we know from engagement with our local police forces that there is not likely to be the capacity to do this effectively.
The Minister said that there are record police numbers, but he knows that there are 10,000 fewer police in neighbourhood settings. His pushback to that in previous debates has been to classify response police as neighbourhood police, but they would certainly not be able to do this type of activity. The burden of proof is on the Minister and the Department to show where the capacity will come from. We have real doubts, although we hope the measure will work.
Alex Norris
I am grateful to my hon. Friend. Routinely or in extremis, demand pressures can push officers to do just the basics—keeping people safe and putting people in detention—rather than dealing with the broader issues, as we want them to. That problem creates further issues, and that is a challenge for us all.
Chris Philp
On that point, it is important to clarify the reason we are introducing the national partnership agreement, which applies Right Care, Right Person across the whole of England and, we hope, Wales too. Following a successful pilot in Humberside, it was found that in many of the mental health cases that the police were dealing with there was no criminality and no threat to public safety, so a police response was not right for the person suffering the mental health crisis. Not only was that taking up lots of police time that should have been spent doing other things, such as dealing with drug offences, but the person suffering a health episode was not being properly treated. It was found in Humberside that it is better for everyone, including the patient, to get a medical response in those circumstances. That is the motivation for the national partnership agreement, which the hon. Gentleman just referred to.
Alex Norris
The evidence from Humberside was strong and gave us encouragement to expand the scheme nationally; the challenge will be whether we see the same level of thought in its implementation across the country as we saw in Humberside. As my hon. Friend the Member for Bootle said, the risk is that forces will apply the scheme by simply not responding or turning their phone off, and displacing the activity. Humberside is a really good example of something done thoughtfully and well, but we should not assume that we will see that nationwide.
Jess Phillips
I believe in so many principles that I know in reality cannot be realised. I believe in the principle that when someone is in crisis with suicide, there should be a telephone line that I can call that means that they get what we used to call—because it used to exist—a safe and well check. I have done that many times myself. I believe in principle that that should happen. If a Minister were to stand in front of me and tell me that that was the policy, it would be like them telling me that the sky is green. It may very well be the policy, but the reality is completely different. In the evidence sessions, all the experts in the field backed me up.
I want to know how this will actually work. I absolutely want it to work, but, to the hon. Gentleman’s point, I am very concerned about some of the safeguards. One of the things that people who work in the criminal justice system notice is the trends in how wrong ’uns, essentially, start to get away with things—there is always some new defence coming down the line. In the days when we did not believe victims of domestic abuse and they could just be ignored—see yesterday’s report on Rochdale—people did not need a response. The current favourite of a domestic abuse perpetrator on a summary or more serious offence is a counterclaim against the victim—“Well, she’s abusing me”—and my God, does it work! The amount of women who are victims of domestic abuse currently being accused by police forces across the country of being perpetrators, not victims, of domestic abuse is plentiful.
We also know that if we look at our female prison population, or at the roll of women in any substance misuse service, we would go a long way before we found one who had not been a victim of domestic abuse or sexual violence—in childhood and adulthood—and exploitation. There is a reason why women end up substance-dependent. Incidentally, there is a reason why men do too, but the main reason why women end up substance-dependent is abuses they have suffered. It is very likely that a counterclaim that brings a woman into a custody suite will find that she smoked a few spliffs the day before. That will go against her not just in the criminal court, where she is much more likely to be convicted of those crimes than her partner, if we look at all the data on female convictions, but in the family court, where she will lose her children as a result of that evidence.
If a woman is distressed because she has just been attacked or has lived with fear and she is behaving erratically—who wouldn’t?—and somebody says, “I think she might be on drugs,” it will be used against her. On the defences I talked about, if a person commits domestic abuse and is on drugs, that will be considered a mitigating factor. I have seen it lots of times; in the most serious cases, it is the difference between manslaughter and murder. Let us flip it around: if a person murders or harms someone who is themselves on drugs, it is seen as an aggravation on their part, and they get manslaughter again. If a person kills a woman who is behaving erratically because she is on drugs, jackpot—manslaughter! If a woman takes drugs and is killed, it is a reason to give a man manslaughter. If a man takes drugs and kills someone, it is a reason to give him manslaughter. Frankly, the cards are stacked against us.
I agree with the principle of the clause, but what happens if there is a counterclaim and the woman is drug-tested and found to be on drugs and the man is not, or the other way round? Either way, there is a possibility—well, it is not a possibility, because every other law we have tried to change has been used by perpetrators; they are better than us in this regard and know their way around the system, as do their lawyers—that he will get a lighter sentence.
I wish the police were trained well enough, but only 50% are trained on coercive control, for example. We have to make sure that there is guidance so that, in cases of domestic abuse, where the woman has a potential counterclaim, these things are not taken into account; otherwise, they will be used to take her children off her—they will be used against her. I can already see it in my future. I ask that that is given some really serious thought, because I am a bit frightened about how this is going to play out.
As somebody with decades-long experience of living side by side with a heroin, crack and cocaine addict, who I am pleased to say is well now and has dedicated his life to the service of other people in that situation, I have to say that the idea that a person “has to” go to one session—it is about the compulsion—means that they are just going to go and tick a box. My mum sent my brother halfway round the world to have different interventions. They did not work. Thousands of pounds were spent trying to get somebody off drugs.
I hear what the Minister says about more money being put into this, and my brother was and continues to be part of Dame Carol Black’s review. However, there is this idea that just one interview will do the job. In reality, it is a tick-box exercise, and it will not work unless people’s initial trauma is dealt with. You would have to go a long way to see somebody with problematic substance misuse who has not suffered some form of trauma. Loads of people take drugs recreationally, and it does not harm them; they are not allergic to it and do not become problematic addicts. The reason why that happens to some people and they go on to commit crimes is that something else is wrong. One meeting will not a problem solve. If one meeting had been what it took, my mother would have died in a happier position than she did.
This proposal is not a panacea, unless we work with things such as the 12-step programme—I declare that I am on the all-party parliamentary group for 12 step recovery. The programme is completely free, so commissioners do not understand it; they do not know how to behave when no one is asking them for any money. I cannot stress enough that if this proposal is just to make a nice headline—“We are going to drug-test everybody”—rather than something that will work in reality, it is a massive waste of police time; it is pointless. I will leave my comments there.
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.
Chris Philp
I am relieved, but not surprised, to hear that. The result of these on-the-spot tests takes between 13 and 35 minutes to come back, so it is pretty quick.
I said these were so-called non-intrusive tests, and the shadow Minister asked, “What about urine samples?” To be clear, non-intrusive tests are defined in section 65 of the PACE code. That does not include urine samples but does include hair—excluding pubic hair—saliva and a swab taken from a non-intimate place, such as under the armpit. We are talking about pretty non-intrusive stuff.
Chris Philp
I beg to move amendment 32, in clause 18, page 14, line 13, after “application” insert “(including any appeal)”.
This amendment clarifies that for the purposes of clause 18(8)(b), the final determination of an application includes the determination of any appeal.
Chris Philp
The clause provides a new power for the police to seize, retain and destroy any bladed article—a knife, for example—held in private when they are on the private premises lawfully, but where they have reasonable grounds to suspect that the item is likely to be used for unlawful violence. Such knives are legal and held privately, but the police are concerned they might be used for unlawful violence.
Data shows that incidents with a knife or sharp instrument have fallen by 26% since December 2019, but it is still disturbing to see the number of cases admitted to the NHS every year—we look at NHS hospital admissions data because that is the most reliable measure of knife crime. As I say, hospital admissions for injuries with a bladed item have fallen by 26% in the last four years.
Currently, the police have no power to remove potential weapons from individuals unless those are to be used as evidence in an investigation or are subject to a ban. Even if the police come across several potentially dangerous knives while they are in a property with a search warrant for an unrelated matter—for example, a drugs charge—the only way they can legally remove those knives, even if they have reason to suspect they will be used unlawfully, would be if they were to be used as evidence in the investigation. These knives do not fall foul of the definition of knives that are inherently illegal, which we discussed in our previous Committee proceedings. We will widen the definition of illegal knives shortly via a statutory instrument, and such knives are always illegal, even if possessed in private. We are talking here about knives—a kitchen knife, for example—that will remain legal. I commend my hon. Friend the Member for Southend West for her campaigning on the issue of banning a much wider range of knives completely.
It might assist the Committee if I share a case study to illustrate the need for this measure. A police officer might be conducting a search in the residence of a male arrested for murder involving a firearm. The person might have multiple links to local gangs. A quantity of drugs might be recovered from the premises, along with a number of knives. Although there were drugs offences, if the knives found were not related to those offences, the police would have no power to seize them, even though they were found in the possession of a known criminal.
Jess Phillips
I seek clarity. There is a load of big kitchen knives on the wall in my house, and I can see them when I walk in. I deal with the issue of violence in a domestic setting all the time, but would that count?
Chris Philp
No, it would not count. For the police to exercise the proposed power, they must have reasonable grounds to suspect that the item is likely to be used for an unlawful purpose. I do not think there would be any reasonable grounds to suspect that kitchen knives hanging on the wall of the hon. Member for Birmingham, Yardley would be used for an unlawful purpose. By contrast, if the police were in the residence of a known prolific drug dealer and gang member, drugs had been recovered from the premises and they had been arrested or convicted for previous violent offences, that would be an instance where a quantity of knives—perhaps different knives beyond kitchen knives—would meet the threshold that I just set out. I hope that sets out the rationale.
In his evidence to the Committee on 12 December, Chief Constable Gavin Stephens, chair of the National Police Chiefs’ Council, said that giving the police this power is
“a very important preventive measure.”––[Official Report, Criminal Justice Public Bill Committee, 12 December 2023; c. 11, Q18.]
That is why are seeking to introduce the provision, justified in the way that I have set out. If somebody believes that their property—their knife—has been seized in error, they will be able to make a complaint to the police, as with any other police matter. In addition, we are providing a right of appeal in court to have the item returned, if the court agrees. If somebody did unreasonably seize the kitchen knives of the hon. Member for Birmingham, Yardley, she would be able to complain to the police in the first instance. If they did not address her complaint and return the knives, she would then be able to go to the court and get them returned.
It is also important to say that there is no additional power of entry associated with the new power. The police would need to be in the property lawfully, which, presumably, would also not be the case in the hon. Member’s house. For example, they would need to be there as part of an investigation into an unrelated matter or invited into the property. We will amend code B of the Police and Criminal Evidence Act 1984 to ensure that the codes of conduct reflect the new power, so that it is used in a fair and reasonable way.
Finally, amendment 32 is a minor technical amendment —we must not forget that—which clarifies that for the purposes of clause 18(8)(b), the final determination of an application includes the determination of any appeal. This provision will help the police to take dangerous knives off the street, or out of people’s houses, even if they are legal, where they are suspected of being used for unlawful violence. It is a useful additional power. The police asked for it in their evidence to the Committee, and I hope that it will command cross-party support.
Alex Norris
This provision is to some degree the less controversial—though not unimportant—counterpart to clause 19, so I will keep some of my arguments for the next debate. The Minister wants cross-party support and he will secure it on this matter. The consequences of the clause will be that if a constable is lawfully on a premises and they find a bladed or sharply pointed item that they think might be connected to unlawful violence, they can seize the article. It passes an important test, which I think about quite a lot: if I had to explain to my constituents that the reverse were true, would they think I am an idiot? In this case, I think that the test is passed. If bladed or pointed weapons that might be used for unlawful violence are found during a lawful visit relating to another purpose, they absolutely should be seized. It is in the public interest.
We will discuss this point in the next debate, but it is important that the principle of search warrants is upheld, and that they have a definition; they cannot be used for fishing trips or exploratory trips. Nevertheless, when these sorts of items are found, we must be able to take them out of use. I am interested in whether the Minister thinks there is a need for training or awareness among officers. We could apply a Phillips test quite easily: if someone has a knife but they do not have any food or a kitchen, that is probably a bad sign. That in itself is possibly not the quality of regulations a Secretary of State might wish to set, so I would be interested to hear how the Minister thinks that might work.
I am grateful for the clarity that clause 18(1)(a), which states,
“is lawfully on the premises”,
means that the power applies on any visit, for whatever purpose, whether that is a search warrant or a response call. I do not disagree with that, but it is important that we state that. It is important that it is understood. It must be demoralising for staff to visit for a certain purpose—say, on a search warrant—and then to have people there laughing at them because they cannot withdraw from circulation some dangerous weapons. I think, therefore, that the provision will be welcomed by officers as well.
Chris Philp
I will briefly reply to a couple of the questions. We propose to use the same processes already in place for property that is seized. There is a very standard form and process that the police routinely use, and the same would apply here. The hon. Gentleman asks about subsection (7), on the basis on which a court might hear an appeal, and about paragraph (b) in particular, which appears towards the top of page 14. The subsection states that the court may make an order if it appears to it that the person is the owner and that
“it would be just to make the order”.
The hon. Gentleman askes what that means. I think the meaning is that the test set out in subsection (1)(c) is met—that is to say, there are
“reasonable grounds for suspecting that the relevant article would be likely to be used in connection with unlawful violence”
were it not seized. I think the test of whether the decision to seize and retain the blade is “just” essentially refers back to the test set out in clause 18(1)(c). It would seem reasonable that if that is the statutory test that the police officer applies when deciding whether to seize the knife, one would expect the court to apply precisely the same test, and that is how, therefore, I would expect the court to apply the term “just”. I hope, should there be any ambiguity, the transcript of this answer will assist the court in interpreting the use of the word “just” in what will be section 18(7)(b).
Amendment 32 agreed to.
Clause 18, as amended, ordered to stand part of the Bill.
Clause 19
Stolen goods on premises: entry, search and seizure without warrant
Alex Norris
I beg to move amendment 61, in clause 19, page 15, line 17, at end insert—
“(8) A constable may search a specified premises for specified items without obtaining authorisation under subsection (1) if the constable believes that the search is necessary for the effective identification of stolen goods.
(9) If a constable conducts a search by virtue of subsection (8), they shall inform an officer of at least the rank of inspector that they have made the search as soon as practicable after the completion of the search.
(10) An officer who is informed of a search under subsection (9) shall make a record in writing—
(a) of the grounds for the search;
(b) of the nature of the items sought;
(c) confirming that the officer would have given their authorisation under subsection (2) had the constable sought it.”
This amendment aligns the power given under Clause 19 with that in section 18 of the Police and Criminal Evidence Act 1984, and enables a police constable to undertake a search for stolen goods without a warrant without obtaining authorisation from a superior officer.
Clause 19 is one of the more significant clauses. It introduces very significant new powers of entry, search and seizure without a warrant. That is not without controversy, as I think we will cover in the next three debates. Amendment 2, which proposed to leave out clause 19, has not been selected for debate, but it is worth noting that it received quite a lot of signatures spanning a very broad range of parliamentarians across the Conservatives, the Lib Dems and the Democratic Unionist party. Clearly, a significant range of colleagues with significantly different world views are discomforted by these provisions. That is always an interesting and important sign that we should get something right.
Again, I subject this to what my constituents think and the conversations that I have had with them in the past. So many items are now fitted with a GPS or geolocation tracker, but it is a matter of considerable frustration and no little confusion that the fact that we know where an item is does not provide appropriate grounds for a constable to retrieve it. That is deeply frustrating and, as we have seen in the explanatory notes and heard in the evidence sessions, is a problem that the clause seeks to solve.
The clause inserts into the Theft Act 1968 proposed new section 26A, which confers power on a police officer to enter and search any premises for stolen goods without a warrant. Under the current provisions in the Theft Act, a warrant would have to be issued by a magistrate before such a search could take place. Given the nature of the enterprises that pinch digital technology or expensive bikes, or that may even be stealing cars to order, we know that that delay involved could mean that our response is far too late and that the moment for retrieval, for detection and perhaps for breaking up an organised group of criminals has been missed.
Clause 19 goes on to state the parameters for the new power whereby the need for a warrant can be bypassed—namely, that a police officer of at least inspector level must authorise a constable to enter premises and search for the specified items, in this case stolen goods. It also sets out the conditions—namely, that the police officer of at least inspector level must be satisfied that there are reasonable grounds to believe that the items have been stolen, that they are on the premises and that it is not reasonably practicable to obtain a warrant without frustrating or prejudicing the search—and that authorisation can be oral or written. Again, this process seems reasonable, given that the crime that it is concerned with often involves the rightful owner having that degree of tracking information and being able to provide it to the police, showing the precise location of the stolen goods, but at present the police cannot do anything about it.
There are certain checks and oversights. A uniformed constable must conduct the search; it must happen within 24 hours of authorisation, although I suspect that such searches will take place much more quickly than that; and it must be done at a reasonable hour. Again, in principle we support these measures; without wanting to prejudge the stand part debate, I need to establish that context before I can turn to my amendment.
The current process for obtaining warrants to search properties for stolen goods with tracking information can be an inefficient use of police and magistrates’ time. It hampers investigations and allows criminal enterprises to benefit from their activities, using the slowness of the authorities to do things much more quickly, and obviously we know that that can have a knock-on effect for further crimes as well.
An interesting point was well made in the evidence session when we heard from Superintendent Nick Smart of the Police Superintendents’ Association. He challenged the Committee about why the Bill appeared to sit differently from existing powers set out in section 18 of PACE. Amendment 61, which I have tabled, sets out to probe that issue.
Section 18 of PACE allows entry and search without the prior authorisation of a more senior officer, provided that it is after an arrest and the officer has reasonable grounds to suspect that there is evidence on the premises being searched relating to the offence that has been committed, or to a connected offence. Therefore, there is precedent in current legislation for entry and search without a warrant or prior authorisation, and section 18 of PACE allows for consent to be sought afterwards, with a senior officer at the rank of inspector or above having to sign off on that, saying that they would have authorised the search if they had been there in that moment. That is also an important caveat.
Amendment 61 merely seeks to align the powers in clause 19 with similar powers in section 18 of PACE. The reason I think that would be quite helpful is that it would be more consistent from an officer’s point of view. I do not think that we would want officers to think, “Ah, am I using section 19 of the Criminal Justice Act or section 18 of PACE?” and therefore asking, “Can I, or can’t I?” The possibility for error is quite clear there.
More importantly, however, I think there would be some clarity for the public, too, because, once again, just as it would be challenging but not unreasonable to ask for officers to be very conscious of the different sections of the powers that they are using—of course they need to know that, although there are times in the heat of the moment when mistakes could happen—I do not think it is reasonable to expect members of the public to hold such things in their minds.
Therefore, consistency in the regime used is important; I think that was the point that Superintendent Smart was making, which is probably a good one. I want to press the Minister as to why that approach was not taken and why his approach is better.
Chris Philp
I very much welcome the Opposition’s support for the principle behind clause 19. As the hon. Member for Nottingham North mentioned, some people—a small number, I would add—have expressed reservations, but I am glad that we agree on the principle that the clause will help police officers to retrieve stolen goods; our constituents will welcome that. Amendment 61 aims to fine-tune the detail of how that is done. In fact, it goes a little further in its drafting than the Government are proposing. The hon. Gentleman referred to section 18 of the Police and Criminal Evidence Act 1984, noting that in some circumstances constables can enter premises without a warrant or prior authorisation from a more senior officer. He seeks to implement the same thing via his amendment.
The difference, however, is that under in the PACE provision the police must either suspect that a person is on the premises or be in pursuit of a particular person, whereas clause 19 is about stolen goods. Of course, individuals are a little more mobile than stolen goods: a stolen mobile phone, iPad or car can be moved, but that requires a person, whereas if the police think a person is in the premises, they can leg it pretty quickly. We do not need prior authorisation from an inspector under section 18 of PACE, because that relates to a person the police are after, whereas in this case we are talking about stolen goods. If the police think that there are both stolen goods and a person, the PACE provisions will apply and they can enter the premises without a warrant and without prior authorisation. The reason that we have built in the little extra step of prior authorisation by an inspector is that we are talking just about stolen goods, not about a person.
I can assure the shadow Minister that inspectors are used to authorising the use of various police powers—that is relatively routine—and inspectors are always available in each relevant area 24 hours a day, so there should not be any particular delay. We think that the clause is ECHR-compliant, and of course on the front page of the Bill there is a statement under section 19(1)(a) of the Human Rights Act that in the view of the Secretary of State, its provisions are consistent with our ECHR obligations—a topic that may be debated on the Floor of the House today and tomorrow.
It is very welcome that the Opposition support the clause in principle. I do not think that the calibration of the inspector’s prior authorisation will cause any delay practically. Because we are going after goods and not people here, I think the balance is right. While welcoming the Opposition’s support for the clause in principle, I therefore gently resist their amendment.
Alex Norris
I am grateful for the contribution from my hon. Friend the Member for Bootle. His points about human rights are really important. In this Committee, and during the Bill’s remaining stages in this place and down the other end of the building, we will have to fine-tune—I think that is the phrase he used—the balance of these provisions.
The Opposition certainly do not support routine warrantless searches, just on spec, of people’s lives, premises or property. We have to find a balance; that is why we have a warrants regime. If there are cases—I think that the clause provides us with one—in which it is reasonable to set that to one side, we must do so in a tightly defined and clearly understood way. I do not want to start the next debate prematurely, but that is very much my view, and I will be pressing the Minister further on it.
