Police, Crime, Sentencing and Courts Bill (Fourth sitting)

Chris Philp Excerpts

Committee stage
Thursday 20th May 2021 Public Bill Committees

[Alex Cunningham]

Q Thank you. Hazel, your teams around the country do a tremendous job in the most difficult of circumstances. I hope you will pass on our thanks to them for the work they do. I would like to ask a general question. What do they consider to be the greatest challenges facing youth offending teams as they are trying to deliver adequate services for our young people?

Hazel Williamson: What YOT managers say to me is that the biggest challenge is around funding. Youth offending teams have absolutely reduced first-time entrants; we have reduced children and young people going into custody. We are also reducing the reoffending rates for many of our children and young people. The assumption, therefore, is that youth offending teams do not need to be funded as much as they were previously.

However, youth offending team managers have been saying for some time that just because the numbers have reduced does not mean that we are not working with a complex group of children and young people. For many youth offending teams, the numbers they are working with have not reduced; it is just that the children are in a different space and place. For example, we might not be working with as many children on statutory orders, but we will be offering some kind of prevention and diversion to keep them out of the criminal justice system.

It is not always the case that because first-time entrants are reducing and the numbers of children involved in the criminal justice system are reducing, youth offending teams are not doing the same amount of work they have always done. Funding is really an issue, as is understanding the context and the numbers of children that YOTs are trying to work with across the country.

[The Parliamentary Under-Secretary of State for the Home Department (Chris Philp)]

Q Thank you, Hazel, for all the work you and your colleagues do across the country; I know that it is appreciated across the House. I have two brief questions. First, you mentioned the question of sentencing of people who were under 18 at the age of the offence, but over 18 at the point of sentence. You also made reference to maturity, as did the shadow Minister. Would you accept that, even if someone is over 18, the pre-sentence report can and does take into account maturity and the judge can reflect that in passing sentence?

Hazel Williamson: Absolutely, and we know that, but children and young people who commit those offences as children should still be sentenced as children. We can use the strength in our youth offending teams, because we have seconded probation staff working with us, so we can have quite a balanced report for those children and young people, and support them with the transition from youth offending teams into probation. Age and maturity should absolutely be considered across the whole system, but our children and young people who commit offences when under 18 should be sentenced as children.

[Chris Philp]

Q But should the court not sentence the person before the court, with regard to their maturity, condition and everything else at the point of sentence, rather than at a hypothetical time in the past?

Hazel Williamson: What we know about sentencing is that people will make significant changes between the time they committed the offence and where they are at any given point in time. We have been working with children who have been awaiting sentence in the Crown court, and who are now past their 18th birthdays. They will have made significant changes up to the point where they are sentenced, and they were still children at the time they committed that offence.

[Chris Philp]

Q If your point is that they can change, surely the pre-sentence report delivered at the point of sentence will reflect that change, and that would be the appropriate approach to take. We will no doubt debate that extensively during line-by-line consideration.

Secondly, some new youth sentencing options, and sentencing options more widely, are made available in the Bill. Can you give us some commentary on how youth offending services and courts can make a success of those new sentencing options?

Hazel Williamson: I assume you are referring to the intensive supervision and surveillance, intensive fostering, and GPS monitoring?

[Chris Philp]

Yes, for example.

Hazel Williamson: Okay. In terms of ISS, I have already indicated that its extension will require some resourcing. Intensive supervision and surveillance is already in place across the country for youth offending teams, and it is utilised to prevent children from receiving custodial sentences. I think that is already in place. There are concerns that the pilot of an ISS extended to 12 months did not give the results it needed to.

In terms of the intensive foresting arrangements, again, I go back to the fact that it is really resource-intensive and expensive, and it will require very close join-up with our local authority colleagues, who will be required to provide the foster carers to support it. On GPS—some trials have been taking place for GPS monitoring for our children and young people—there is some thought that it will certainly prevent some of our children and young people from being involved in those more violent crimes, and will reduce the risk of them being exploited. That is not the case from what we are seeing with children and young people who are subject to GPS monitoring and tagging. We also know that those children really struggle with the equipment, in terms of practicalities and charging the equipment. We know that GPS does not work for a lot of our children and young people in areas where it has been piloted.

As youth offending teams, we want to