I am grateful for the Minister’s explanation, which is enough to give me comfort. It is slightly strange to hear conversation about the ECHR up here in Committee, given what we will hear downstairs on the Floor of the House this afternoon, but that is for others to debate. For the purposes of this debate, what the Minister said is a helpful caveat. What I offer perhaps would go further, and given that we are moving gently into this space, perhaps it is not wise to go the whole way. I suspect that this might have to be kept under review. The Minister talked about property not being fast-moving. Perhaps that will be tested by time, but at this point I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Peter Dowd
My hon. Friend the Member for Nottingham North has laid out the context for amendments 58 and 59 with thoughtfulness and with consideration, as he did for amendment 61. I agree with him that seeking a review within two years or thereabouts of the application of the powers is really important. It is important to ensure that when we give additional powers to the police, we ensure that the operation, implementation and use of those powers are subject to review. I think we would all agree that it would be beneficial on various levels, including operationally and in policy terms, to step back after a period of time and take a look at the implementation of the powers.
Notwithstanding the fact that my hon. Friend has described the powers as narrow, people will not be used to them. Let us say that in the first five or six months of last year, there were about 50 or 60 bike thefts in my constituency and that half of those bikes had a locator on them. Although they may have a “stolen” bike in their home, people are not used to the police just turning up, going into the shed and getting the bike, so we must explain why we are doing that. It is important to have a review after a couple of years to ensure that my constituents know that they will not be on the receiving end of a disproportionate intervention by the authorities. I have no reason to believe that the powers will be used indiscriminately or outside the spirit of our discussions today, but we live in a democracy and we want to live in a cohesive society, so it is important that we have checks and balances. A review after a couple of years, to ensure consistency, is important.
I agree with amendment 59, which would require the College of Policing to produce a code of practice in relation to the use of the powers. The College of Policing often talks about using
“evidence-based knowledge in everything we develop”.
That is crucial, so I am sure that it would welcome my hon. Friend’s proposal. It is important that the modus operandi of the police officer or constable be guided by authorised professional practice guidelines, which the College of Policing has, to ensure that their interventions are as appropriate as possible. That is all the more important in the light of the challenging circumstances in which some powers will be used. As I have indicated, the College of Policing is already well versed in the production of codes of practice, including—to name just a couple—those on the use of the police national computer and the law enforcement data service and on armed policing and the use of less lethal weapons.
I hope that the Minister will give careful consideration to the points that my hon. Friend the Member for Nottingham North and I have made about the amendments. As my hon. Friend says, if the Minister will not accept the amendments, we ask him for an assurance that the spirit of them, if not the letter, will be included in the Bill. I know that the Minister is always equitable in these matters, and I am sure he will give careful consideration to the well-thought-out and considered views expressed by my hon. Friend.
Chris Philp
Let me respond briefly on amendments 58 and 59. Amendment 58 asks for review. Members of the Committee will know that review and scrutiny of statutory powers happens on a regular basis. The Home Office collects and publishes more data on the use of police powers than it ever has before. There are plenty of opportunities for Members to scrutinise the use of powers both via written questions, oral questions, the Select Committee, and so on and so forth, but critically the normal post-legislative review of the Act will happen three to five years after Royal Assent, as is usual. The scrutiny of how this works in practice will happen through those mechanisms, particularly through the post-legislative review that always happens three to five years after Royal Assent. A range of scrutiny mechanisms exist beyond that. The police are not under-scrutinised.
On amendment 59, I am pleased to confirm to the Committee, particularly the shadow Minister, that we intend to update PACE code B, which covers police powers of entry, search and seizure, to give a clear statutory guide—even stronger than the College of Policing’s authorised professional practice—on how best these powers should be used. Under section 66 of PACE, there is a requirement for us to do that. We are of course happy to do it, but we do not actually have any choice; it is a statutory requirement under section 66. That will include the new powers covered in clause 19 of the Bill. We will work with the college to ensure that any supplementary guidance it issues on these new powers reflects the wording of updated code B, but updating code B is compulsory; we have to do it. It is statutory, and I can confirm that we will comply with our statutory obligations. I hope that addresses the issues raised by amendments 58 and 59.
Alex Norris
I am grateful for colleagues’ contributions. My hon. Friend the Member for Bootle raised a couple of points. We must always hold in our head how things will operate in practice. What is in the Bill is in the Bill but often what happens in that moment—perhaps a moment of challenge or conflict at 11.30 on a Friday night—can feel very different from what is in the Bill. We ought to hold practical operations in our head, which is what we have been seeking to do.
The Minister addressed my hon. Friend’s point about stepping back and scrutiny to some degree, which was very welcome. I feel a certain degree of risk saying in an election year—obviously, I aspire to swap places with the Minister by, say, this time next year—that this may come back with a degree of interest. In this place in general, we are getting better at pre-legislative scrutiny, but I do not think that has been the norm. Notwithstanding what the Minister said about post-legislative review, I do not think that we do that very well, certainly not in Parliament. In fact, it is largely something we do not do.
We are lawmakers, and the temptation to make law and fill the parliamentary time will always be there, but very rarely do we go back and ask of something we tried three to five years ago, “Did it work? And if it didn’t, why? Did we need to do more law? Was it right to have done this by regulation rather than primary legislation?” It could be that people like me, who by nature are perhaps more interventionist than other colleagues in the room, might think, “Perhaps that was the wrong time to intervene.” It is about all those things. I do think we do that process very well, because we basically do not do it at all.
I have a degree of confidence. I am grateful for what the Minister said about post-legislative review, but I suspect that will be more of a departmental and less of a public exercise. There is something about being willing to own our errors in our proceedings that is good for public confidence—when we are willing to do it. On that basis, I am happy to withdraw my amendment.
Similarly on amendment 59, what the Minister has offered in lieu on PACE code B is better than my proposal, so that is a very good deal indeed. On that basis, I am happy and willing not to press my amendment.
Perhaps the Minister, being a diligent student of Parliament, is saving his powder for the stand part debate, which is probably right given the gusto with which I entered the stand part debate during the debate on amendment 61. I really hope to hear in the stand part debate clarity from the Government that this is seen as a tightly-defined variation of the search warrant regime under a very tightly-defined set of circumstances. We have not yet heard that. We are about to debate the clause, and although I dare say we have covered most of it, so it may only be a short debate, we really need to hear that message.
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Chris Philp
We have touched on many of these issues already, so I will not speak at great length on clause 19 stand part. Suffice to say, our constituents expect the police always to follow up leads where they exist, particularly to retrieve stolen goods, whether mobile phones, e-bikes, cars or whatever it may be. As members of the public and as parliamentarians, we expect the police to always follow those leads. Just a few months ago, the police made a national commitment to do precisely that. An important part of that is the ability to retrieve stolen goods where their location is known or reasonably suspected. With technology now, many items—mobile phones, cars, and so on—have tracking devices, and the public are rightly frustrated if the police do not always follow them up.
This power enables the police to respond quickly to retrieve stolen goods where they have reasonable grounds to believe they know the location. Quite often, those stolen goods move very quickly indeed. For example, the thief may take them off to sell them, and therefore there is often not enough time to go through the process of getting a warrant. The police may want to act in a manner of minutes or hours. In investigatory principles, there is the concept of the “golden hour”, talked about by Chief Constable Andy Marsh, now chief executive of the College of Policing. That first hour is really important. Even the best magistrates court in the world will not be able to respond in an hour to authorise a warrant, but a phone call to an inspector can be done within that golden hour. That is why we are making these changes.
This is only one part of the police commitment to always follow all reasonable lines of inquiry. For completeness, I will mention the use of facial recognition technology. Where there is a photograph of somebody committing a crime on CCTV, Ring doorbell, dash cam, or someone’s phone, we expect the police to always run that through the facial recognition database, but that is a separate element of their commitment.
It is important to ensure these stolen items are recovered. It is more than irritating to our constituents when the police do not always follow them up. This legislation will give them the power to act quickly and decisively where needed, and I think it is balanced and proportionate. Historically, we have required warrants—unless the police are in pursuit of a particular individual, as we debated previously—but we think this strikes the right balance.
On the commitment the shadow Minister asked for around the scope of this provision, the circumstances in which this power can be used are clearly set out on the face of the Bill. I draw the attention of the Committee to clause 19(2); subsection (2) of proposed new section 26A of the Theft Act 1968, sets out very clearly when this power can be used. The conditions are that there are “reasonable grounds to believe” that, first,
“the specified items are stolen”,
secondly, that
“the specified items are on the specified premises”,
and thirdly, that
“it is not reasonably practicable to obtain a warrant…without frustrating or seriously prejudicing its purpose”
—that is, a concern that the goods may be moved on before a warrant can be obtained.
The scope of this power is very clearly defined on the face of the Bill, and I think strikes the right balance. The evidential test the police have to meet is that they have reasonable grounds to believe that those three things are met. The wording uses the formulation “and”, so it is not just that any one of them have to be met; all three have to cumulatively be met before the provisions of this clause are engaged. There is a very clear need for this provision, as it will help police to recover stolen goods. The public will welcome it, and it is very clearly defined in clause 19(2).
Chris Philp
I will do my best to conclude prior to 11.25, when the Committee might consider adjourning.
Clause 20 and schedule 3 create a new power for UK law enforcement and other investigative agencies to suspend IP addresses and domain names that are being used in serious crime. Under the power, law enforcement will be able to apply for a court order requiring the organisation responsible for providing the IP address or domain name to prevent access. Sadly, we have all too often seen that criminal actors use domain names and/or IP addresses to carry out crime including fraud and malware dissemination, targeting the vulnerable. When IP addresses and domain names are being used to conduct criminal activities, law enforcement agencies need to be able to block access, preventing the crime occurring.
In the UK, the police and other law enforcement agencies currently use public and private partnerships, and industry will, in the majority of cases, voluntarily suspend domain and IP addresses used for criminal purposes. This has led to the UK being generally one of the safest jurisdictions in the world. However, voluntary suspension is not an option in all cases. In particular, the majority of cyber-crime emanates from outside the UK, where the same voluntary arrangements are not available. Quite often, internet infrastructure providers based overseas will only take action when a court order is handed down. This measure will provide for such a court order to be obtained. Overseas infrastructure providers are much more likely to comply with a court order than a simple request made by the police without a court order.
We reviewed the Computer Misuse Act 1990 in 2021. As part of that, we invited views from stakeholders. Responses indicated that although much of the 1990 Act remains effective, more could be done in cases where the UK wants to take action against offences committed from overseas. The main function of these provisions is to ensure that UK law enforcement and certain investigative agencies can act to suspend IP addresses and domain names where they are being used for criminal activity with a link to the UK. Schedule 3 enables UK law enforcement agencies listed in paragraph 12 of the schedule to apply for a court order, which they can serve on entities based outside the UK.
Carolyn Harris (Swansea East) (Lab)
Will this apply to illegal gambling sites and crypto casinos? Will the Gambling Commission have the authority to have these addresses pulled down?
Chris Philp
If illegal activity were taking place, which would include illegal gambling, then the provisions of the clause would apply. As to whether the Gambling Commission can make the application or whether it would have to be the police, to answer that question we will have to refer to schedule 3 on page 91 and look at the list of entities. The hon. Member will see that paragraph 12(2)(e) does include
“a member of staff of the Gambling Commission of at least the grade of executive director.”
Indeed, paragraph 12(1)(a)(v) also expressly references the Gambling Commission, so I hope that answers the question about the Gambling Commission’s powers. I obviously prepared that in advance, anticipating her question—as Members of the Committee could surely see!
That is very helpful and will strengthen our hand with overseas entities that might not respond to a polite request but are willing to act when there is a court order. I hope that is something that we can all get behind. It will help protect our constituents from online crime, particularly fraud, but other forms of illegal activity, including illegal gambling. I pay tribute to the hon. Member for Swansea East for her work combating gambling harm, which I saw at first hand during my time as Minister for technology and gambling a couple of years ago.
Alex Norris
Given the time left in this sitting, I thought there was a degree of optimism when the Minister stood up on a matter related to some degree to illegal gambling and thought it would be quick; I will try to bring my remarks in under the wire, but I may fail, when I assume I will be cut off in my prime.
Much of our discussions so far have had a digital and online dimension: the sale of knives and bladed articles, the posting of intimate images, the sale of stolen goods, and the digital online element of fraud. This is a very live, shape-shifting part of the debate. It was feature of the Online Safety Act 2023 discussions and is an important part of this Bill. Our basic principle is that we must give our police and broader enforcement agencies the best tools possible for them to stand half a chance of keeping up. This clause and schedule 3 fit with that approach and, as such, we support them.
For all the creative and direct uses that criminals can exploit modern technology with, there remains a basic staple: a website, a domain name and an IP address. That can be used in a variety of ways: selling illicit goods, selling stolen goods, pirating live events, pirating software or content, scamming or illegal gambling. It is right that enforcement agencies can close such sites down. Although this is a modern venture, I suspect it is today’s version of the 1975 classic Whac-A-Mole, as we chase scammers, fraudsters and thieves around the internet. I dare say that is frustrating but it is important for enforcement agencies to do.
The provisions in the schedule allow for the suspension of IP addresses and domain names for up to 12 months, following an application to a judge. In doing so, four criteria must be met. Three are relatively simple: condition 1 is that the address or domain name is being used for serious crime; condition 3 is that it is necessary and proportionate to shut the site down to prevent crime; and condition 4 is that the address or domain name would not be shut down by another route. The industry picture can be good, as the Minister says, but I do not think it is always good. That is the nature of the type of crime. We talked previously about pirating a premier league game—that would go pretty quickly. If the site is hosting an intimate image that was unlawfully obtained, that tends to take an awful lot longer, or indeed does not happen at all; that point has been debated.
Conditions 1, 3 and 4 seem clear to me, but I want to press the Minister on condition 2. That is met under four scenarios, although I believe the use of the word “or” means any one of the four scenarios, including,
“(a) that a UK person is using the IP address for purposes of serious crime”,
which is very similar, if not the same, as condition 1. The other scenarios are: (b)—that a UK person is a victim of the serious crime that the site or domain name is used for; (c)—that the IP address is being used for unlicensed gambling, which goes to the point made by my hon. Friend the Member for Swansea East; or (d) —the IP address is allocated to a device located in the UK. I think only one of those four tests needs to be met in order for condition 2 to be met. Given that (a) is essentially the same as condition 1, but with the proviso that the person is UK based, how does that operate in practice? Is that not a degree of duplication? The Minister can mull that one over while having his lunch.
I will move on to the heading
“Inclusion of non-disclosure requirements in suspension orders”.
As in the Bill, as part of a suspension order, a judge can require that the individual deprived of their domain name or IP address does not tell anyone that that has happened to them.
Chris Philp
Main Page: Chris Philp (Conservative - Croydon South)Department Debates - View all Chris Philp's debates with the Home Office
Criminal Justice Bill (Tenth sitting)
Chris Philp ExcerptsThursday 18th January 2024
(10 months, 2 weeks ago)
Public Bill CommitteesRead Full debate Criminal Justice Bill 2023-24 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 18 January 2024 - (18 Jan 2024)
The Chair
With this it will be convenient to discuss the following:
Amendment 62, in schedule 4, page 119, line 18, leave out paragraph 25.
This amendment would remove the risk of dissipation as a condition for the making of a restraint order.
Schedule 4.
The Minister for Crime, Policing and Fire (Chris Philp)
As always, Dame Angela, it is a pleasure to serve under your chairmanship.
Clause 32 introduces schedule 4 to the Bill, making reforms that are more than technical: they are significant reforms to the confiscation regime in part 2 of the Proceeds of Crime Act 2002, to which I suggest we refer henceforth as POCA. That Act was passed over 20 years ago. The measures that we are introducing apply only to the regime in England and Wales contained in part 2 of POCA; there are separate confiscation regimes that apply in Scotland and Northern Ireland in parts 3 and 4 of POCA respectively. We are discussing with the Scottish Government and the Northern Ireland Department of Justice whether the reforms introduced by the Bill should also be applied to the regimes in Scotland and Northern Ireland. If they so wish, no doubt there will be amendments in due course.
In 2018, the Home Office commissioned the Law Commission of England and Wales to review the confiscation regime and make recommendations. The commission’s report was published just over a year ago, in November 2022. It contains 119 recommendations, which have shaped the measures we are introducing in this Bill; essentially, we are implementing the Law Commission’s recommendations.
Reform is necessary to ensure that the confiscation regime operates as efficiently and effectively as possible, prevents criminals from retaining the ill-gotten gains of their criminality, and makes it clear to offenders and victims that crime does not pay. We will achieve that in schedule 4 by streamlining processes, creating realistic confiscation orders and expediting enforcement.
The Government have consulted extensively on the measures for reform, which benefit from over 20 years of operational insight. These reforms will support the delivery of key objectives in the economic crime plan 2 and the fraud strategy to reduce money laundering and increase asset recovery. The 10 parts of schedule 4 contain a number of reforms, which, broadly speaking, do what I have set out; I would of course be happy to go through them in detail should any Committee member so wish.
I note that the hon. Member for Nottingham North has tabled amendment 62. I propose to respond briefly to that amendment once the hon. Gentleman has spoken to it.
Alex Norris (Nottingham North) (Lab/Co-op)
It is a pleasure to see you in the Chair, Dame Angela. I rise to speak to amendment 62.
Clause 32 and the weighty schedule that it introduces deal with confiscation orders and the regime that governs them. As the Minister says, they are not technical; they are substantial and important. It is safe to say that it is a matter of unanimity across the House that where people are convicted who have benefited, and in many cases made huge sums, from crime and its attendant misery, that money should be recovered from them where possible. Convicted criminals should not make out ahead as a result of their crimes. They should always know that that is what we believe in this place—perhaps they should have priced it in as a cost of doing business that they will not benefit from the misery that they bring.
It is no great surprise that we believe strongly in the Proceeds of Crime Act 2002, but it is important to ensure that it remains effective, two decades on, and that gaps are closed wherever they may exist. The Law Commission work commissioned by the Home Office was very valuable. Its 119 recommendations will help us to improve the process by which confiscation orders are made, ensure that orders are made realistic and proportionate, and improve the enforceability of orders. Those are noble goals, and we are grateful to the commission for its excellent work. We welcome and support clause 32 and schedule 4.
There is only one small change that I would suggest, and I am interested in the Minister’s views on it. I am grateful that he is letting me make my case first; sometimes with groups of amendments we get the case against what we are about to say before we have said it, which always seems a little unkind. I would like to see what he thinks about my amendment 62.
The Committee took evidence from Kennedy Talbot KC that dissipation was a material factor in delaying or preventing restraint orders. He suggested that we take it out. His evidence was of great interest:
“I am sure that the Committee is familiar with the power for the court to make restraint orders preventing people who are suspected of crime, and then charged with crime, from dealing with their assets. At the moment, a statutory proposal in the Bill is that the risk of dissipation factor—such risk needs to be established for an order to be made under case law, not under statute—should be specified. The answer, in my view, is to scrap the risk of dissipation, so that it is not a requirement.
In many cases, what prevents prosecutors from applying for restraint orders is that they feel they cannot meet that test. Normally, that is because the case is brought to them some time after an investigation first started. The defendants are often aware that they are being investigated, and the case law more or less establishes that unless you can show that a defendant is on the point of selling his house or moving £100,000 to the UAE or whatever it may be, you cannot get a restraint order. Scrap the risk of dissipation.”––[Official Report, Criminal Justice Public Bill Committee, 14 December 2023; c. 102, Q44.]
The challenge put to us by Kennedy Talbot KC is that although the risk of dissipation factor is well meant and was designed to find a fair balance as to effectiveness and proportionality between the individual and the collective, it is acting as a perverse incentive not to pursue confiscation orders or pursue assets. I do not think that that is what we want.
I must say, my amendment is possibly not the most elegant way of making that a reality. It would simply delete paragraph 25 of schedule 4, which relates to the risk of dissipation. There may be—in fact, there doubtlessly will be—other ways in which that could be done, and we would be very interested in that.
I am interested in what the Minister has to say in response because, if he is not willing to accept my amendment, I think it is incumbent on him to say whether he shares Kennedy Talbot KC’s concern. If he does, how else might we clear that test? But if he does not share it, why not, because that seemed a pretty reasonable point to me?
On Scotland and Northern Ireland, the Minister pre-empted a question that I was going to ask. This seems like another area where a four-nations approach would be desirable, so that there are no parts of the Union where someone is treated differently, or where it is better to base oneself to exploit differences in regimes. The Government have tabled an awful lot of amendment for this Committee stage. I would hope and expect them to slow down that approach over the rest of this Bill’s stages—in this and the other place—but we would very much welcome it, and they would have nothing to fear, if they tabled an amendment. Perhaps the Minister will say whether any further conversations are planned. Clearly, very effective conversations have taken place on the rest of the Bill, but I wonder whether conversations on this have ground to a halt. Could the Minister tell us whether this is an ongoing process?
Chris Philp
I will first respond to the questions about amendment 62, to which the shadow Minister just spoke. I agree with the concern that he is raising. We must ensure that the barrier is not set too high, and that these orders can be made so that, where there is a risk of dissipation, the assets can, essentially, be placed under control so that they cannot be sold—or “dissipated”, as the Bill puts it.
As the hon. Gentleman said, there is already case law that the court has developed. It cannot be done arbitrarily. The court is essentially freezing someone’s assets, or preventing them from disposing of them at least, and there should be some sort of test before that draconian—but, of course, sometimes necessary—step is taken. That is currently in case law; all we are doing here is putting it on to a statutory footing. Law enforcement partners have welcomed that, because it provides clarity where currently there is simply case law.
Therefore, the Committee could reasonably ask itself whether the way in which this is drafted is reasonable and whether the test is set at the right level. The relevant part is part 8 of schedule 4, which starts at line 18 of page 119 and sets out exactly what the test is. As we would expect, the first test is that the first to fifth conditions in this section of POCA already apply. Secondly, the critical phrase is in paragraph 25(2)(a):
“there is a real risk that relevant realisable property”—
meaning stuff that someone can sell—
“held by any person will be dissipated unless the Crown Court exercises the powers”.
Therefore, the test is set as there being a real risk that the relevant property may essentially be sold off. That is where the threshold is: “a real risk”.
Chris Philp
I will in just one moment. Then, to determine whether there is a real risk, the schedule sets out towards the end of page 119 what the court may have regard to. That includes the nature of the property and the extent to which steps have already been taken, which is only one consideration, not a determinative consideration. Other items include the circumstances of the person and evidence of their character, which means that, if they are a crook, the court would take extra care. It would also have regard to the nature of the defendant’s criminal conduct. Are they a fraudster? Are they into money laundering and moving cash around? It will also take into consideration the amount of money involved and the stage of proceedings. Presumably that means that the further advanced the proceedings, the more sensitive the court will be. None of those different factors is individually determinative, but they should all be considered. On page 119, line 24 of the Bill, schedule 4 inserts in the Proceeds of Crime Act 2002 the critical phrase,
“there is a real risk”.
I would be interested to hear the shadow Minister’s view on that point, and not on any other points he may wish to intervene on.
Alex Norris
The Bill defines many terms, and I hope that “crook” will become one such term at a later stage. It is a great phrase.
In previous debates, the Minister has said that putting things on the record may be valuable to future court interpretation. What I am hearing from the Government is a clear message that by “risk of dissipation”, we are talking about not acts of or in the throes of, but a much broader definition. That would be enough comfort to me on my amendment.
Chris Philp
Yes, I am very happy to give the shadow Minister that assurance and to state clearly on the record in Hansard that that is the Government’s intent, and I think it is also the Committee’s intent—I can see waves of agreement rippling around Committee Room 10. We do intend for this to be applied widely. This does not just mean that an asset is on the cusp of being sold; it is much wider than that. It means that any real risk that property might be sold should engage the provisions of this clause, and the judge should have the confidence and, when this is passed, the statutory basis to make that order. The shadow Minister is absolutely right that there is cross-party agreement that this should be quite widely interpreted by the courts, should it be passed. I absolutely put on the record what he was saying.
On the shadow Minister’s other question, discussions are ongoing with the devolved Administrations. We would be very happy to extend these provisions to them. As he said earlier, it is much better that these things are done on a UK-wide basis. We the UK Government are certainly engaging constructively. I am hoping to have more to say on Report. If those jurisdictions want to take up these provisions, I expect there will be an amendment on Report, but it would obviously require their agreement. That is certainly something we would want to facilitate.
Question put and agreed to.
Clause 32, as amended, accordingly ordered to stand part of the Bill.
Schedule 4
Confiscation orders: England and Wales
Amendment made: 49, in schedule 4, page 96, line 21, at end insert—
“(4A) After paragraph 9B (inserted by sub-paragraph (4)) insert—
‘Offences relating to things used in serious crime or vehicle theft
9C (1) An offence under section 1 of the Criminal Justice Act 2024 (articles for use in serious crime).
(2) An offence under section 3 of the Criminal Justice Act 2024 (electronic devices for use in vehicle theft).’” —(Chris Philp.)
This amendment adds the offences created by clauses 1 and 3 of the Bill to the offences listed in Schedule 2 to the Proceeds of Crime Act 2002 (criminal lifestyle offences).
Schedule 4, as amended, agreed to.
Clause 33
Suspended accounts scheme
Question proposed, That the clause stand part of the Bill.
Chris Philp
Clause 33 and schedule 5 will enshrine in law a power for the Secretary of State to create a suspended accounts scheme, with details to be set out in regulations. The scheme will allow financial institutions, such as banks and building societies, to transfer to a Government-appointed scheme administrator amounts equivalent to the balances of customer accounts that have been suspended based on suspicion of criminality. These funds would then be used to finance projects relating to economic crime.
As part of its commitment to tackling economic crime, alongside its legal obligations—for example, to combat money laundering—the financial sector has been suspending customer accounts where it suspects criminal activity. Where practicable, our law enforcement agencies will then investigate such criminality. However, it is not always possible for law enforcement to investigate the alleged criminality to the point that a conviction can be secured, for a variety of reasons, including where the source of the funds and the owners cannot be identified, especially where techniques designed to obfuscate the funds’ origins or ultimate beneficial ownership have been deployed. As a result, quite a lot of money remains suspended across industry. From a survey conducted with the financial sector, it is estimated that it currently holds £200 million of suspected criminal funds in suspended accounts and that a further £30 million a year could be suspended in the future. There is currently no way to access those funds; they simply remain suspended.
This scheme presents an opportunity to leverage our world-class public-private partnership to extract the money that is currently suspended and to invest it in measures to combat economic crime. I am sure that we can all get behind that opportunity. We worked closely with industry partners on developing this measure and consulted with them. We held targeted stakeholder engagement to test the proposals, and they are broadly supported. I am grateful to the stakeholders for the work they have done. I think that this is quite a sensible measure: it will get more cash out of suspended accounts, where it is not doing any good, and into combating economic crime for the benefit of all of our constituents.
Alex Norris
It is absolutely right that we do that, Dame Angela.
The clause and the schedule govern suspended bank accounts and, more pertinently, what happens to the money in those accounts. We should say on the record that it is right that banks are vigilant to the possibility of fraudulent activity and, when they suspect that it is taking place, that accounts are suspended. We know that that sort of regime and the culture of the industry have changed significantly in recent years. We could argue that there is a commercial disincentive to doing that, but banks clearly understand that being a trusted part of a system that does not want fraudulent activity or to have money washing around is good for everybody. That work and its creative use should be recognised, because, as the Minister says, if we held strictly to a criminal standard, there would be all sorts of reasons why that money would not be stopped. We know that good uses of terms and conditions for holding an account have been employed by the industry, which is welcome.
It is important to have a suspended account scheme in place so that those funds have somewhere to go. We support this clause and schedule. Earlier this week, I was getting very excited about the use of regulations rather than putting things in the Bill. This is a case where that is the right approach, and we look forward to good engagement while that is being developed.
Paragraph 114 of the explanatory note says:
“For the past…15 years, organisations in the financial sector (and to a lesser extent in other parts of the Anti-Money Laundering Regulated sector) have been suspending accounts and transactions where criminality is suspected. Organisations have been doing so on a private law basis taking into account their terms and conditions and threat analytics.”
Clearly, this has been going on for a while, and we are now catching up with a regime so that we can give some shape for releasing that money. It is sensible that the funds have somewhere to go, and of course we would support the purpose of that money being to go back into tackling economic crime. That is a good, virtuous loop.
I hope that the Minister will address this. We know that there has not been a scheme to release this money. Are we to understand from that paragraph of the explanatory note that there are 15 years’ worth of suspended funds just sat there? I do not see anything about that in the Bill, and I wonder whether the Minister can make it clear whether he anticipates there being anything in regulation that would mean that funds that predate the legislation would be out of scope of the scheme. I do not read anything about that in the Bill; as I said, my reading is that they are in. That gives rise to a very obvious question: how much money is there? That will be an issue of great interest for colleagues.
The beginning of schedule 5 says that financial institutions “may” take part in this scheme. I wonder whether the Minister got a sense from the consultation responses and the conversations that he has had with the industry of how widely he expects financial institutions to participate in the scheme and of whether there is a degree of risk—or any anxiety in the Home Office about there being a degree of risk—of displacement to financial institutions that are known not to take this action. Again, I suspect that most of the major players are doing this activity and therefore would wish to be part of it. I would be interested to know how widespread the Minister expects take-up to be.
It is right that there is a compensation mechanism for individuals who have their fund suspended and taken away, because mistakes can and doubtlessly will be made in this sort of scheme. Paragraph 5(1)(c) of schedule 5 governs that this ought to be part of the regulations, and we support that. I presume that that would be a liability against the scheme in its aggregate. Paragraph 5(2) states that it is possible to cap the amount of compensation money that the scheme can pay an institution. What is the reason for that? Clearly, there are institutions that are not being careful, so I presume that the measure covering the money they pay to the scheme is an incentive for them to be more careful in how they handle and freeze accounts. However, is there not a risk that shareholders or executives decide to cap the contribution at the compensation sum, so that they do not inadvertently create a liability on their balance sheet? The Minister might say that that will be covered by regulations, but there is nothing in the Bill to say that once a financial institution is part of the scheme, it must always be part of it, or that, for every account it suspends, it must send all of the money, in full, to the suspended accounts scheme.
The Government may not know the answer to that yet, but they must have thought about it because they have set up a compensation cap. If someone has had their account frozen incorrectly and they have not engaged with it for a number of years, that money is going to a suspended accounts scheme. If they then come back and say, “Hang on a minute, I’d like my money back,” it is not unreasonable—in fact, it is very reasonable—to think that they should get it back in full. The Government have chosen to cap that. That might be because they want to encourage good behaviour, but I am keen to get an explanation from the Minister. I really look forward to having, hopefully to a pounds and pence level, a sense of how much he thinks will go into this scheme when it is opened on day one.
Chris Philp
I mentioned this in my introductory remarks. It will apply to all the balances currently held, which includes all those balances accumulated over the last 15 years. The estimation is that that adds up to £200 million. We estimate that the inward flow each year will be £30 million or more. I hope that gives the shadow Minister a sense of the quantum.
We expect wide take-up across the whole financial services industry. Obviously, financial institutions are already suspending accounts, to the tune of £200 million up to date and, we think, £30 million or more a year going forward. Our engagement suggests that there will be wide take-up.
On the shadow Minister’s point about the limit to the compensation, the last words of paragraph 5(2) of schedule 5 are “in any period”, which I presume is to ensure that the scheme remains solvent. He is right to say that any compensation will be paid from inside the scheme and not subsidised by the wider taxpayer, so it will be internally financed, not creating any wider financial liability. It may be the case that, if there is one big claim, the “in any period” caveat would allow for the compensation to be paid over more than one period.
The shadow Minister also asked whether this might inadvertently create a perverse incentive for financial institutions to only make transfers up to the limit of the cap. Clearly, where that cap is set requires some thought. That is a very good question to dig into when these regulations are brought forward and debated. I will make sure that colleagues in the Home Office designing these regulations do so with that concern in mind. When we bring the regulations back, the shadow Minister or his colleagues can have a look at how that is designed. He has made a good point, and we will make sure it is reflected in the way in which the regulations are designed in due course.
Question put and agreed to.
Clause 33 accordingly ordered to stand part of the Bill.
Schedule 5 agreed to.
Clause 34
Electronic monitoring requirements
Chris Philp
I beg to move amendment 84, in clause 34, page 27, line 16, at end insert “and Northern Ireland”.
This amendment and amendments 85 to 88 provide that a serious crime prevention order made in Northern Ireland may include electronic monitoring requirements.
The Chair
With this, it will be convenient to discuss the following:
Government amendments 85 to 89.
Clause stand part.
Government amendments 90 to 108, 110 to 113, 115, 118, and 120 to 132.
Chris Philp
I have about 10 minutes on each amendment, if that is all right. [Laughter.] No?
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.
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.
Chris Philp
The clause amends the Serious Crime Act 2007 to provide additional agencies with the power to apply directly to the High Court for a SCPO. The High Court can already make an SCPO upon application by the Crown Prosecution Service and the Serious Fraud Office, as well as by the police in terrorism cases. However, as we have heard already, these orders are not being used to maximum effect. In the 10 years between 2011 and 2021, only two applications were made to the High Court for an SCPO in the absence of a conviction, of which only one was successful.
The clause extends the power to make applications to the High Court for an SCPO to other agencies, particularly the National Crime Agency, His Majesty’s Revenue and Customs, the police in all cases, the British Transport police and the Ministry of Defence police, so that many more law enforcement agencies can use it. The clause also sets out who is authorised to make those applications, and it streamlines the process for doing so, in the hope that that will encourage more applications. In many cases where criminal proceedings cannot be pursued, those agencies will be best placed to lead the process of applying for an SCPO as they will have in-depth knowledge of the case and subject matter expertise.
The CPS is responsible for evaluating the merits of an application to ensure that an SCPO is not being used inappropriately as an alternative to prosecution, and it can intervene if it thinks prosecution would be more appropriate. In recognition of this role, the agencies being given the right to apply directly to the High Court will be required to consult the CPS before making an application. It will be for the law enforcement agency that applied for the SCPO to monitor and enforce it once it is imposed on the individual concerned.
The clause also extends to those additional agencies the power to submit a petition to the court for the winding-up of a company or partnership. A petition can be submitted only if the body has failed to comply with the terms of the SCPO and it is in the public interest for the body to be wound up.
In summary, we hope that extending the range of law enforcement agencies that can apply for an SCPO will, when combined with the other streamlining measures, help to encourage more applications. I commend the clause to the Committee.
Question put and agreed to.
Clause 35, as amended, accordingly ordered to stand part of the Bill.
Clause 36
Notification Requirements
Amendments made: 107, in clause 36, page 33, line 35, at end insert “and Northern Ireland”.
This amendment and amendments 108 and 110 to 113 make provision for notification requirements by persons other than individuals who are subject to a serious crime prevention order in Northern Ireland.
Amendment 108, in clause 36, page 33, line 38, after “Wales” insert “or Northern Ireland”.—(Chris Philp.)
See the explanatory statement for amendment 107.
Chris Philp
I beg to move amendment 109, in clause 36, page 33, line 39, leave out from second “the” to end of line 40 and insert
“first day on which any of its provisions comes into force—”.
This amendment adjusts the time period within which a notification under section 15A(1) must be made.
The Chair
With this it will be convenient to discuss the following:
Government amendments 114 and 116.
Amendment 69, in clause 36, page 35, line 2, at end insert
“or, where the person is in custody, within three days of the day on which the person is released from custody,”.
This amendment would mean that, where a person in custody is made subject to a serious crime prevention order, the three day time period within which they must notify the police of notifiable information does not start until the day they are released from custody.
Government amendments 117 and 119.
Clause stand part.
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.
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.
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.
Chris Philp
I thank the hon. Member for her question. She has anticipated the fact that that data is not immediately at my fingertips, but I would be happy to provide her, by way of follow-up correspondence, with the data that she has just requested.
In relation to monitoring, which I think the shadow Minister asked about, there will be post-legislative review, three to five years after Royal Assent, that will check up on progress and how this is being used in practice. We do want to ensure that it is properly used, in the sense that it is applied to all the cases where it could protect the public. The hon. Member for Birmingham, Yardley is, I think, right to highlight the risk that it might not be used as frequently as it should be, so we need to ensure that the Crown Prosecution Service, the barristers who are presenting these cases before the court, and the court itself—Crown court judges—are fully informed about this power once we pass it.
Of course, being able to issue an SCPO at the point of acquittal—there and then, on the spot—is much easier than having to make a separate application to the High Court, which I can imagine might get forgotten about, so this should result in a much larger number of SCPOs: the judge can do it on the spot, on acquittal, having just heard all the evidence, and without the need for a whole separate application and process in the High Court to be gone through. But we should definitely monitor the situation to ensure that the power is actually used. I think that probably answers the points that have been raised.
Question put and agreed to.
Clause 37, as amended, accordingly ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Scott Mann.)
Criminal Justice Bill (Eleventh sitting) Debate
Full Debate: Read Full DebateDepartment: Home Office
Chris Philp
Main Page: Chris Philp (Conservative - Croydon South)Department Debates - View all Chris Philp's debates with the Home Office
Criminal Justice Bill (Eleventh sitting)
Chris Philp ExcerptsTuesday 23rd January 2024
(10 months, 1 week ago)
Public Bill CommitteesRead Full debate Criminal Justice Bill 2023-24 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 23 January 2024 - (23 Jan 2024)
The Chair
Before we begin, I have a few preliminary announcements. Members should send their speaking notes to hansardnotes@parliament.uk. Please switch electronic devices to silent. Tea and coffee are not allowed during sittings.
The Minister for Crime, Policing and Fire (Chris Philp)
On a point of order, Sir Robert. I am sorry to interrupt the proceedings, but I had a discussion with the Opposition Front Benchers, and we wondered whether—with your consent—we might start this afternoon’s session at 3 o’clock rather than 2 o’clock. I have consulted the Clerk but, of course, wanted to get your consent first.
Alex Norris
It is a pleasure to serve with you in the Chair, Sir Robert.
Clause 38 brings us to the provisions that concern nuisance begging. This clause, and subsequent clauses on homelessness, are closely tied to the repeal of the Vagrancy Act 1824 by the Police, Crime, Sentencing and Courts Act 2022. The 2022 Act will repeal the Vagrancy Act once the relevant provisions have been commenced, but the Government have said that they will commence those provisions only when replacement legislation is in place. For better or for worse, the clauses in front of us are that replacement legislation.
The repeal of the Vagrancy Act was a momentous victory for campaigners, because it effectively decriminalised rough sleeping and begging. The repeal had cross-party support, and many in the House shared the view that those who are destitute and living on the street should not be criminalised or threatened but offered support and assistance. Subsequently, the Government consulted on replacing the Vagrancy Act and set out new offences and powers regarding, for example, the prohibition of organised begging, which is what we are discussing and which is often facilitated by criminal gangs, and the prohibition of begging where it causes a public nuisance, such as next to cashpoints or in shop doorways.
Clause 38 gives effect to some of the Government’s proposals by introducing the power for a constable or local authority to issue a move-on direction to a person if they are engaging in, have engaged in or are likely to engage in nuisance begging. In this context, it is important that we differentiate between nuisance begging and nuisance homelessness, which we will come to. We strongly object to the provisions on nuisance homelessness, but the issue of nuisance begging is more nuanced. We know that some organised criminal gangs use begging for their own ends. They often use begging strategies that are aggressive and antisocial, and they often exploit challenged people to gain illicit private profit off the back of the characteristic kindness of the British people. That is wrong, and we therefore support powers that can tackle organised nuisance begging, but we think the provisions require greater humanity to protect those who are being exploited and those who are genuinely destitute.
The risk is that clause 38 and related clauses will target anyone, regardless of the nature of the harm. As Crisis has said, an effective blanket ban on begging risks pushing vulnerable people into dangerous places where they may be subject to greater abuse or violence. Someone simply sat alongside a cap or a cup could fall foul of the definition. That would be a mistake and risk harming some of the most vulnerable people in society. Many people become homeless and resort to begging through no fault of their own but because of situations such as trauma or family breakdown. They should not be doubly punished for falling through the cracks of a welfare system that is creaking under the strain of widespread poverty in our society. We are concerned that the Government have not quite landed the provision right.
Clause 38 allows for an authorised person—in this case, a constable or someone from the relevant local authority, which is defined in clause 64—to give a nuisance begging direction to someone over 18 who they think is engaging, has engaged or will engage in nuisance begging. The written direction will require the person to leave a certain place and not return for up to 72 hours. We do not, in principle, object to the police or local authority having tools to disrupt highly organised nuisance begging operations, which we know are active, but we fear that the provision will sweep up others along the way.
Amendments 139 and 140 seek to introduce safeguards. Amendment 140 seeks to ensure that, where nuisance begging directions are used, they should not interfere with a person’s attendance at substance abuse support services, mental or physical health support services, or their place of worship. Clause 38(5) states that a direction cannot interfere with a person’s work, their education or a court order. That is wise, but adding substance abuse support services, health services and someone’s place of worship would complete the picture. The amendment is straightforward and reasonable. Its intention is to protect the support and assistance provided to people who might be forced into begging, and to ensure that the Government’s nuisance begging directions do not cut across or undermine that support.
The nuisance begging powers are significant and could have unintended consequences, and amendment 139 is an attempt to maintain some parliamentary oversight. It would require the Secretary of State to lay an annual report before Parliament on the application of the provisions in clause 38, which we think would be an important check to ensure that they are not causing unintended harms, to give Members a mechanism to raise concerns, and to give a degree of parliamentary accountability. I do not think the amendment is particularly onerous. I would like to think—I would be concerned if this was not the case—that the Government will be monitoring the application of the powers and have a sense of how they work and whether they are dealing with the problem that they want them to deal with.
If that is not the Government’s approach, I hope that the Minister will talk a little about what assessment has been made of the possible risks, particularly for those who are facing genuine destitution and may fall foul of the legislation. For example, what will be the impact of imposing a one-month prison sentence or a £2,500 fine on someone in breach of these provisions, when they are already almost certainly in severe financial difficulties? We will get to appeal provisions, but will those who are facing these challenges be likely to be able to use those provisions? Is there not a risk of rather unequal justice? Further, having made such an assessment, what steps will the Government take to introduce mitigation?
My amendments suggest a way to put in some safe-guarding. I hope that the Minister can give us assurances, at least, about the Government’s understanding of how they will differentiate between the genuine, criminal, organised nuisance operations and people who are just in a dire personal situation. It is important that the Committee is mindful of that.
Chris Philp
It is a pleasure to serve under your chairmanship, Sir Robert—I think for the first time, though I hope it is the first of many. I am grateful to the shadow Minister for explaining his two amendments to clause 38, which provides for nuisance begging directions. Before I respond to his amendments, let me provide a little wider context for clauses 38 to 64, which the Committee will be relieved to hear I do not propose to repeat at the beginning of our debate on each clause.
These clauses will replace the Vagrancy Act 1824, which was prospectively repealed by the Police, Crime, Sentencing and Courts Act 2022, as the shadow Minister said. The hon. Member for Stockton North and I fondly remember our extensive debates on that subject some years ago. This package includes directions, notices and orders where someone is nuisance begging or nuisance rough sleeping; offences for nuisance begging and for facilitating organised begging; and a replacement offence for being found on enclosed premises for an unlawful purpose.
The Government and, I think, the House as a whole take the view that nobody should be criminalised simply for being destitute or homeless. That is why we are committed to bringing into force the repeal of the outdated Vagrancy Act 1824, using regulation-making powers under the PCSC Act—a Henry VIII power to which I presume the shadow Minister does not object. We have put in place a substantial package of support for people who are genuinely homeless, sleeping rough or at risk of doing so. Engagement and offers of support must continue to be the starting point in helping those who are begging genuinely or sleeping rough to move away from a life on the streets and into accommodation. However, we have heard from frontline local authority partners and police that there is still a role for enforcement where that engagement does not work.
It is important not to conflate begging and rough sleeping—although of course the two can be linked—which is why we treat them separately in the Bill. The Government consulted on replacing the Vagrancy Act in 2022 and the majority of respondents were in favour of introducing replacement begging offences, recognising the harm that it causes. We set out our plans in more detail in the antisocial behaviour action plan, published in March 2023.
Accordingly, clause 38 provides that where an authorised person, defined in subsection (7) as a police constable or the relevant local authority, is
“satisfied on reasonable grounds that the person is engaging, has engaged, or is likely to engage, in nuisance begging”,
they can issue a direction to move on. We will come on to the definition of nuisance begging, which is set out in clause 49. Such a direction will require the person to leave the specified location and not to return for up to a maximum of 72 hours, giving respite to those who are negatively impacted by the nuisance. It can also include a requirement for the person to take their belongings, and any litter they have been responsible for, with them. The direction must be given in writing, and it is an offence not to comply with it. The penalty for failing to comply is up to one month’s imprisonment or a level 4 fine, which is up to £2,500, or both.
Jess Phillips (Birmingham, Yardley) (Lab)
Can the Minister tell me how somebody looks likely to beg?
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.
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.
Chris Philp
I am looking forward to repeating it.
There are many parliamentary mechanisms for monitoring the implementation of Bills, not least parliamentary questions, scrutiny by Select Committees and, critically, the normal process of post-legislative review, which takes place between three and five years after Royal Assent. I hope on that basis that the shadow Minister will forbear from pressing amendments 140 and 139. I commend the clause to the Committee.
Alex Norris
I am grateful to the Minister for his answer and for saying that the Government believe that, for nuisance begging and nuisance rough sleeping, support is the starting point. That is an important message. I also share his view that they are not the same thing, and our treatment of the two are different for that reason. I also agree that there is a place for enforcement, particularly for nuisance begging, although I think the case is weaker for rough sleeping. However, he also said that this is not about just any begging. Although I do not want to pre-empt our discussion of clause 49, which we will debate in due course, the way it is drawn up means that there will not be much left, frankly.
One theme that I will return to—particularly when we come to the homelessness provisions and the point my hon. Friend the Member for Birmingham, Yardley made about whether someone looks “likely”—is that this will be in the eye of the beholder. That will be a challenge, particularly for rough sleeping, but also in this area, so it is right that there should be anxieties.
I am grateful for the Minister’s comments on amendment 140. As he says, the list is probably not comprehensive, but I am glad that he said it was reasonable in spirit, which is definitely the kindest thing he has said to me in our four months together so far—I will take that as the strongest affirmation that I am likely to get. He has committed to address this issue through guidance, which is perhaps a better way to do it, so I am happy to withdraw the amendment on that basis.
Similarly, on amendment 139 and this point about post-legislative reviews, that is obviously not something we feel in this place. I suspect it is something that is more internal to Departments. There is a point here about how well we do or do not monitor the impact of legislation three or five years after we have passed it. We do not—we move on and do not really learn anything from it. However, we have had that argument on previous clauses, and I will not rehearse it again. On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 38 ordered to stand part of the Bill.
Clause 39
Nuisance begging prevention notices
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.
Chris Philp
As the shadow Minister explained, his amendments are to clauses that provide for nuisance begging prevention notices. The notices are a further tool that would be made available to police and local authorities to tackle nuisance begging, where it arises. The nuisance begging prevention notices that are set out in this and subsequent clauses follow the structure of existing notices such as community protection notices, which the police and local authorities are already familiar with using.
The nuisance begging prevention notice builds on the move-on direction in clause 38, allowing for an escalated approach, and can be tied in with relevant offers of support. The notice will prohibit the relevant nuisance begging behaviours and help to direct the person into the relevant support where it is necessary to do so in order to prevent the nuisance behaviour. For example, the notice may state that the individual must not beg close to cashpoints or that they must not approach people to ask for money, and also that they should attend a drug treatment centre so that their support needs can be assessed. In that way, the public would be protected and any relevant underlying drivers causing the nuisance begging could be addressed.
In relation to the point that the shadow Minister raised, I can confirm that the intention is absolutely to support people. We want to help address the underlying causes of begging and rough sleeping, which may be related to mental health problems or drug problems. I will give the shadow Minister a sense of the thinking on this. In drafting the Bill, there was extensive debate about whether we could go further and actually require people to have drug treatment, mental health treatment or whatever, or to attend a refuge or a shelter. There is evidence that people do not always want to accept those offers of help, so we considered whether we could introduce a power to essentially require them to do it. Having taken legal advice, it was suggested that that would not be lawful, and that is why this is constructed in the way it is. However, hopefully that illustrates that the Government’s thinking is that we want to offer more assistance and to get more people who are sleeping rough or begging into mental health treatment, drug treatment and alcohol treatment. We thought of going further, but for legal reasons that are principally connected to the European convention on human rights, we were not able to do so. Hopefully that illustrates the thinking on these issues.
Amendment 142 seeks to reduce the maximum duration of a nuisance begging prevention notice from three years to one year. I should start by stressing that the three years provided for in the Bill is the maximum period over which the notice can be enforced, and, naturally, where appropriate, a shorter timeframe can be specified. It is for the authorised person, which will very often be a local authority officer, not just a police constable, to consider the individual circumstances—all the relevant information about the person’s circum-stances—to decide what is appropriate, reasonable and proportionate.
Jess Phillips
What concerns me, regarding certainty of referral, is if there are cases where people—where I live in Birmingham, the biggest problem in nuisance begging is Romanian women who are clearly being trafficked; there are no two ways about that. I fear their criminalisation more so than their traffickers’ criminalisation, which is nil. I wonder whether there could be a mechanism for referral directly to the national referral mechanism. Both the police and local authorities act as first responders in the national referral mechanism already, so that would not need a change in the law. Maybe that is a compulsory referral that could be made.
Chris Philp
The hon. Lady raises an important point. As she says, first responders, among others, are already under an obligation—I think a statutory obligation—to make referrals into the national referral mechanism. I suspect that it was the Modern Slavery Act 2015—I am looking to my colleague, the Under-Secretary of State for Justice, my hon. Friend the Member for Newbury, for assistance; it probably is that Act—that enacted our obligations under the ECAT, or Council of Europe convention on action against trafficking in human beings, treaty. So, those obligations already exist. I would certainly agree with the hon. Lady that, if first responders—either the police or indeed local authorities—think that someone is a victim of trafficking or modern slavery, they should certainly make the referral into the national referral mechanism.
In terms of potential prosecution, obviously there are provisions in the Modern Slavery Act 2015, where someone is the victim of trafficking, that provide protection in those circumstances. I would also say that there are some circumstances in which referrals into support are not necessary. There are many cases—probably the majority of cases—where they are necessary, and I would expect that to happen in those, whether it is the police or a local authority, but there are also circumstances in which it is not necessary, or where the help has been repeatedly refused in the past. I therefore think that a blanket requirement on the face of the Bill, as per the amendment, probably is not appropriate.
However, again, I agree with the spirit enshrined in the shadow Minister’s amendment, and I would like to put it on record that the expectation from the Government, as well as, I suspect, from the Opposition, is that, where somebody needs support—mental health support, drug treatment support, alcohol treatment support, domestic abuse support, or protection from trafficking and other vulnerabilities—the police and local authorities will make the appropriate referral. But that will not necessarily apply in all cases, whereas the amendment, as drafted, covers everyone, regardless of whether there is a need or not.
Amendment 141 is similar to amendment 140, which was in the previous group. As I said then, I am not sure that it is possible or desirable to set out all the possible circumstances in which an individual may need access, so guidance is the right place to put that.
Jess Phillips
The expectation, rather than necessarily the duty in law, is a referral. Beyond a referral, what happens if a woman nuisance begs in the 1,000 days that it takes to get referral through the national referral mechanism? It takes women 1,000 days to get a conclusive grounds decision, and it takes men 500. Or what if someone is waiting for a mental health referral? As I think every Member will know, you might as well wee in the wind. What happens if they nuisance beg in the 1,000 days, or a year, from when they are first helped to when they can get counselling in a domestic abuse service? What happens in the gap?
Chris Philp
If someone is given a nuisance begging prevention notice, the expectation will be that they comply with it. If there is any prosecution for a breach, it may be that the protections in the Modern Slavery Act would apply. Again, if a police officer or local authority officer thinks there is a problem with trafficking, it may well be that they think it inappropriate to make the prevention order. It is a power, not an obligation; they do not have to give the notice. We would expect the officer to have regard to the circumstances of the individual, which might include those the hon. Lady described. The national referral mechanism can take quite a while, although it is speeding up, but it may be that other support is available much more quickly than the support that follows an NRM reasonable grounds decision.
To repeat the point, the expectation is that support is made available where it is necessary, but support could be provided hand in hand with a nuisance begging prevention notice. The authorities could seek to prevent nuisance begging, which is bad for the wider public, by using the notices and other powers, while at the same time ensuring appropriate safeguarding. The two are not mutually exclusive; it is possible to do both at the same time. I also draw the Committee’s attention to clause 39(7), which is relevant to the intervention. It says it is only an offence to breach the conditions “without reasonable excuse”. For example, if someone has been coerced into behaviour that results in a breach, that coercion could—it would be for the court to determine—be a reasonable excuse, and therefore a defence.
I hope that that explains the purpose of clauses 39 to 42. Although I understand and agree with the spirit of the amendments, they are not necessarily the right way to achieve the objectives that the shadow Minister set out.
Alex Norris
I am grateful for the Minister’s response. The “reasonable excuse” provision in clause 39(7) gives a degree of comfort, but the reality is that, particularly in the trafficking cases mentioned by my hon. Friend the Member for Birmingham, Yardley, individuals will not say that they have been coerced into nuisance begging. Instead, they will take the punishment; they will not be able to proffer what would be considered a reasonable excuse. That is our concern.
The debate on amendment 141 mirrored previous debates, and I am happy not to move it on the basis of the answers I have had. On amendment 142, I hear what the Minister said about the three-year duration being a maximum, not a target, but I fear that because it is in the Bill, it will become a magnet. With regards to police constables, we know about their training and codes of practice, so we can be confident about the criteria that they are expected to apply, but we are concerned that the Bill is—for good reason—drafted in such a way that very junior local authority officers could be making that decision.
Chris Philp
I beg to move amendment 70, in clause 43, page 42, line 21, after “application” insert “by complaint”.
This amendment provides for applications for nuisance begging prevention orders to be made by complaint.
The Chair
With this it will be convenient to discuss the following:
Clause stand part.
Clause 44 stand part.
Government amendments 71 to 75.
Amendment 143, in clause 45, page 44, line 16, leave out “5 years” and insert “1 year”.
Government amendment 76.
Clauses 45 to 47 stand part.
Chris Philp
Clauses 43 to 47 introduce nuisance begging prevention orders. Alongside nuisance begging directions and nuisance begging prevention notices, these orders—the third tier of escalation—are designed to be an additional tool available to local authorities and the police to keep communities safe. They are not about criminalising the vulnerable or the destitute, but rather acknowledge the impact that nuisance begging can have on individuals and communities, and empower local partners to deal with it in the most appropriate way.
Alex Norris
I will not repeat a lot of what I have said so far. Clause 43 concerns nuisance begging prevention orders, the most severe of the three tiers of powers that the Bill covers. I think it makes sense to align these tiers, as the Minister said in a previous debate, with other civil-type powers, so that they are easy to understand. As defined in clause 43, an authorised person can obtain the order on application to a magistrates court. If the court is satisfied that someone aged 18 or over has engaged in nuisance begging, and has failed to comply with the move-on direction and a notice, this seems like a reasonable escalation of the process for them to face.
My concern is mainly with the duration of such orders; clause 45(4) states that their duration may not exceed five years. That is quite a long period. Is that a proportionate response to the challenge that we are trying to tackle, which is serious and organised nuisance begging and aggressive and antisocial nuisance begging? Is a five-year exclusion the right thing to do, or, again, will it harm vulnerable people? We know that gangs will move on to new people, and the others will be left with the consequences.
There is a degree of comfort in the fact that we are talking about magistrates courts, so I have less anxiety about the measures than I did about the previous provisions, in which case I really think that three years will become a magnet. We can have confidence that a magistrates court will look at the full picture when considering an order of up to five years, but I am keen to know why the five years is being written in sand. Through amendment 143, I seek to reduce the period to one year, as a way of finding a balance between protecting vulnerable people and disrupting organised activity. An appeals process is set out in these clauses, and although this issue is of greater concern in the next part of the Bill, I think there is an access to justice issue for the people we are talking about. How well will they be able to use the legal processes that are there to protect them, and what support will they get to do so? I will stop there, but I am particularly keen to know why five years was the chosen duration of the orders.
Chris Philp
Briefly, five years was chosen—an increase from the three years in the previous provisions—because, as the shadow Minister said, the order is supervised by a court. That duration is a maximum, rather than a target. Courts are very well used to dealing with maximum durations, particularly in the context of sentencing. For example, the prison sentences handed down are often a great deal shorter than the maximum set out. As a matter of evidence and practice, courts often go a long way below the maximum—although we in Parliament might wish they went closer to the maximum in some cases. The duration is set at five years because courts have discretion and are used to working with maximum durations; but the court does have to look at all the relevant information and evidence before deciding. Description of person Time when order takes effect A person who has been remanded in custody, or committed to custody, by an order of a court From the beginning of the day on which the person is released from custody A person subject to a custodial sentence Immediately after the person ceases to be subject to a custodial sentence”
Finally, in relation to the positive requirements imposed, we have offered further safeguards, in that nuisance begging prevention orders can be varied or discharged, should circumstances change during the period. I hope the shadow Minister accepts that giving a court that flexibility is reasonable. We do it the whole time with criminal sentencing, and there is evidence that courts use that power with a great deal of restraint sometimes. I hope that explains the Government’s thinking on the issue.
Amendment 70 agreed to.
Clause 43, as amended, ordered to stand part of the Bill.
Clauses 44 ordered to stand part of the Bill.
Clause 45
Duration of nuisance begging prevention orders
Amendments made: 71, in clause 45, page 44, line 8, leave out “on the day” and insert
“at the beginning of the day after the day on which”.
This amendment provides for a nuisance begging prevention order to take effect at the beginning of the day after the day on which it is made.
Amendment 72, in clause 45, page 44, line 9, leave out “subsection (2)” and insert “subsections (2) and (2A)”.
This amendment and amendments 74 and 76 provide that where a nuisance begging prevention order is made in respect of certain offenders, the order may take effect from a later time described in the table inserted by amendment 74.
Amendment 73, in clause 45, page 44, line 12, leave out
“be made so as to take”
and insert “provide that it takes”.
This is a drafting change.
Amendment 74, in clause 45, page 44, line 13, at end insert—
“(2A) If a nuisance begging prevention order is made in respect of a person described in the first column of the following table, the order may provide that it takes effect as mentioned in the second column.
See the statement for amendment 72.
Amendment 75, in clause 45, page 44, line 16, leave out “not exceed” and insert
“be a fixed period not exceeding”.
This amendment clarifies that the specified period for an order must be a fixed period.
Amendment 76, in clause 45, page 44, line 19, after “section” insert
“—
“custodial sentence” means—
(a) a sentence of imprisonment or any other sentence or order mentioned in section 222 of the Sentencing Code or section 76(1) of the Powers of Criminal Courts (Sentencing) Act 2000, or
(b) a sentence or order which corresponds to a sentence or order within paragraph (a) and which was imposed or made under an earlier enactment;”—(Chris Philp.)
See the statement for amendment 72.
Clause 45, as amended, ordered to stand part of the Bill.
Clauses 46 and 47 ordered to stand part of the Bill.
Clause 48
Offence of engaging in nuisance begging
Question proposed, That the clause stand part of the Bill.
Chris Philp
I would like to deal first with clause 49, which defines, as I said earlier, the concept of nuisance begging, which underpins the behaviours being targeted in the preceding clauses that we have debated this morning.
The definition has two parts. First, subsection (2) defines a number of specific locations where begging will automatically be considered to constitute nuisance begging. These are locations where people are likely to be handling money or are less likely to be able to get away from the person begging. The locations include forms of public transport, including bus, tram and train stations, buses, trams and trains, taxi ranks, outside an area of business, near an ATM, near the entrance or exit of retail premises, and the common parts of any buildings.
Subsection (3) provides that it will also be considered to be nuisance begging when a person begs in a way that causes or is likely to cause: harassment, alarm or distress to another person; a person to reasonably believe that they or anyone else may be harmed or that the property may be damaged; disorder; and a risk to health and safety. Where necessary, those terms are further defined in subsection (4).
Distress includes distress caused by the use of threatening, intimidating, abusive or insulting words or behaviour or disorderly behaviour, or the display of any writing, sign or visible representation that is threatening, intimidating, abusive or insulting. That can include asking for money in an intimidating way or abusing people who refuse to give money, all of which I hope hon. Members will agree are behaviours that should not be tolerated on our streets and to which people should not be subject.
Jess Phillips
This is quite an exhaustive list, but much of the law is often London-centric. One of the problems where I live, certainly as a woman driving late at night, is people stopping traffic at road intersections. The feeling of intimidation can differ from person to person, but as a woman on her own at a crossroads in Birmingham, it feels intimidating to have people standing outside my car. How can we deal with that particular issue?
Chris Philp
I recognise the hon. Lady’s point that we need to legislate for the whole country, not just London, and I say that as a London MP. We want to look after the entire country. I accept and agree with her that being approached in one’s car when in stationary traffic or at a junction can be very alarming and worrying for everyone, but particularly for women. There are two things in the Bill that I think may assist. Clause 49(2)(e) specifically references a carriageway, which is defined in subsection (4) as having the meaning given by the Highways Act 1980, and I think that includes a road, so that would be covered.
Secondly, and more generally, clause 49(3) provides that the nuisance begging definition is engaged, or the test is met, if the person begging does so in a way that has caused or is likely to cause harassment, alarm or distress. That means that there is a “likely to cause” protection as well. I think that the combination of those two provisions—but especially the first, which expressly references a carriageway, meaning road, as defined in the 1980 Act—expressly addresses the point that the hon. Lady has reasonably raised.
To return to the substance of the clauses, it is important to include in the definition of nuisance begging behaviours that constitute a health and safety risk. There are many instances, exactly as the hon. Lady has just said, where people approach cars stopped at traffic lights. In addition to being on a carriageway, as caught under clause 49(2)(e), and in addition to potentially causing or being likely to cause harassment, alarm or distress, as caught under clause 49(3)(a), it may also be the case that they are causing a road traffic risk. Moreover, they could be causing a health and safety risk if they are blocking fire exits or routes that emergency services may need to pass down. I hope that shows that we have thought about this quite carefully.
Alex Norris
As my hon. Friend says, there would just be fields.
I am keen to understand from the Minister that subsection (3) is an “or” provision to subsection (2) and not an “and” provision—[Interruption.] The Minister nods. Subsection (3) is therefore a significant increase, in the sense that the locations cease to matter quite quickly so long as the nuisance begging
“has caused, or is likely to cause”—
has yet to cause, but may well cause—harassment, possible harm or damage, or a risk to health or safety. This is a very broad and subjective test. I understand what training we could give to a constable, but I am interested to hear from the Minister about what training we can give to local authorities, or at least what guidance he intends to produce regarding the application of this subjective test. We do not intend to oppose this clause but, combined with the clauses before it, the total effect will be that the distinction between begging and nuisance begging, about which the Minister made a point, will not exist in any practical sense. The provisions are drawn broadly enough to apply in virtually any case where an individual wants to beg. We need to know what criteria the authorities are supposed to be working against, so I am keen to hear the Minister’s answer.
Chris Philp
In relation to the first question about why the offence is set out in the clause when we already have the notices, orders and directions—three interventions—that we have discussed already, there may be some particularly egregious or persistent cases where the criminal sanction is necessary.
Of course, it is for the court to decide what is appro-priate. We have already discussed that there is now a presumption—or there will be shortly, once the Sentencing Bill passes—against short sentences for those people not already subject to a supervision order from the court, so a custodial sentence is very unlikely to occur for a first conviction in any case. For offences of this nature, it is open to the court to impose a non-custodial sentence, even for subsequent offences where there is already a supervision order from the court in place. That might include a mental health or alcohol treatment requirement, a drug rehabilitation requirement and so on. It does not follow that the court having the power to impose custody will mean that it will necessarily choose to do so. I hope that answers the hon. Gentleman’s question. It is a last resort power, but it is important that the police have that available to them.
In relation to the definition of nuisance begging—to which no amendments have been proposed—we want to make sure that people are able to go about their daily business; the hon. Member for Birmingham, Yardley set out in her intervention how nuisance begging can cause intimidation. The list of locations is based on feedback received from local authorities, business improvement districts, and retail associations and their members, based on their own practical experience. That feedback came from the consultation we conducted in 2022 and subsequently, and it is why the list of locations has been constructed in that way that it has.
Jess Phillips
As the Minister has said, I have outlined the places where I do feel intimidated. There was a homeless man—he died recently—who used to sit outside the local Asda where I live. He was a lovely man who chatted to everybody, and he was not intimidating at all. Would this definition account for him? He did not do anything wrong and I do not think he caused anyone any offence. Would he have fallen under this definition?
Chris Philp
Well, if he was sitting within 5 metres of the retail entrance, then yes, he would have come under this definition. However, I would point out that he would also have come under the definition set out in the current Vagrancy Act 1824; indeed, under that Act, he would have been in scope wherever he sat. If he was begging at the Asda entrance, then he was already breaking the existing law. This change is narrowing the definition a great deal. The fact that he was technically infringing the current Vagrancy Act, but was not arrested or enforced upon, probably illustrates the point that the police and local authority officers do exercise reasonable judgment. If they were not, he would have been arrested.
I hope that what would happen in such cases is as we discussed earlier; if someone like that man needs assistance of some kind—with mental health support, alcohol support, or whatever the issue may be—the expectation of the Government, and probably the Opposition, is that that intervention will happen. It would be interesting to find out if any attempt was made by the local authority in Yardley to assist that gentleman with whatever issue or challenge he may have been struggling with. To repeat the point, the provisions in this clause significantly narrow the scope of criminalisation in the law as it has stood for the last 200 years.
Question put and agreed to.
Clause 48 accordingly ordered to stand part of the Bill.
Clause 49 ordered to stand part of the Bill.
Clause 50
Arranging or facilitating begging for gain
Question proposed, That the clause stand part of the Bill.
Chris Philp
I hope that the clause is relatively uncontentious and commands unanimous agreement across the Committee. It creates a new criminal offence for any person to arrange or facilitate another person’s begging for gain, relating to the kind of exploitation that the hon. Member for Birmingham, Yardley referred to in an earlier intervention. Organised begging is often run by criminal gangs, sometimes with links to trafficking and other serious crimes. It exploits vulnerable individuals, causes nuisance to others and undermines the public’s sense of safety. It benefits no one, and it exploits the vulnerable by making money off them.
The clause outlaws this despicable practice, making it unlawful for anyone to organise others to beg for gain. That can be anything from recruiting vulnerable people to take part in organised begging to driving them to places for them to beg. I am sure we have all seen, read about or heard about people getting dropped off to beg and then being picked up in luxury cars or vans later in the day. None of us wants to see that activity tolerated. It helps to gather funds that not only arise from the exploitation of vulnerable people, but can be used to support organised criminal gangs and their other illicit activities. The offence rightly helps to shift the risk to the criminals who are organising the begging and exploiting the most vulnerable. To reflect the severity of the activity and the role it plays in criminal gangs, the maximum penalty upon summary conviction will be six months in prison, an unlimited fine or both.
Alex Norris
This is the best of all the clauses that we will debate today, so the Minister will have the unanimity that he seeks. The real criminals are the ones who cause or arrange for people to beg on our streets in order to extract money for themselves. Those are the real villains, and it is right that there is an offence and a sanction. We hope to see it used, although I have slight anxiety about that. I am also glad that it is more severe than the sanction facing the individuals who themselves have been forced to beg. That is the right balance.
I am keen to understand one point. It is certainly my belief, and I think also the technical definition, that forced begging is a form of modern slavery. Therefore, presumably the Government’s point is that this offence is not covered, or insufficiently covered, under modern slavery legislation. I am interested in the Minister’s rationale there.
Similarly, we have to see it in that context. As my hon. Friend the Member for Birmingham, Yardley knows well from her work, there has been a retrenchment in recent years of the focus on modern slavery. The important provisions in the Modern Slavery Act 2015, particularly the referral mechanism, obviously have not worked as intended. People who are supposed to be waiting for 45 days for a decision are actually waiting closer to 600 or 700 days in many cases, and certainly multiple hundreds in virtually all of them. There has also been a sign from the Home Office, and from the Prime Minister himself, that in some ways modern slavery provisions are not compatible with the public’s desire for a controlled migration system. That is not our view; we do not believe that that is right, but there is a slight disconnect between this provision and the 2015 provisions, and some of the national rhetoric. I am keen to understand the Minister’s view on the interrelationship between this clause and the Modern Slavery Act 2015.
Chris Philp
I shall respond briefly to the question about the interaction of this clause with the Modern Slavery Act 2015. The Modern Slavery Act applies where someone is coerced, forced, tricked or deceived into labour of some kind, whereas people who are engaged in organised begging might sometimes do so voluntarily. This clause covers the cases where either they have agreed to it voluntarily or it is not possible to produce the evidence that they have been coerced, so it fills those two lacunae.
Question put and agreed to.
Clause 50 accordingly ordered to stand part of the Bill.
Clause 51
Nuisance rough sleeping directions
Question proposed, That the clause stand part of the Bill.
Chris Philp
I reiterate a point I have made already: nobody should be criminalised simply for being destitute or homeless. That is why we are committed to bringing into force the provisions to repeal the outdated Vagrancy Act 1824. Rough sleeping can cause harm to the individual involved, with increased risks of physical and mental ill health the longer somebody lives on the street.
Alex Norris
This part of the Bill, on nuisance rough sleeping provisions, is certainly the most contentious part, and probably the most interesting to the public as well. I rise to speak with a degree of sadness. I agreed with so much of the first half of the Minister’s speech; the problem is that the first half, which set out the Government’s intent, belief and policy, was not the right counterpart to the second half, which simply is not in service of those goals. We therefore oppose these measures and will, I am afraid, oppose every group of this debate.
The nuisance rough sleeping directions in clause 51 give an authorised person, which, according to subsection (7), is a police constable or someone from the local council, the power to move on a person if the rough sleeping condition, which we will debate at clause 61, has been or, indeed,
“is likely to be, met.”
That is a significant phrase. Subsection (2) sets out what that will mean: that person will be moved on and not allowed to return to that area for 72 hours. Subsection (3) states that that person will have to pack up and take all their belongings and any litter with them. If they fail to comply, they will have committed an offence and may go to prison for a month or be subject to a £2,500 fine.
As I say, we oppose these provisions. I take the same view as my hon. Friend the Member for Birmingham, Yardley: I understand that nuisance rough sleeping is different from nuisance begging, which can have its roots in organised crime, but even where it is solely a venture by individuals, it can often be intimidating, disruptive and not fair on either businesses or individuals going about their daily lives. It is, of course, right for local authorities and the police to have some degree of power and control over nuisance begging, but rough sleeping is different. There is certainly no evidence that anyone is sleeping rough for profit. As a result, the Government’s rationale for these provisions does not hit the mark.
The repeal of the Vagrancy Act 1824 was a landmark moment for campaigners, including many Members of this House who had worked towards it for a long time. The same people who were elated at that success are now rightly shocked that the Government are opting to pursue this path. We heard on Second Reading—although not from the Minister, I do not think—that it is contingent in law, and certainly in the Police, Crime, Sentencing and Courts Act 2022, that there must be some replacement for the Vagrancy Act lest those provisions cannot be ended. First, I am not sure that is true beyond a de minimis meeting of that legislation, and secondly, that is not a case for what is in this Bill. We have heard that there must be a change, but we do not hear why this change is necessary—why private property laws or health and safety laws cannot be used.
On Second Reading, a Member—possibly a member of this Committee, though I dare not mention the name in case I get it wrong—raised an instance of dangerous rough sleeping in their constituency, where a fire exit was being blocked. The Government cannot tell me that either there are not the right powers on the statute books or we could not have drawn narrow powers to meet that case. Under those circumstances, we would have supported them.
I have drawn significantly on the explanatory notes throughout the considerations of the Bill, and I think it is telling that the policy background element, which is detailed on everything else, essentially gives up on homelessness. I do not think there is a very strong case to be made for these provisions. We should not lose sight of the fact that rough sleeping is a symptom of other failures, particularly Government failures on housing, poverty and mental healthcare provision. I am not sure how criminalising those who then end up with the sharpest repercussions of those failures will in any way move us closer to resolving their individual circumstances or the collective ones.
Chris Philp
I did set out the Government’s commitment to ending rough sleeping and the £2 billion being invested to achieve that objective. The shadow Minister is setting out why he does not agree with these provisions as drafted. He is, if I hear him correctly, implying that no replacement statutory provisions are needed at all. Does he accept that, if customers will not go into shop because a large number of people are camped or sleeping rough outside it, which happens in some areas, to the point that the business is being undermined, there should as a last resort be some hard-edged sanction to protect the business owner in those circumstances? The argument that he advances seems to suggest that there should be no protection at all for that business owner.
Alex Norris
No, the phrase I used was “de minimis”. I believe that there could be some degree of power in that instance—which, I must say, I am not sure is that common, likely or foreseeable across the country. In those extreme circumstances a lower-level power could be set but that is not what we have in the Bill, which is much broader and risks drawing lots of vulnerable people into the criminal justice system. The idea that we could in some way meet the compulsions for a month in prison or, indeed, that those individuals could meet the £2,500 fine is rather for the birds.
We are likely to see something more like what the Minister said in the previous debate to my hon. Friend the Member for Birmingham, Yardley—some sort of common-sense application of the laws as they are, with people being moved on and getting a tap on the shoulder. Actually, how will we then have moved on from where we were? The point was not that the Vagrancy Act was not really being used, but that it really should not have been on the statute book and had to go. We are just going to replace it with a range of measures that, similarly, will not be used—or will be exceptionally damaging where they are used. I direct hon. Members to the joint briefing sent by Crisis, Shelter, St Mungo’s, the YMCA, Centrepoint, the National Housing Federation and many more:
“enforcement is far more likely to physically displace people to less safe areas and prevent them from accessing vital services that support them to move away from the streets, entrenching the issue in a way that makes it harder to solve.”
It goes on to say that that can
“push people into other riskier behaviour to secure an income such as shoplifting or street-based sex work.”
It is a critical failure of the Bill that those who know of what we speak fear that those are the sorts of vulnerabilities that people will be pushed into.
Another point of difference between us and the Government—we will get on to this in clause 61—is that the definition is very broad. The Minister raised a specific case in a small set of circumstances, and the answer to that is a broad set of powers in a broad range of circumstances. That seems unwise, particularly as the issue is not even about sleeping rough; it is about the act of “intending to sleep rough”. All sorts of consequences flow from that definition, which we will talk about in clause 61. However, we have heard concerns from the Salvation Army about feeding existing prejudices about those who sleep rough.
Ultimately, the most vulnerable and destitute need support into suitable accommodation, not criminalisation. Clause 51 and the associated clauses will only exacerbate the problems that they face; it may offer a bit of short-term respite for the community, but in reality it will cause greater issues and solve none of the underlying causes. As my hon. Friend the Member for Birmingham, Yardley said, the clause is a triumph of hope over experience. For that reason, we cannot support it and will vote against its inclusion in the Bill.
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.
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.
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.
Chris Philp
We are about to hit the time limit, so maybe we can discuss further when we debate the other clauses.
The question is: what would happen if we were to repeal? To see what would happen as a result of what the Opposition propose, let us look at other cities around the world; I am not doing that because I have imperial designs, but as a case study. Other places such as San Francisco have done it, and the results have been terrible. That is why I am a bit wary of doing what the Opposition propose.
Question put, That the clause stand part of the Bill.
Criminal Justice Bill (Twelfth sitting) Debate
Full Debate: Read Full DebateDepartment: Home Office
Chris Philp
Main Page: Chris Philp (Conservative - Croydon South)Department Debates - View all Chris Philp's debates with the Home Office
Criminal Justice Bill (Twelfth sitting)
Chris Philp ExcerptsTuesday 23rd January 2024
(10 months, 1 week ago)
Public Bill CommitteesRead Full debate Criminal Justice Bill 2023-24 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 23 January 2024 - (23 Jan 2024)
The Minister for Crime, Policing and Fire (Chris Philp)
It is a pleasure, as always, to serve under your chairmanship, Sir Graham.
The nuisance rough sleeping direction in clause 51 was debated just before we adjourned this morning; it is one of a suite of tools that the Bill introduces to help local authorities and the police to tackle rough sleeping where it poses a nuisance. Clauses 52 to 55 additionally introduce nuisance rough sleeping prevention notices and outline how they will operate.
Although aimed at different behaviour, nuisance rough sleeping prevention notices will operate in a similar way to nuisance begging prevention notices, which we debated this morning. That being the case, I will not go into the detail of clauses 52 to 55, which largely mirror clauses 39 to 42, which we have already discussed. We also discussed at some length the substance of nuisance rough sleeping as part of the debate on clause 51. We may discuss what exactly constitutes nuisance rough sleeping when we come to clause 61, so I will leave my remarks there and simply respond to the shadow Minister or other colleagues as necessary.
Alex Norris (Nottingham North) (Lab/Co-op)
As the Minister says, we gave the issue a pretty thorough airing in the debate on clause 51 this morning. The Opposition are in the same place as we were this morning: we do not think that the provisions are good additions to the Bill and we will not support them.
Having had a chance to reflect on some of the Minister’s arguments, I might test some of them. He mentioned San Francisco frequently. I find it very hard to believe that what is standing between this country’s situation and that of San Francisco, whose challenges are well documented, is the Vagrancy Act 1824—not least because San Francisco never had such legislation, so repeal of legislation could not have led to its problems.
The Minister challenged me on what alternative measures could be used. Actually, I did not detect—certainly not in the debate earlier—much enthusiasm from the Minister for the provisions in the Bill; he was more interested in our view rather than in what the Government were putting forward. Having reflected on that, we will go on to talk about community protection notices—an important civil power, from the Anti-social Behaviour, Crime and Policing Act 2014, that the Government are very keen on. The Minister’s question was: if these clauses do not stand part of the Bill, what could be done if an individual sleeping in the doorway of a shop refused to move? I wondered about section 43 of the 2014 Act, which states that an authorised person would have the power to issue a community protection notice
“to an individual aged 16 or over, or a body, if satisfied on reasonable grounds that—
(a) the conduct of the individual or body is having a detrimental effect, of a persistent or continuing nature, on the quality of life of those in the locality, and
(b) the conduct is unreasonable.”
In the case that the Minister discussed, both those tests would be satisfied. They would provide the backstop without the need for any of the provisions that we are discussing. Using those section 43 powers would have the value, on the face of it, of not being targeted at rough sleepers. There would be a general power for use in the locality or amenity that would not require any of this dog and pony show. It would provide enough of a backstop and would pass the test that the Minister set us earlier.
I turn to the clauses themselves. The idea that a rough sleeping prevention notice could be handed, without any sense of adequate follow-up support, to someone sleeping rough, is, to me, for the birds—as if handing it to a person who has so little with them in the world would make any difference. Turning to clause 54, an appeals process would be an important part of such a regime, but we have a duty to be sure that what is written in a Bill in some way reflects the reality that we live in. My hon. Friend the Member for Birmingham, Yardley has made that point on multiple occasions.
We are talking about some of the most challenged people in society—the people with the fewest assets, and often those living with the most challenging mental health or substance abuse-related issues. I find it very difficult to believe that they will have the resources and support to lodge an appeal against their rough sleeping prevention notice and go to a magistrates court to uphold their rights.
We do not think that these measures are a good addition to legislation. I have given the Minister what is probably a better alternative. On that basis, we will vote against clause 52.
Chris Philp
First, I thank the shadow Minister for giving consideration to the comments I made before the lunch break. That was very helpful and perhaps facilitates a more thoughtful debate.
The shadow Minister referenced the comparison I have drawn with San Francisco and other cities on the American west coast and elsewhere. The point I was making was a slightly broader one. Essentially, some of those cities—Oakland, California is another on the bay—have adopted a very permissive approach to public drug consumption, antisocial behaviour, rough sleeping and things such as shoplifting, which we have debated previously.
A consequence of that very liberal approach has been widespread disorder on the streets of San Francisco and other cities. That has really undermined the quality of life in those places, and I do not think it has done any favours to the people who end up living those lifestyles either. There is no doubt that there is also a lack of treatment and support, but that very liberal approach has led to very bad outcomes. Some of those American cities, which are generally Democrat controlled, as the Committee can probably imagine, are beginning to reverse some of the measures on drug liberalisation, for example, because they have led to such bad outcomes. A complete removal of current laws would be a significant step in that direction, and that would concern me. That was the broader point that I was making.
Jess Phillips (Birmingham, Yardley) (Lab)
To go back to a conversation that we were having prior to the sitting about fentanyl in the US, does the Minister agree that the very strict rules about these sorts of things in various other US states have also led to terrible outcomes with regard to substance misuse?
Chris Philp
The tolerance of drug consumption in public places that we see in San Francisco and elsewhere has led to very bad outcomes. There are also serious problems with synthetic opioids in North America, which are, thankfully, not replicated in the UK. We are very anxious to prevent that from happening, as the hon. Lady can imagine.
The shadow Minister also suggested that there were other powers that could be used in some circumstances. He specifically referenced CPNs. We will debate those a bit more later, but they do not have the same powers as the notices that we are discussing. For example, a CPN does not allow for positive requirements to be set out—a requirement to attend treatment, for example—so it is not quite the same thing. CPNs also require individualised consideration. Many of the notices that we are discussing do too, which is fine, but they are quite intensive instruments to use.
Finally, the shadow Minister denigrated the approach taken in these clauses by saying that they simply criminalise rough sleeping without offering any support. They obviously do not do that. They criminalise nuisance rough sleeping, with “nuisance” defined in clause 61. [Interruption.] I can tell that he is eagerly anticipating our discussion of the precise provisions of clause 61.
On the support point, the purpose of some of these provisions is to help people into support. I think all of us would agree that the first step should be to support people with mental health issues, drug problems and alcohol problems, and to support them into housing. Everybody agrees that support should be the first step. That is what the police and local authorities should do initially, but if that fails and the rough sleeping is preventing a business from operating or adversely impacting other members of society, there needs to be some backstop power. That is the balance that we have tried to strike in these clauses, as we discussed before lunch.
Question put, That the clause stand part of the Bill.
Chris Philp
I beg to move amendment 77, in clause 56, page 51, line 13, after “application” insert “by complaint”.
This amendment provides for applications for nuisance rough sleeping prevention orders to be made by complaint.
The Chair
With this it will be convenient to discuss the following:
Clause stand part.
Clause 57 stand part.
Government amendments 78 to 83.
Clauses 58 to 60 stand part.
Chris Philp
Clauses 56 to 60 provide a further tool for local authorities and the police to tackle nuisance—I stress the word “nuisance”—rough sleeping: namely, nuisance rough sleeping prevention orders. The clauses set out how the orders will work, specify the maximum time they can last and how they can be varied and discharged, and provide an avenue for appeals.
The clauses essentially mirror clauses 43 to 47 in relation to nuisance begging protection orders, so I will not repeat what I said about those clauses this morning. Similarly, amendments 77 to 83 mirror for nuisance rough sleeping prevention orders amendments 70 to 76 in respect of nuisance begging prevention orders, which we debated this morning. I will of course respond to any points raised by the shadow Minister.
Alex Norris
The Minister is right that we have already given these issues a run-out, so I will not rehash our earlier debate. With specific regard to these clauses, however, they give us at least some degree of comfort that this regime will be reliant on a magistrates court—an impartial arbiter. There is legitimate concern that a constable who might have had some training but not very much, or someone from the local authority—we will have very little sense of what training they have—could make profound judgments with respect to the first two tiers of powers, relating to directions and notices, with minimal oversight and recourse to justice. At least we will get an airing in a magistrates court. I suspect the magistrates will wonder why they are having to deal with the problem and why it was not dealt with by either an earlier intervention or a more positive intervention to help change someone’s behaviour.
Clause 58 allows a duration of five years for a nuisance rough sleeping prevention order. That is five years of not being allowed to go to a certain place or act in a certain way. There are now actually very few crimes, except the most serious, for which someone would be prevented from doing anything for five years. I wonder what the logic is for that duration. Most of what is in these clauses is a counterpart to what is in the clauses on nuisance begging, and the line drawn there is three years. I am interested in the difference.
Again, we will not support the lead clause in this group, clause 56, because we think that these clauses should not be in the Bill at all.
Chris Philp
I think that the maximum period for a nuisance begging prevention order, as opposed to notice, was five years, which mirrors this provision. The lengths of time match up. As we discussed this morning, the power is for the court to use, and it can use its discretion. It is a maximum duration; the court can use its discretion to hand down a shorter period. Courts often pass prison sentences that are lower than the maximum, and that may well be the case here as well.
Amendment 77 agreed to.
Question put, That the clause, as amended, stand part of the Bill.
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.
Alex Norris
I do think that was a useful worked exercise. The problem is that the Minister only did half of it, because he only applied the test of whether something causes damage, disruption, harassment or distress. He missed the test of whether something is capable of causing damage, disruption, harassment or distress. Will he do the exercise again for the “capable” test?
Chris Philp
The behaviour concerned might actually cause damage, distress or disruption, but it might also be capable of doing so. For example, someone might set up a tented encampment in a place that blocks a business premises. Let us imagine that they set it up at 4 o’clock in the morning, when the business is closed and there is no one coming in or out. At that point, it is not actually causing disruption. Let us say that the business wants to open at 6 o’clock in the morning. Would we want the police to wait until the business opens and the customers or the employees try to come in, when disruption is actually caused and the provisions are engaged? The police might want the power to take action not when the disruption is actually caused, but when it becomes reasonably foreseeable that it will be—in this case, in advance of the business premises opening.
Members can imagine circumstances like the one I just outlined where, although disruption is not being caused at that moment, it is clear that it is capable of being caused, and it is reasonably foreseeable that such disruption will be caused.
Jess Phillips
I just wonder what else that is annoying that might be outside the front of someone’s business that we could criminalise. The bin lorry? It seems like there are loads of things. Cars get parked outside the front of businesses where I live, and it impedes the Warburtons van bringing in the loaves. The literally happens outside the corner shop right next to my house—bloody criminal! Why is it just homeless people that are a nuisance? I find cars to be a massive nuisance all the time. There are loads of things that are a nuisance. Kids going in and out of school? Nuisance. Criminalise ’em!
Chris Philp
I thank the hon. Lady for her characteristically emollient intervention. We are defining precisely what “nuisance” means, not using it as a general term. It means damage, disruption, distress or a health, safety or security risk. We are being precise about what we mean. We are not using it in a general sense; we are being specific.
The hon. Lady mentions a car blocking the highway and asks whether we should criminalise that. I refer her to section 137 of the Highways Act 1980, with which she is no doubt intimately familiar, which does precisely that. It criminalises wilfully obstructing a highway. We are not just picking on people whose disruption is associated with rough sleeping. There are plenty of other things on the statute book, including wilful obstruction of the highway, that seek to do similar things. I do not think it is reasonable to say that this is a unique set of provisions that have no analogues anywhere else on the statute book. [Interruption.] Would the hon. Lady like to make another intervention?
Jess Phillips
Oh yes, absolutely. It seems to me that there is this idea that it would cause distress to somebody to see a homeless person in a tent. I have greater faith in the British public than that. They are not just immediately distressed by somebody who is down and out. I am not immediately distressed by homeless people; I am distressed that they are homeless, but my distress is directed at the Government—who, by the way, I also find to be quite a nuisance, but I am not for one second suggesting that we should criminalise the Minister.
Chris Philp
I thank the hon. Lady for her forbearance. Of course we want to combat homelessness. That is why £2 billion is being spent for that purpose. On the serious point, the Government’s position is categorically not that homeless people—or rough speakers, to be precise—cause distress. That is not what the Bill says. Distress is defined in clause 61(5) as being caused by
“the use of threatening, intimidating, abusive or insulting words or behaviour, or disorderly behaviour”.
The Bill is not saying that rough sleepers in general automatically cause distress. It is only saying that threatening, intimidating, abusive or insulting words are taken as causing distress. It is really important not to mischaracterise what the clause does. It is very precise and specific, and it is very limited, for all the reasons that the Opposition have been pointing out.
Jess Phillips
Just to push my example, if I am obstructed in my daily life by a group of schoolchildren doing exactly that—using abusive, insulting words, saying “bitch” and things when I walk past—why is that any different? Surely causing distress to people is already illegal, so we do not need to define it in terms of rough sleepers.
Chris Philp
The hon. Lady asked what happens if she was insulted in the way she describes, which I am sure rarely happens. There are provisions in the Public Order Act 1986, particularly sections 4, 4A and 5—
Chris Philp
I am not sure if Hansard is going to record that, but I will take it as a compliment. I do try to stay on top of the detail. There are provisions in that Act that would afford the hon. Lady some protection in those circumstances.
This definition is very important, and we are trying to strike a balance. We do not want to criminalise rough sleeping in general or make a generic assertion that rough sleeping causes distress automatically. It does not, and the Bill does not say that. We are trying to define some very precise circumstances for when this clause is engaged to ensure that if interventions to support people either do not work or get declined, there is some backstop power to ensure that members of wider society do not suffer adverse consequences. We are trying to achieve that protection, and this clause is carefully crafted to strike the right balance.
Jess Phillips
I will not speak for long. The Minister and I have had a back and forth, and for the benefit of Hansard, when I called him a geek it was definitely a compliment. He is without a doubt on top of the detail not only of this Bill but of how it interacts with other legislation. It is a pleasure to sit on a Committee with a Minister in that position. I am a massive geek about how all these nice subsections will actually pan out in reality.
My main problem with the clause, although I appreciate it is less specific than the one on begging that we debated this morning, is that I am still at a loss about why we need laws specifically about nuisances caused by the most vulnerable people in society. There are so many things in the public realm that cause me much more nuisance than homeless people or people rough sleeping, such as the sexism that women experience in the street all the time. I get that we have to replace the vagrancy law and that we need guidelines, but do we really need specific laws about those people? Absolutely we need the provisions in the Public Order Act 1980, the year before I was born—
Jess Phillips
Oh, 1986. I was actually five years old then. I was a big fan of it back then.
But why do we need a specific law about this group of people? Why can they not be covered by the laws on the nuisances, insults and harassment that we can all define easily? That is the bit that I find alarming. If people are shooting up in the street or are openly engaged in dangerous practices such as pimping people, we are talking about a different thing, but there are laws covering those things already. If only I were the Minister, I could tell the Committee which ones. I am not him, but I am fairly certain they exist.
My brother, who slept on the streets, said to me, “It isn’t the drugs that will kill me; it’s the stigma. The stigma is the thing that is going to kill me.” He has been clean for seven years, and he said that when he stands at the school gate to pick up his children, he feels like everyone knows he was a homeless drug addict. The idea that you are less—that you are a vagrant, a tramp—never leaves you. That is why I do not want to see people like my brother, who, as I said earlier, was a nuisance to me on many occasions—I just do not want to write that stigma into the law.
Chris Philp
Just to make it clear, at the end of subsection (2)(a) there is the critical word “and”. It is not enough simply to be sleeping rough or intending to sleep rough; it needs to be clear in addition that a nuisance is being committed. The clause requires both conditions to be met; one alone is not enough.
Alex Norris
I appreciate that, and I was getting on to that part of my argument, but that does not dilute the impact of the language “intending to sleep rough”, which is a broad and subjective judgment that we will be asking people likely to have little or no training in this regard to make. The Minister says that the definition is precise. There is nothing precise about that.
As I said, subsection (2)(b) refers to nuisance. We are given a definition of nuisance that is not specific, precise or, I would argue, limited. The Minister half-applied his test to the example given by my hon. Friend the Member for Stockton North of the tent in the field. He was keen, and made a great display of going through the factors that could constitute having caused, or being in the act of causing, nuisance, but he did not address the factors that constituted being capable of causing it; he would not do that half of the exercise.
Chris Philp
Is the shadow Minister saying that if the words “capable of” were deleted, he would support the clause?
Alex Norris
It would be an improvement to the clause, but that is not what is in the Bill, and we would still have problems with “intending to sleep rough”. There are even issues with “causing” in subsection (5), which mean that we cannot support it. That subsection says,
“‘damage’ includes…damage to a place”,
and being capable of causing damage. If I sleep on a park bench, am I capable of damaging it? Well, I am using it for a purpose for which it was not intended, so, yes, presumably there is a risk of causing damage.
Chris Philp
With respect, I do not think that sleeping on a bench would cause damage to it, would it?
Alex Norris
Using anything for a purpose for which it was not intended risks damage, because the possibility of that damage has not been designed out. What if someone is sleeping on the bench persistently over a period? “Damage” could be breaking one of the wooden slats, but it could also be whittling down the paint or varnish. The Minister rolls his eyes. If he gave the commitment today that he personally will make all these decisions every day across the country, well, that might give me some comfort, but he clearly will not apply the test. It will be applied by possibly relatively junior members of staff with very little training. If the test is applied overly officiously, and there is a clear risk of that, then the damage to an individual could be considerable, and their recourse minimal. That is why this point matters, even in an extreme case.
Subsection (5)(c) refers to
“damage to the environment (including excessive noise, smells, litter or deposits of waste)”.
“Smells” is particularly problematic. That is part of the stigma relating to people who do not have a roof over their head. Smelling could be enough to make them a nuisance. That is a real problem. My hon. Friend the Member for Birmingham, Yardley talked about the stigma test; the provision does not pass that test.
Alex Norris
As do the Government, as the hon. Gentleman says, but the question is whether that balance has been found. I do not see anything in the real-life example that he used that would not be covered by section 43 of the Anti-social Behaviour, Crime and Policing Act 2014. That notice could be used in that way. When I put that to the Minister in the previous debate, his only quibble, which I found a little hard to accept, was that these notices will give so much more support and that a reliance on section 43 would not provide enough help to homeless people. That does not chime with reality.
I am emerging from these discussions with much more hope than I had thought. I believe, much more than I did when the Bill was published, that the Government want to do something really limited in this space, but there is a significant landing zone for them to do more. We are interested in working on that point between stages. I understand how the mistake—the original sin—has happened. There is an elegance in trying to create a duplicate arrangement with nuisance begging, but actually that misses the point.
We will not be supporting the clause, for the reasons that we have given. Indeed, I am not sure how the Minister can support it, either, because it fails his own tests. We will have to divide the Committee. I think we can do much better than this, and, as I have said, there is a landing zone for that.
Chris Philp
I have made my points already, so I do not want to irritate the Committee by repeating them. The definition is pretty specific. As the shadow Minister has said, it is much more limited—and intentionally so—than the nuisance begging provisions that we debated this morning. However, if there are ways of ensuring that the right balance is struck, as my hon. Friend the Member for Harrogate and Knaresborough said, we are always willing to look at them. It is our intention to make this limited, narrow and specific. I think we have done that, but we are always open to ways of improving it.
The Chair
I am not permitted to have a view on these matters, but I will say how welcome it is to see displays of courtesy on the Committee.
Question put, That the clause stand part of the Bill.
Chris Philp
I hope that we now sail into less contentious waters. This clause recreates, in modern terminology, the current offence from the Vagrancy Act 1824 of being on enclosed premises for unlawful purposes. While a great deal of the Vagrancy Act is outdated and needs either repealing or replacing, we know through engagement with the police and other stakeholders that this particular offence is still used. It is still useful when someone is found on premises where they should not be and there are reasonable grounds to suspect that they are intending to commit a crime. It could be any crime—it does not necessarily have to be linked to begging or rough sleeping, and is probably rarely, if ever, linked in that way. Accordingly, this clause makes it an offence for a person to trespass on any premises, which covers
“any building, part of a building or enclosed area”,
with the intention to commit any offence. The maximum penalty for this summary offence upon summary conviction is three months’ imprisonment, a level 3 fine, which is £1,000, or both.
I checked whether there had been convictions using the offence from the Vagrancy Act, and there have been quite a few in the last few years, numbering in the hundreds, so it is actually used by police. I was made aware of a case involving a former premier league footballer. Somebody was found on their residential premises. They had not stolen anything, but it was reasonably suspected that they might, and a conviction was secured using those provisions. The offence is useful for the police in some circumstances, which is why we are seeking to legislate here.
Question put and agreed to.
Clause 62 accordingly ordered to stand part of the Bill.
Clause 63
Power to require person’s details
Question proposed, That the clause stand part of the Bill.
Chris Philp
Clauses 63 and 64 make supplementary provision relating to earlier clauses on nuisance begging and, I hesitate to say, nuisance rough sleeping. Clause 63 enables an authorised person, defined as a constable or local authority, seeking to issue a direction or prevention notice, or to apply to a court for a prevention order, to require a person to provide specified personal details, specifically their name, date of birth and, if applicable, their address.
Failure to provide those details, or giving false information, will be an offence subject to a maximum penalty of one month’s imprisonment, a fine, or both. That is necessary because, otherwise, an individual who does not want to receive a direction notice or order could simply refuse to provide their details. Failure to comply with the process required to make the direction notice or order is a form of non-compliance and carries the same maximum penalty as failing to comply with the direction notice or order itself.
Clause 64 defines the terms “relevant local authority” and “local authority” for the purposes of clauses 38 to 63. In essence, the definition focuses primarily on the area in which the nuisance begging or nuisance rough sleeping occurred, or the area for which the relevant notice direction or order was given. On that basis, I commend clauses 63 and 64 to the Committee.
Alex Norris
I will be very brief, because I do not want to repeat the arguments that I have already made. Clause 64 defines “local authority” and addresses local councils. I have raised this issue a number of times, but have not asked a direct question. What guidance will be made available to enable local authority staff to apply the provisions in the way outlined by the Minister, as opposed to an overly officious, harmful and unhelpful way?
Chris Philp
Clause 64 relates to which local authority can issue the notice, which is a geographic question. The hon. Gentleman asks a different but valid question about the guidance. I repeat what I said earlier: the guidance will make clear that the first resort, as he and we would want, should always be to help people who are rough sleeping or having issues in their life that cause them to beg, whether that is support with mental health issues, drug treatment, alcohol treatment or support into housing. I reiterate what I said earlier: the guidance will emphasise support, help and treatment, if necessary, as the first action.
Question put and agreed to.
Clause 63 accordingly ordered to stand part of the Bill.
Clause 64 ordered to stand part of the Bill.
Clause 65
Circumstances in which court may attach power of arrest to injunction
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Amendment 144, in clause 66, page 58, line 18, at end insert—
“in subsection (4), after ‘48 hours’ insert—
‘, unless—
(a) the individual has been issued with a direction under this section, relating to the same or a substantially similar or related location or behaviour, on one previous occasion, in which case the exclusion period may extend to seven days;
(b) the individual has been issued with a direction under this section, relating to the same or a substantially similar or related location or behaviour, on more than one previous occasion, in which case the exclusion period may extend to twenty-eight days.’”
This amendment would allow for longer exclusion periods under section 35 of the Anti-social behaviour, Crime and Policing Act 2014 for individuals who receive more than one such direction.
Clauses 66 and 67 stand part.
Amendment 145, in clause 68, page 58, line 37, at end insert—
“(2) Within twelve months of Royal Assent to this Bill, the Secretary of State must lay before Parliament a report on police use of the power to make public spaces protection orders and expedited orders under Chapter 2 of Part 4 of the Anti-social behaviour, Crime and Policing Act 2014 (as amended by this Bill).”
This amendment would require the Secretary of State to produce a report on the police’s use of PSPO powers.
Clause 68 stand part.
That schedule 6 be the Sixth schedule to the Bill.
Clause 69 stand part.
That schedule 7 be the Seventh schedule to the Bill.
Clause 70 stand part.
Government new clause 21—Dispersal powers: removal of senior police officer authorisation.
Government new clause 22—Dispersal powers: extension to local authorities.
Chris Philp
This is quite a large group of amendments, but I shall try to be concise. Before I turn to new clauses 21 and 22, which I have tabled with the Under-Secretary of State for Justice, my hon. Friend the Member for Newbury, let me set out briefly why clauses 65 to 70 and schedules 6 and 7 should be included in the Bill.
The Government have a strong track record on tackling antisocial behaviour. In March 2023, we launched our antisocial behaviour action plan, which was backed by £160 million of new funding. The plan sets out a new framework for the Government, police forces, police and crime commissioners, local authorities and other partners, including housing associations and youth offending teams, to work together to prevent and tackle antisocial behaviour.
Off the back of the action plan, we launched the community safety partnership review and the antisocial behaviour powers consultation in March 2023. The consultation included a range of proposals to strengthen the powers in the Anti-social Behaviour, Crime and Policing Act 2014. The majority of respondents supported most of the proposals and, as a result, we are taking the opportunity presented by the Bill to back our police, local authorities and other partners to do even more to tackle the blight of antisocial behaviour.
Clauses 65 to 70 make provision for strengthened ASB powers as consulted on last year. Clause 65 provides that a power of arrest can be attached to any civil injunction by the court where it deems it appropriate. Clause 66 extends the period for which a dispersal direction can be in place from 48 hours to 72 hours and, following the issuing of a closure notice, extends from 48 hours to 72 hours the timeframe available to the relevant agency to apply to a magistrates court for a closure order.
Clause 67 amends community protection notices, to which the hon. Member for Nottingham North referred, to lower the age at which they can be given from 16 years to 10 years, bringing them in line with the criminal age of responsibility and the age at which civil injunctions might apply. Clause 68 and schedule 6 give police, in addition to local authorities, the power to issue public safety protection orders. Clause 69 and schedule 7 enable registered social housing providers to use both the closure notice and the closure order to quickly close premises that are being used, or are likely to be used, to commit nuisance or disorder. Clause 70 expands the community safety accreditation scheme so that CSAS officers can impose fixed penalty notices for a wider range of offences, and it increases the upper limit of the value of those FPNs from £100 to £500.
Finally, Government new clauses 20 and 21 build on those provisions by further reforming the dispersal powers provided for in part 3 of the Anti-social Behaviour, Crime and Policing Act. The powers will help the police and others, including local authorities, to tackle antisocial behaviour, and follow a consultation that we ran last year. On that basis, I hope that the Committee can accept the proposals.
Amendments 144 and 145 were tabled by the Opposition, so it would be courteous and appropriate to respond to them once the hon. Member for Nottingham North has had the opportunity to speak to them.
Alex Norris
Antisocial behaviour is a scourge on communities, and it is right that in legislation of this type we seek to ensure that police and local authorities have the correct tools to combat it. This is an issue about which our constituents have serious concerns and, like all right hon. and hon. Members, I have lots of conversations about this with people locally. Tackling antisocial behaviour is one of their top priorities, so we are broadly supportive of the measures in the Bill, although we might have gone a little further.
We have to ground this debate in a conversation about why we are where we are. We should test the effectiveness of the Government’s action on antisocial behaviour, but the roots of the challenges lie in a diminution of neighbourhood policing: there are still 10,000 fewer on the frontline, and our communities have suffered as a result. A move away from proper problem-solving, problem-oriented policing has led us to a lack of focus on the issue. That is why we have many more challenges than we would like.
Chris Philp
I will briefly reply to some of the points raised by the shadow Minister. On clause 21, and the removal of the requirement for an inspector to make the authorisation, any officer of any rank can make that authorisation to speed things up where necessary. In relation to his points regarding amendment 144, which I think extends the exclusion period from seven to 28 days—
Alex Norris
It is seven days for the second offence and 28 days for a subsequent offence.
Chris Philp
Yes. I understand the thinking behind the amendment, and obviously I have a great deal of sympathy for it, as he can probably imagine. The Government considered it, but we need to be cognisant of the restrictions imposed by various articles of the European convention on human rights, on which views around the House vary, to put it mildly. Clearly, if one goes beyond a certain point, one begins to stretch the ECHR articles, for example, concerning freedom of assembly. There is a balancing exercise between what is permitted in domestic law and those European convention rights, and they can conflict. That is why we have set the boundary where we have.
Alex Norris
That is an important answer, but I am conscious that nuisance begging prevention notices, for example, could mean that someone has to quit an area for a period as long as three years. Surely that could not be the case for people engaged in nuisance begging, but not for those who are engaging in antisocial behaviour.
Chris Philp
Clearly, it is at the maximum and will follow fact-specific consideration. A calibration exercise can be performed, and there will be guidance around it, which can ensure that that balance is appropriately struck.
In response to Opposition amendment 145, I will of course mention the regular mechanisms for reviewing legislation, including review three to five years after passage. The Government regularly review the use of police powers under the 2014 Act. In fact, in November last year, just a couple of months ago, the Government reviewed police perceptions of the powers in that Act. We published a report on gov.uk that included data and police perceptions of the use of the 2014 Act powers, including public spaces protection orders. I hope that illustrates that the review of these powers is not just a theoretical exercise that Ministers refer to in resisting Opposition amendments; it actually happens.
On the shadow Minister’s point about the interaction between police and crime commissioners and local councillors, he is right to say that the relationship between elected councillors and the council is a bit different from that between PCCs and the police. While a PCC sets the budget and strategic priorities and holds the police to account, they do not, for obvious reasons, have operational control over the police; they cannot direct the police. He is right to say that the relationships are a bit different; none the less the PCC has an important role to play in co-ordinating, convening and holding the police to account. Although there are slight differences, I think strengthening the role of the PCC in the system is useful and a good step forward. The public mostly know who the PCC is and hold them accountable for the delivery of public priorities on crime. I accept that the shadow Minister raises a fair point, but I think we should welcome the involvement of PCCs.
Question put and agreed to.
Clause 65 accordingly ordered to stand part of the Bill.
Clause 66
Maximum period of certain directions, notices and orders
Amendment proposed: 144, in clause 66, page 58, line 18, at end insert—
“in subsection (4), after “48 hours” insert—
“, unless—
(a) the individual has been issued with a direction under this section, relating to the same or a substantially similar or related location or behaviour, on one previous occasion, in which case the exclusion period may extend to seven days;
(b) the individual has been issued with a direction under this section, relating to the same or a substantially similar or related location or behaviour, on more than one previous occasion, in which case the exclusion period may extend to twenty-eight days.””—(Alex Norris.)
This amendment would allow for longer exclusion periods under section 35 of the Anti-social behaviour, Crime and Policing Act 2014 for individuals who receive more than one such direction.
The Chair
With this it will be convenient to discuss the following:
Schedule 8.
New clause 42—Requirement for anti-social behaviour lead—
“(1) The chief officer of each police force in England and Wales must appoint a designated officer for each neighbourhood within the relevant force area to act as the force’s lead on work relating to anti-social behaviour in that neighbourhood area.”—(Alex Norris.)
This new clause would require each police force to appoint a designated officer for each neighbourhood area to lead work on anti-social behaviour in that area.
Chris Philp
As darkness falls over the Thames outside, I rise to speak to clause 71 and its associated schedule 8, along with new clause 42. Clause 71 and its associated schedule give effect to commitments made in part 2 of the police and crime commissioner review by expanding the ways in which local policing bodies work with relevant agencies to tackle antisocial behaviour.
The provisions also define the role of local policing bodies in the implementation of ASB case reviews, which afford a vital safety net for victims to request a review of their case. We recognise that no single agency has sole responsibility for antisocial behaviour. Preventing and tackling ASB depends on strong collaborative working between the police, local authorities, housing associations, health services and a range of other partners. Agencies must, however, collaborate and share information to create a full picture.
Government new clause 42 is—Sir Graham, I have just noticed that new clause 42 is, in fact, an Opposition new clause. I was just testing to see who is awake! I will not speak to the new clause, because I am looking forward to hearing the shadow Minister do so in a minute.
Alex Norris
Exactly, on someone else. But those are important reporting requirements, actually. Having that evidence will be of interest to local communities. I think that transparency could, at times, be challenging for local policing bodies, but that would not be a bad thing.
There are, again, issues relating to antisocial behaviour reviews. We want them to be done properly. We do not want people to get through to the end of the process and feel that they have not been listened to—that would be a double insult, given what they would have already suffered. I do fear that the lessons have never really been learned on the failure of community trigger over the past decade. We do not want to see, particularly with regard to the statistics reviews, a desire to localise blame for failures that often happen at a national level. Nevertheless, that is an argument to have at a later point. We have no issues with the requirements at all.
I have sought to improve the Bill with new clause 42, and I hope the Minister will be minded to show his support for it in other ways, if not directly. If the new clause were to be agreed to, that would be a really important building block in restoring neighbourhood policing for communities across England and Wales, and it would be at the frontline of our battle against antisocial behaviour. As I have said, the diminution and denuding of community policing over 14 years has had a significant impact. That is why half the population now say they rarely ever see the police on the beat—a proportion that has doubled since 2010.
People feel powerless to deal with antisocial behaviour, even though it happens right on their doorstep. That is compounded by the reduction in drug intervention services, as we have discussed in previous debates. Youth service budgets have been cut by £1 billion. Community penalties have halved, and there is a backlog of millions of hours in community payback schemes. We are creating the challenges we face because we are not contesting public space, and we must do something about it. That is what clause 42 offers. It is not a silver bullet, but it would entail rebuilding the fundamentals of good policing: officers serving and protecting their community, which requires the restoration of neighbourhood policing. Communities should know their police officers and be able to approach them directly if they need to.
We know that putting in the hard yards and building relationships makes the difference, and new clause 42 would be the first step towards achieving this. It would introduce a requirement that the
“chief officer of each police force in England and Wales must appoint a designated officer for each neighbourhood…to act as the force’s lead on work relating to anti-social behaviour”.
In other words, there should be a named officer leading on antisocial behaviour in every community. No longer would members of the public feel that, when they report antisocial behaviour, nothing is done and it disappears into the ether. Perhaps they do not have any contact with the police, or perhaps they have to ring 101 and get promised a call-back that does not happen. Instead, an officer embedded in the community—a face and name they recognise—would act as the lead on antisocial behaviour.
That is what the new clause would do, and it does not take much to imagine how an officer could work in this way. They could visit schools, community groups and youth clubs, engage with young people, build trust, try to prevent youngsters from being drawn into antisocial behaviour, and build relationships with parents where there are early concerns. That is what policing used to be, and it is what policing could be: policing in the community and serving the community. I know that there is demand among police officers, who want to be doing this sort of policing. The new clause would be a real enhancement to the Bill, so I hope the Minister is minded to accept it.
Chris Philp
Let me respond to the shadow Minister’s comments on new clause 42. I sympathise with the intention behind it, which is to make sure that there is a named officer working on ASB issues, but we have an important principle: the operational independence of policing.
Neither the Government nor Parliament direct the police to operate or behave in a certain way; they are operationally independent. That separation of powers is a fundamental principle, and instructing the police on how to structure their operations probably crosses the line of operational independence. However, I am sure that police and crime commissioners and chief constables will have heard about the Government’s focus on antisocial behaviour via our ASB action plan. They will have heard our debates in Parliament, including this one, and will understand the significance that we attach to this particular issue.
On accountability and local connections, most forces have safer neighbourhood teams, who are typically attached to a council ward. We certainly have them in London, and they exist in many other places as well. Three or four months ago, we extracted from the police a commitment to always follow all reasonable lines of inquiry in relation to all crime, including where antisocial behaviour crosses the criminal threshold. That is a National Police Chiefs’ Council commitment and we expect all forces to deliver it, including for the criminal elements of ASB.
On local accountability, we also have police and crime commissioners. If the public want to make sure that the police are held to account for delivering the commitment to always follow up on criminal offences, including criminal ASB, they can contact the police and crime commissioner, who is elected. Their job is to hold the local police forces to account for doing exactly the kind of thing that the shadow Minister outlined.
Jess Phillips
The Minister has somewhat answered my question, but what happens if the police do not follow up on every line of inquiry? Let us be honest: we will all have cases in our constituencies where that has happened.
Chris Philp
That is a great question. We have reached this national commitment, and the National Police Chiefs’ Council has agreed to do this. But how will we know whether it happens? How can we ensure that the police deliver on that promise? First, we in the Home Office are following up via the National Policing Board. We have a meeting next week—I think it is on 30 or 31 January—and the first item on the agenda is investigations into crime. I will press the police chiefs particularly on the delivery of this commitment. Secondly, Chief Inspector of Constabulary Andy Cooke, former chief constable of Merseyside police, will conduct a thematic inspection of this issue in the spring, checking up on every police force in the country to ensure that they are actually doing this.
Thirdly, the commitment is being incorporated into the regular cycle of Peel inspections. Every couple of years, every police force is inspected. The commitment is going to be checked up on as part of that regular series of inspections. I also expect Members of Parliament and police and crime commissioners to hold the police to account. If we ever hear examples of the police not delivering this commitment, we should be asking the police about that.
The measure was inspired by the work done by Chief Constable Stephen Watson in Greater Manchester, which Sir Graham and I were discussing before the Committee started. He was appointed a couple of years ago and instituted this policy: always following up reasonable lines of inquiry for every criminal offence; no such thing as minor crime. That approach led to a 44% increase in arrests in Greater Manchester, and some previously closed down custody suites and magistrates courts had to be reopened because a load more people were being arrested. We are looking to apply that approach nationally. Of course, the police are never going to get it 100%, but it is the job of parliamentarians and the chief inspector to hold them to account and get as close to 100% as possible. We discussed facial recognition. CCTV evidence, for example, is a critical part of that for ASB and for all crime types.
Jess Phillips
The Minister’s story about Manchester was great and a delight to hear; I hope that is replicated elsewhere because of this scheme. Are the Government committing to opening magistrates courts that have been closed in order to deal with that capacity?
Chris Philp
Magistrates courts are, of course, a matter for the Ministry of Justice. I am sure my MOJ colleagues will do whatever is necessary to ensure appropriate arrangements are in place. I know that they labour night and day—“labour” meaning work—to make sure the right arrangements are in place. I fear I may be about to stretch Sir Graham’s patience in terms of scope.
I hope that the shadow Minister, the hon. Member for Nottingham North, will hear that I am in great sympathy with the spirit of the new clause. However, for reasons of police operational independence and because the police and crime commissioner has a role in terms of accountability, I do not think new clause 41 is appropriate. But I understand and appreciate its intent.
Alex Norris
I understand, Sir Graham, that I can have a second bite at the cherry; I think I am in order. Very briefly—I would not want to stretch your patience either—I am grateful for the Minister’s response, although I think that he is in danger of falling into a trap, as the Home Office sometimes does, when it comes to defending the status quo. Neighbourhood teams at the level of 10,000 people, which would be a council ward—that is not what we are talking about here. That is part of the public disconnect about scale.
Similarly, the point about accountability to the police and crime commissioner is very good; that is an important part of the democratic process. I have a lot more enthusiasm than perhaps others have expressed previously for that role and its importance. However, my police and crime commissioner has nearly a million people in her footprint—her footprint is by no means the biggest—so there is a challenge about operating at the right scale.
On the Minister’s point about all reasonable lines of enquiry—well, we will see. It very much remains to be seen whether that really is going to be meaningful beyond the rhetoric, but I am pleased to hear the Minister say that he thinks that applies more broadly. One of the most pernicious concepts is the idea of low-level antisocial behaviour; all sorts of problems are allowed to develop and a lot of misery is caused by looking at the issue in that way. That should not ever be the view we take.
The Minister’s point about operational independence is a good one and it is probably enough for me to resolve not to push my new clause to a vote. Perhaps I will come back with a different way of addressing the issue.
Question put and agreed to.
Clause 71 accordingly ordered to stand part of the Bill.
Schedule 8 agreed to.
Ordered, That further consideration be now adjourned. —(Scott Mann.)
Criminal Justice Bill (Thirteenth sitting) Debate
Full Debate: Read Full DebateDepartment: Home Office
Chris Philp
Main Page: Chris Philp (Conservative - Croydon South)Department Debates - View all Chris Philp's debates with the Home Office
Criminal Justice Bill (Thirteenth sitting)
Chris Philp ExcerptsThursday 25th January 2024
(10 months, 1 week ago)
Public Bill CommitteesRead Full debate Criminal Justice Bill 2023-24 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 25 January 2024 - (25 Jan 2024)
The Chair
I have a couple of preliminary announcements. Members should send their speaking notes, if they have any, by email to hansardnotes@parliament.uk. That helps to get the transcription done and made available to you as quickly as possible. Please switch electronic devices to silent; I have just checked mine, so hopefully it is okay. Tea and coffee are not allowed during sittings; that is just one of those things.
Clause 72
Crime and disorder strategies
Question proposed, That the clause stand part of the Bill.
The Minister for Crime, Policing and Fire (Chris Philp)
It is a pleasure, as always, to serve under your benevolent and wise chairmanship, Dame Angela.
The clause confers a new power on police and crime commissioners and other local policing bodies to make recommendations on the activity of community safety partnerships and, in turn, places a duty on community safety partnerships to consider those recommendations. Community safety partnerships will be duty-bound to consider recommendations, but they are not under a duty to implement them. However, if a partnership does not implement the recommendations, it must share its reasons for not doing so with the relevant local policing body, most likely the PCC.
The feedback from part 2 of the police and crime commissioner review, conducted by the Home Office in 2021, was that while the importance of local partnerships such as CSPs was widely acknowledged, they were not being used as effectively as they could be. Every public service should be accountable to the public, and to the local communities they serve. This provision will strengthen the accountability and visibility of CSPs and improve how they work with the relevant policing body to tackle crime, disorder and antisocial behaviour.
No one single agency can address all drivers of crime and antisocial behaviour, so partnership working between policing, local authorities, local education providers, the prisons, probation service, mental health trusts and so on are all very important. This measure will take a step towards formalising more that kind of collaboration.
I take the view, as I am sure other Members here do, that police and crime commissioners as directly elected representatives of the local people are particularly well placed to convene groups. More often than not, they chair the local criminal justice board. They have a lot of public visibility, convening power and influence, and provide visible public local leadership. The provision helps build on and strengthen the work that PCCs up and down the country are doing together. I commend the clause to the Committee.
Alex Norris (Nottingham North) (Lab/Co-op)
It is a pleasure to serve with you in the Chair, Dame Angela.
I am a community safety partnership enthusiast. The partnerships, which were established under the Crime and Disorder Act 1998, are a crucial forum for leadership, partnership working around crime prevention and reduction, and problem solving. I chaired my partnership in Nottingham a decade or so ago, and saw at first hand the impact of all those partners coming together, with shared priorities and mutual accountability, in a partnership built on trusted, close relationships and focused on solving problems.
It is with a degree of sadness that I say that partnerships have fallen in prominence and impact in recent years. One of the major challenges these bodies have found, and one of the limiting factors to the proposals in the Bill, is that austerity has bitten the partners that formed CSPs, certainly as regards funding, and partners have pulled away. In many cases, we have lost the shared data and insight function, and some of the things that brought partners to the table. Some of the extras done by CSPs are seen as nice-to-haves, rather than crucial functions.
As a result, there is a danger, certainly in some parts of the country, of the partnerships becoming meetings, rather than problem-solving bodies. Of course, whatever saving is made is lost later, through the impact on the criminal justice process. Certainly, if I ever get the chance to sit where the Minister sits, I will seek to reallocate those bodies and use them to their fullest extent, because we know the impact they can have.
In the meantime, we have what the Government have offered us. I probed the issue a little in our evidence session with the police and crime commissioners, and the real impact of this measure is that we are setting the police and crime commissioner or the relevant deputy Mayor as first among equals, and giving them higher status in CSPs. They are clearly to be given primacy. I thought about voting against this clause, but I talked to PCCs and local authorities, and they have fewer concerns than I do. The requirement is relatively light, in the sense that the power is to make recommendations, rather than to direct. That is probably right, so I have not chosen to vote against.
I have some degree of enthusiasm for what the Minister said about public transparency on decisions and recommendations. If recommendations are rejected, at least there will be an explanation why; that is probably enough. We should make it clear—I hope that the Minister will—that circumstances in which this power was necessary would generally reflect a failure. If a PCC needs to direct their CSP, there is no doubt a bigger problem in play.
What we want—I am sure that the Minister does as well—is a family of organisations across sectors in a community. We are talking about principally public sector organisations, but also bodies in the community and voluntary sector and, to some degree, the private sector, coming together on a basis of mutual trust to identify the common challenges for crime prevention and community safety in an area. They should have agreed priorities and plans based on good-quality data, insight and understanding of what each organisation is doing. Those are all parts of the puzzle. They should work to common goals in the interests of their community. That is easy to say, but it can be a difficult alchemy to achieve sometimes. However, that is what makes change, and that is what we need to see from CSPs. It will drive us away from what we have sadly seen in recent years.
There has been a move to counting crimes, and a move away from problem solving and problem-oriented policing. I have to say, there is minimal value to having one partner able to trump the rest. However, in cases of dysfunction, it will be a valuable asset for a police and crime commissioner or a deputy Mayor for policing to be able to say, “Hang on a minute. We have the ultimate mandate in this area. We don’t think things are working. This is how they ought to work.” Every time this provision is used, it will be a sign of failure, rather than success, but nevertheless it probably does add some value, so we will not oppose it.
Question put and agreed to.
Clause 72 accordingly ordered to stand part of the Bill.
Clause 73
Ethical policing (including duty of candour)
Jess Phillips (Birmingham, Yardley) (Lab)
The enormous list of amendments in my name—it is time for everybody to strap in—is not necessarily a criticism of police forces, but is real recognition that women in our country do not trust the police. That is dangerous, because the women I work with have no choice but to trust the police. It is not a privileged position that they can take; they have to trust them, but they do not.
Clause 73 relates to the College of Policing’s code of ethics, but there is nothing at all about police-perpetrated abuse in it. Neither the code of ethics nor the standards of professional behaviour makes clear that police-perpetrated domestic abuse is contrary to the standards required by a police officer. Clause 73 should be amended to make it explicit that ethical policing also entails zero tolerance for violence and other forms of abuse against women and girls by police officers and staff. Amendment 135 does just that.
Why that is important should be pretty obvious. Conduct that constitutes domestic abuse or sexual violence should be clearly specified as being a breach of the code of ethics and of standards of professional behaviour, whether committed on or off duty. It is necessary to spell that out in legislation, because police forces still frequently take the approach that domestic abuse committed while an officer is off duty discredits the officer personally, but does not constitute a breach of the code of ethics or the standards of professional behaviour, as it occurred in the officer’s private life.
The Independent Office for Police Conduct’s guidance says:
“The Standards of Professional Behaviour and the obligations that they impose will be assessed in context, which includes whether they are on or off-duty at the material time. Police officers have a right to a private life”—
they do not have the right to be a domestic abuser, though—
“which must be factored into any assessment. Assessments of seriousness and public interest should include consideration of whether an off-duty behaviour discredits the police service.”
David Carrick was off duty when he raped all those women.
Forces are seizing on this in some cases to say that domestic abuse is personally discrediting for the officer, but not the police service. Jackie, an experienced police officer, was the victim of domestic abuse by her police officer husband. She reported the abuse to her force, but no criminal charges were brought, on the basis that there was not a realistic prospect of conviction because it was her word against her ex-partner’s. Misconduct proceedings were not pursued on that basis; the conduct alleged by Jackie had taken place while both she and her ex-partner had been off duty. It was therefore deemed to be part of their private lives. As a result, Jackie felt unable to continue working for the force. Meanwhile, her ex-partner had been promoted, and holds a leadership role in the force’s violence against women and girls strategic command.
Jackie’s case and others like it send a clear message about the force’s true attitude towards domestic abuse. Other officers have said that seeing how officers such as Jackie have been treated when they have tried to report domestic abuse speaks volumes, and that they would not report domestic abuse themselves, having seen how Jackie and others were treated by the force. Regardless of what the force says about operational pledges or other initiatives, the way it responds to allegations of police-perpetrated domestic abuse has a much greater impact on the willingness of other victims to come forward.
The relevance of abusive behaviour towards women to an officer’s suitability to hold the office of police constable and the impact on public confidence when perpetrators of domestic abuse hold positions in the police are being overlooked. Therefore, there needs to be a clear and unequivocal statement that domestic abuse committed by a police officer, whether on-duty or off-duty, will always discredit the police service if that officer is permitted to continue serving on that force.
Furthermore, subsection 2A(a) in amendment 135 refers to,
“sexual relationships with members of the public whilst acting in their capacity as a police officer”.
Section 1 of the Covert Human Intelligence Sources (Criminal Conduct) Act 2021—some of us were on that Bill Committee as well—amended part II of the Regulation of Investigatory Powers Act 2000 so as to enable the authorisation of CHIS. That includes enabling under- cover police officers to participate in conduct that would otherwise be criminal.
A number of groups, including the Centre for Women’s Justice, the End Violence Against Women coalition, Justice, Women’s Aid and Police Spies Out of Lives, are very concerned about that in light of the significant history of undercover officers engaging in deceitful sexual relationships during the course of their under- cover deployment. A specific prohibition against such relationships should be included in the police code of ethics, making it clear that any such relationship is a breach of the code of ethics and of the duty under the standards of professional behaviour in schedule 2 to the Police (Conduct) Regulations 2020—to
“behave in a manner which does not discredit the police service or undermine public confidence in it, whether on or off duty.”
Amendment 136 aims to ensure that there is independent external oversight to the code of practice from bodies that represent the interests of the victims and survivors whom this code seeks to protect. The Bill currently sets out a range of organisations that need to be consulted regarding the code of practice relating to ethical policing. However, while this code is being implemented following serious failings by policing to adequately protect victims, there is no requirement to consult organisations that protect the rights of victims to ensure that the standards set out in the code are sufficiently robust.
In the previous debate, the Minister said how important partners were in ensuring that things worked well. Amendment 136 would ensure that the interests of victims were entrenched in the code of practice and the duty of candour. We have heard concerns about police marking their own homework, yet the current state of the Bill is like allowing them to set their own questions in the exam. The current provision requires police to act
“in an open and transparent way”.
That should start with openness to external scrutiny by individuals whose role it is to uphold and promote the rights of victims. By including named commissioners as statutory consultees, we can ensure that the standards set out in the code are fit for purpose.
I move on to new clause 48. Gaia Pope-Sutherland was 19 when she died. She was one of a significant number of young women and girls with cases against a man who had served time for child sex offences. Gaia had reported that she had been raped by him, but her case was dropped by the police and dismissed by the Crown Prosecution Service. Her family believed that that was because her case was presented in isolation from all the other independent allegations of violence and abuse. Detectives were said to have been aware of allegations made against this man, who was accused of grooming her as far back as 2014.
Gaia was already suffering from severe post-traumatic stress and living in fear of retaliation from the perpetrator, so the collapse of the case had a devastating impact on her mental health. That contributed to her disappearance and death from hypothermia shortly before the suspect was due to be released from a prison sentence for other child sex offences.
What happened to Gaia is heartbreaking. I have met many victims of sexual violence, and many of them have spoken about how it is not the violence that broke them but the failed state response—that when they turned to the institutions that were supposed to be able to protect them and deliver justice, they were met with incompetence or discrimination and a system that was uncaring and silencing.
Gaia’s heartbroken family have courageously taken up the campaign to change this. They have been pushing for the “Gaia principle”, which stipulates that any failure by a police officer to comply with existing policies and guidance will be considered a professional standards issue and escalated to misconduct in the event that the pattern persists. It is basically trying to make the police do their job. It urges that all police forces investigate sexual violence crimes in line with the national operating model developed from Operation Superior, and that officers be held accountable if they fail to do so.
New clause 48 is a step towards delivering that principle. It makes diligent consideration of all intelligence on a subject—previous convictions, reports or accusations—an unquestionable or overt part of what we expect of our police officers in their service. Repeat offending is a critical issue in the investigation of VAWG. The VAWG national strategic threat risk assessment notes:
“A relatively small number of highly prolific offenders are responsible for a disproportionate amount of crime.”
The Femicide Census tells us that in 59% of intimate partner or relative homicide cases, a history of abuse towards the victim is evident. Research from Respect shows that a quarter of high-harm domestic abuse perpetrators are serial offenders, some having as many as six victims. Between 41% and 59% of Operation Soteria offenders were linked to more than one offence, and that is just the tip of the iceberg. One study sample revealed that 120 undetected rapists, defined as those whose offences met the legal definition of rape or attempted rape but who had never been prosecuted, were responsible for 1,225 interpersonal violence offences, including rape and child sexual and physical abuse.
The picture is clear: we know who these men are and what they are doing, but because of endemic police failure to investigate properly and a lack of co-ordinated professional curiosity, those known perpetrators are acting with impunity. New clause 48 makes the investigation of potential perpetrators a central part of policing. It is unbelievable that I have to say this—the country would think that this is happening—but that must be a part of the standards of their professional behaviour.
The police must live up to that and be held accountable for it. If a serving officer fails to do his or her job properly, they must face consequences and disciplinary processes, and if necessary they must no longer hold that role. That seems obvious, and it is extraordinary that we are debating it, but rape has an appallingly low conviction rate: a perpetrator is held to account in just 1.5% of rape cases. The devastating lived experience of families such as Gaia’s makes it clear that we cannot continue.
The new clause, based on the “Gaia principle”, will ensure that survivors of VAWG are no longer denied justice and left in danger because police investigators fail to investigate a suspect properly. As I said, it is named in memory of 19-year-old Gaia Pope-Sutherland from Dorset, who lost her life following these failures.
Chris Philp
I thank the shadow Minister and the hon. Member for Birmingham, Yardley for explaining their very thoughtful amendments. We will obviously have a stand part debate a bit later, but in short, and for context, clause 73 places a duty on the College of Policing to issue a code of practice relating to ethical policing, which must include a duty of candour, delivering one of the points of learning set out by Bishop James Jones in response to the Hillsborough disaster, which Members of this House and this Committee—including you, of course, Dame Angela—have discussed extensively.
The Government and the House obviously take police integrity and accountability very seriously indeed, which is why the code of ethics and the duty of candour are so important. Amendment 63, in the name of the shadow Minister, asks for information to be set out that specifies what actions are to be considered ethical. Although the Bill is not yet in force, the College of Policing has acted pre-emptively—that is helpful for this Committee, as we have something to look at—and has already published and set out a statutory code of practice for ethical policing under section 39A of the Police Act 1996. It has met the statutory requirement that we are looking to legislate for in this clause already, even though the Bill is not yet in force. Once the Bill is in force, it will have to maintain that code and review it.
Jess Phillips
It would not pick up employment issues raised by one police officer about their police officer husband. The police currently operate on a criminal threshold in an employment environment, which is a dangerous precedent. We would not allow that anywhere else. We do not allow it in here. It would not have helped Jackie in her case. On looking at criminal records or other intelligence—we will come to the intelligence that they are not looking at in a moment—it needs to be explicitly stated that we do not want domestic abusers in our police force.
Chris Philp
We certainly do not want domestic abusers in our police force. To be clear, domestic abuse is rightly a criminal offence. If someone gets convicted of that, it will be on the police national computer. Even if there is not a conviction, because the victim does not want to proceed with a prosecution, the evidential threshold is not met or there is an acquittal or whatever, the police national database, as distinct from the police national computer, records intelligence and information more generally.
Even if there is no conviction, for whatever reason, information that is received gets recorded on the police national database. If there has been an allegation that has not been prosecuted and there is no conviction, that will still show up on the police national database and therefore be considered in the data washing exercise, even if there has not been a criminal conviction.
Jess Phillips
To what end? They will find that somebody made an allegation, but how many result in “no further action”? If they found that there were three allegations against a police officer by three different women, they went, “No further action.” To what end? We are washing it, but I want to put it on after it has been washed.
Chris Philp
It is in order to make decisions about whether the officer concerned meets the standards required for vetting. The hon. Lady made this point a second ago. The standard for employment should be much lower than the standard for criminal conviction. Obviously if there is a criminal conviction, the expectation is that the person will be dismissed. Where there are allegations that are concerning but have not been proved, we would expect that to adversely affect the officer’s vetting status.
We made a change last summer, I think, to say that an officer has to clear vetting not just once when they are first hired—this was a problem in the Carrick and Couzens cases—but throughout their career. If the data washing exercise brings out information that is not necessarily criminal but means that the officer does not meet the vetting standards, we expect action to be taken. I am speaking from memory here, but in something like 150 of those 461 cases, there is now a misconduct investigation, so not criminal. Nine of them are being investigated criminally. About 150 misconduct investigations have been triggered, which will pick up examples such as the one the hon. Lady just mentioned although they do not meet the criminal threshold.
To elaborate on that, the paragraph about discreditable conduct includes the requirement that police officers behave in a manner that
“does not discredit the police service or undermine public confidence”—
“undermine public confidence” is an important phrase—and that is
“whether on or off duty.”
Each case is assessed on its own facts, but I expect— I am sure the hon. Lady would expect this, too—credible allegations, in particular credible repeated allegations, of domestic abuse, even if not prosecuted or convicted, to undermine public confidence in the officer concerned. The hon. Lady would definitely take that view and I would as well. I have not looked at all 150 cases individually, but I expect that a number of those recently uncovered cases include examples such as the one I have set out.
Critically, the data-washing exercise, that check, will now happen on an ongoing and repeated basis, and it will give a lot of assurance. [Interruption.] I apologise— I said 150, but actually 88 cases have been triaged for disciplinary investigation. It was not 150; I was mis-recollecting. It is 88 of the 461. But I hope that gives more confidence to the public, including women, particularly as the vetting will happen on an ongoing basis—we have funded that. Maintaining vetting clearance throughout an officer’s career, which could be 30 years, rather than just having it at the beginning, will help to rebuild confidence.
Jess Phillips
If the vetting has to be ongoing, where is that written into primary legislation? I do not doubt the good faith of the Minister—we have all said as much in Committee—but how can people like me have a guarantee that it will happen forever? Secondly, the Minister made a valiant effort to point out to the shadow Minister, my hon. Friend the Member for Nottingham North, where exactly all the duty-of-candour things appeared in the ethical code of practice for policing. But I have just had a quick scan of that, and it does not mention domestic or sexual violence once.
Chris Philp
Maintaining vetting throughout an officer’s career rather than just at the beginning of it is set out in the vetting code of practice, which was published by the College of Policing, I think, in July last year. The ongoing checking against the police national database is an operational practice. We have put funding behind it, so there is money to pay for it, and the relevant National Police Chiefs’ Council lead has publicly committed to doing it. The hon. Member for Birmingham, Yardley is right that such vetting is not a statutory duty, but the Government have funded it and the police have said that they will do it, so Parliament will hold them to account to ensure that they deliver on that commitment and continue to do so.
The hon. Lady asked about the “Guidance for ethical and professional behaviour in policing”, which was published recently. Some relevant information, which the Committee will want to hear about, is in that document. Two more documents are also relevant, one of which was published earlier this week. This is confusing, because three documents fit under the umbrella of the codes of practice.
The statutory document, under section 39A of the Police Act 1996, was published on 6 December and I quoted from it previously. Two more documents were published in the past few days: “Guidance for ethical and professional behaviour in policing”—also issued by the college, and I can provide a copy—and “Ethical policing principles”. Those three documents should be taken together.
The first of the two new ones is relevant to amendment 135. It has some sections that answer the questions that have just been asked, including the one about inappropriate relationships. The “Guidance for ethical and professional behaviour in policing”, published only a few days ago, has a section on “Fairness and respect”, which includes things such as:
“protect vulnerable people and groups from behaviour that is abusive, harassing, bullying, intimidating, exploitative or victimising”
and
“avoid any behaviour that could cause unreasonable distress or harm, including any behaviour that might interfere with…colleagues’ ability to carry out their duties”.
Clearly, exploitation, which obviously includes domestic abuse, is covered, but so are other things such as victimisation, harassment and abusive behaviour.
Jess Phillips
Does the document say whether that is on or off duty? Does it include officers’ own personal relationships or does it just apply to members of the public?
Chris Philp
The document talks about treating everybody in those ways. It also goes on to talk about relationships, which obviously can happen inside and outside policing. It also talks about—I think this was the topic of amendment 135—ensuring that there are appropriate boundaries between police officers’ professional roles and personal relationships. It particularly talks about recognising
“the need to manage…relationships with the public because of the existence of a power imbalance”,
respecting “personal and professional boundaries” and maintaining
“the integrity and rights of those we come into contact with”.
Critically, it also states:
“do not use our professional position to pursue a sexual or improper emotional relationship with a member of the public”.
I think that speaks directly to the concerns raised in paragraph (a) in amendment 135, which expressly references the same thing. That is in the document that I just mentioned.
What the whole group of amendments tabled by the shadow Minister and the hon. Member for Birmingham, Yardley calls for is covered in these documents, which have been published by the College of Policing under section 39A of the Police Act 1996. If there are gaps in them, obviously they can be updated.
Someone—I think it was the hon. Member for Birmingham, Yardley—asked, “Why not set it all out in the Bill?”. The documents are quite long—29 pages, 10 pages and something like 30 pages: there is a total of 60 or 70 pages of guidance. It is rather difficult to put that much detail into the Bill. What the Bill is doing is compelling—not asking—the College of Policing to publish these documents. The detail is obviously in the documents, and I hope that the Committee can see, from the examples that I have given having rifled through the documents, that they address the topics that one would want to see addressed.
Jess Phillips
I thank the Minister for giving way again; it is good to have this debate. I must say, as an expert in this field, that what the document says is not good enough. That brings me to amendment 136—which specialist agencies who work with victims of domestic violence did the College work with to write this? It is not good enough, I am afraid to say. I can take that up with the College of Policing, but that is also not the mechanism.
Chris Philp
There is obviously a duty to consult various bodies in preparing the code of practice. I know that the College of Policing and its chief executive, Chief Constable Andy Marsh, engages extensively with a number of people. The hon. Lady lists in amendment 136 the Domestic Abuse Commissioner, the Commissioner for Victims and Witnesses, and the Independent Anti-Slavery Commissioner. I do not know whether the College of Policing expressly consulted those people in preparing the codes of practice, but I can undertake to ask its chief executive and find out.
I appreciate that the hon. Lady has probably not had a chance to read the documents, because two of them got published only earlier this week. Once she has had a chance to look at them, if, based on her experience and work in this area, which I know is extensive and long-standing, she thinks that some things have not been properly addressed, I am happy to commit to raising them directly with the College and ask that they be addressed in the next iteration of the documents. I am definitely happy to do that whenever the hon. Lady is ready; if she can set down what she thinks is missing, I will raise those issues.
I am told that the three organisations that I just read out, which appear in the hon. Lady’s amendment, actually were consulted routinely on the documents. However, as I said, if, once she has had the chance to read the documents, she finds in them things that are not properly constructed, I will definitely raise them with the chief executive of the College on her behalf. She can obviously do so directly, but I will certainly do so reflecting her advice as well.
I essentially agree with the spirit of all the amendments. However, because of the detail published relatively recently, on 6 December and in just the last few days, my view is that what is being asked for has been essentially incorporated into the documents. As I said to the hon. Member for Birmingham, Yardley, if she especially or any members of the Committee feel that things are missing, I will absolutely take them up with the chief executive, should a view be formed that changes would be useful and appropriate.
Alex Norris
This has been a really important debate, and I am grateful for the case made by my hon. Friend the Member for Birmingham, Yardley. The Minister’s very full answer was much appreciated by us all. Interestingly, my hon. Friend and I focused on two different issues, but they have the same principle at root: the public must be able to expect that public organisations—in this case, the police—are candid, transparent and making their best efforts to do the best job in all circumstances. That should be obvious, but we know that too often that has not been the case, and Hillsborough brought that into sharp relief. Alongside that, in the cases mentioned by my hon. Friend there is a more numerous although less high-profile drumbeat of mundane failure, which has been almost baked into the system. Those will never be the subject of a high-level inquiry; instead, there are people dying in doorways, unaccounted for, unknown and unseen. We should believe that we can do better than that.
I am grateful for what the Minister introduced in relation to the work of the College. I was going to say this in the next debate when we talk about vetting, but we have full confidence in and we believe in Chief Constable Andy Marsh. He is excellent; he has engaged with us on the Opposition Benches and he is always very good, so no point that I make is against either him or the College. The question, for us, is about the degree to which we are comfortable with subcontracting important judgments about how one of the most crucial public services operates to other organisations that we cannot scrutinise in the same way as the Minister and the Home Office. There are times when that is very much the right thing to do, and when we cannot and should not seek to operate those things remotely from here; we would not have the time and it would not be appropriate.
Chris Philp
We both have confidence in the College and Chief Constable Andy Marsh—in fact, now is a good time to thank him for the work that he and his colleagues at the College have done. On the subcontracting of important things to the College of Policing, I should say that the statutory code must be approved by the Home Secretary prior to its coming into force. That gives not parliamentary approval, but at least some level of democratic oversight on what goes into it.
Alex Norris
If I am honest, that level of oversight might not give much comfort to us in the Opposition, but never- theless that at least gives the code a statutory footing, which is in itself very much valued. We must make the judgment of when we are happy for others to make those decisions and when we believe that it is our responsibility to set a tone. That remains the case, particularly around candour; I will come on to amendment 149 in a second.
I turn to the amendments tabled by my hon. Friend the Member for Birmingham, Yardley. One of the most important things we can say—and I hope that the Minister will say this at some point; I do not think that he has said it yet and it is really important for the amendment—is that we believe that off-duty conduct is relevant to establishing the character and suitability of officers. My hon. Friend’s amendment mentions a couple of cases where standards that we would routinely expect to be met have not been, whether that is in a domestic abuse or sexual violence situation or related to the point around spy cops. We ought to send a stronger signal on that.
I confess that I have not yet had the chance to see the documents that have been published in recent days. I hope that they pass the test that the Government’s own documents often fail around gender. As my hon. Friend the Member for Birmingham, Yardley said, the Government managed a whole Domestic Abuse Act without mentioning women. We cannot lose sight of what is happening here—it is not exclusively male perpetrators and women victims, but that is largely the case. This is a gendered crime, and we ought to treat our regulation in that way.
I heard the Minister’s point about amendment 136. While we have to admire the College of Policing’s diligence in publishing the code prior to its becoming a statutory requirement, if the consultation has not happened yet there will be a period of time when that work could take place, prior to the Secretary of State signing it off, and for it to be understood that the commissioners mentioned in the amendment would be routinely consulted during the development of the process. The insight that those individuals have on those cases, as we saw in the evidence sessions, is hugely valuable.
I turn to new clause 48. As my hon. Friend said, the public should be able to expect that relevant intelligence is always considered; it is not. The Gaia Pope-Sutherland case is absolutely devastating. If the Bill is not the place for this detail, we need to hear a strong signal that it is what we expect of policing—what the public expect and should be able to expect.
On amendment 63, I think the Minister is right. I am happy to withdraw it as it is covered by the document he mentioned. I cannot quite share his view on amendment 149. We should not misconstrue that what is in the Bill now means that police officers are obliged to act with a duty of candour. What is in the Bill is that chief officers have a duty; what is in the College of Policing’s guidance, at paragraph 4.5, is that that duty to act with openness and—I forget the other word—is then pushed to other officers.
Alex Norris
Openness and candour. But that does not have a statutory underpinning. There is carrot but no stick—that is the point I am trying to make. The code covers chief officers. It will not really cover their staff—not so that we can have confidence that the job has been done with regard to the duty of candour. There is still a gap.
As I have said, I have doubts about whether the Bill is the right vehicle for the change that the Opposition seek on duty of candour, so I will not press that point to a Division yet. But the issue will come back at later stages and in other legislation as well. We certainly do not think that the job has been finished.
Jess Phillips
On amendment 135, the Minister offered to sit down and talk to me about what needs to be in the document. On reflection, I will not press the amendment, in the expectation that that will happen before the Bill goes to the other place. We shall see how we feel about the matter then.
Chris Philp
On a point of order, Dame Angela. Could I ask the hon. Member for Birmingham, Yardley, through you, to make contact with me with her thoughts when she has looked at the document? I would be grateful.
Criminal Justice Bill (Fifteenth sitting) Debate
Full Debate: Read Full DebateDepartment: Home Office
Chris Philp
Main Page: Chris Philp (Conservative - Croydon South)Department Debates - View all Chris Philp's debates with the Home Office
Criminal Justice Bill (Fifteenth sitting)
Chris Philp ExcerptsTuesday 30th January 2024
(10 months ago)
Public Bill CommitteesRead Full debate Criminal Justice Bill 2023-24 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 30 January 2024 - (30 Jan 2024)
The Minister for Crime, Policing and Fire (Chris Philp)
I beg to move, That the clause be read a Second time.
It is a pleasure to serve under your chairmanship, Ms Latham, as we commence our final day of line-by-line consideration of the Bill. [Interruption.] I see that colleagues are very enthusiastic about undertaking the last lap.
My hon. Friend the Member for Newbury, who would ordinarily have moved this Government new clause, has just arrived. With your permission, Ms Latham, might I hand over to her so that she can speak to it?
The Chair
Yes, but let me correct the Minister: it is Mrs Latham, not Ms Latham. Having been married nearly 56 years, I do not think “Ms” is right.
The Parliamentary Under-Secretary of State for Justice (Laura Farris)
I apologise to the Committee for being late—I had left something behind.
The new clause amends a number of existing criminal offences in the Sexual Offences Act 2003. Currently, it is an offence for a person intentionally to engage in sexual activity where, for the purposes of obtaining sexual gratification, they do so when a child is present and they know or believe that the child is aware that they are engaging in the sexual activity. There are similar offences that target such behaviour where the victim is an adult with a mental disorder.
We have listened carefully to those on the frontline, who have identified a small category of cases involving this type of behaviour where there was insufficient evidence that the perpetrator knew, believed or intended that the child, or the person with a mental disorder, was aware of the sexual activity, most typically because the child was asleep. The new clause will expand the criminal law so that successful prosecution does not depend on the alleged victim’s awareness of the sexual act or the defendant’s intent. It will capture cases where, for example, a defendant masturbates over a sleeping child for the purpose of sexual gratification and subsequently seeks to argue that they did not believe the child was aware of the activity and did not even intend that the child should be aware of the activity. The new clause therefore alters the mental elements of the offences.
I thank the National Police Chiefs’ Council, a number of individual police forces and the Crown Prosecution Service for bringing to the Government’s attention these troubling cases, which have informed our response and led us to conclude that we should amend the existing offences to protect vulnerable adults and children. The amended offences will retain the need for a link between the child’s presence or observation and the perpetrator’s sexual gratification. That requirement is critical because of the risk of over-criminalising those who engage in sexual activity with no malicious intent where a child may be present, such as parents sharing a bedroom.
We want to ensure that these behaviours are prosecuted, not just to bring offenders to justice but, importantly, to enable the management of offenders and to prevent further escalation where there is the potential for a more serious sexual offence against children or vulnerable adults.
Jess Phillips
I support the shadow Minister’s every word and point out, as he has done, the level of cross-party support for a change to this particular piece of law. In some way, I hope to outline some of the reasons why not many cases of cuckooing have been brought forward. I saw a case of a young woman, who was exploited from childhood into adulthood through the care system—and then in her own private property; men would come around to rape, sexually assault and sell her in her own property. People might, perfectly reasonably, say, “Why wouldn’t you call the police?” Well, there were kilos of cocaine and heroin left in her property, and she was absolutely convinced—nothing that I could convince her otherwise—that she would be criminalised if she called the police to her home. In other cases, there might be a cannabis farm in the ceiling, for example, and people are convinced that they will be criminalised.
Without doubt, there are more people in our prisons who have been victims of human trafficking than there are human traffickers. Certainly, for those charged under any of the crimes in the Modern Slavery Act, there will be many more people in our prisons who should actually have been saved by the provisions in that Act that say that criminalisation should not occur—yet it does, every single day; we continue to criminalise people in that manner, even when they are the victim of the crime. The vulnerable people in these cases know that, so they do not report the crimes.
We have had lots of discussions about finding weapons that are not just a kitchen knife in people’s houses. If authorities were to go into the home of a young woman who had been in the care system and had been difficult at times, and they found lots of drugs and weapons, do we honestly think that she would not be convicted of that crime? If we do, we are not living in reality at all. It is vital to have an understanding of what happens in these cuckooing cases. We need to recognise it to try to overcome some of the criminalisation, and the threat of criminalisation, that already exists.
I have met girls who have had photographs taken of them holding guns that have been used in fatal injuries, as a threat to them that they will be put up for that crime. When somebody has been groomed that well, they will believe it, no matter what I say—even if I say, “I will stand next to you in the courtroom and I will make sure this doesn’t happen.” It does happen. Recognising in law that this crime is specifically about taking over a home, and leaving incriminating evidence around the place, is really important in changing that.
Chris Philp
It is, as always, a pleasure to serve under your chairmanship, Mrs Latham. I thank the hon. Member for Stockton North for the thoughtful and considered way in which he moved the new clause. He and the hon. Member for Birmingham, Yardley both expressed sentiments about protecting vulnerable individuals from the practice known as cuckooing, and I will start by saying that the Government are just as concerned as they are. We are united in our shared desire to protect vulnerable people from the exploitation that they both described, so we are unanimous in our objectives in this area.
As the hon. Member for Stockton North said, most commonly the practice of cuckooing is associated with drug dealing, but it can be associated with other forms of criminality. I will raise a couple of points about his new clause. First, as it is currently drafted, there would be no requirement for there to be any coercion. For the proposed new offence to be made out, it would simply be sufficient for somebody—the perpetrator or alleged perpetrator—to occupy a residential building lawfully occupied by another, and then to commit a criminal offence.
The new offence of cuckooing would be made out even if there was no coercion and, in fact, even if it was done consensually. If the person who owned the house gave their free consent, without coercion, to the alleged perpetrator, the new offence proposed by the new clause would be committed. As I say, there is no requirement in the drafting for any form of coercion or even non-consent, whether or not there was coercion or exploitation. The way it is drafted goes beyond what I would expect in a cuckooing offence, where I imagine there would be some form of coercion, and non-consent by the person who owns the property.
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”—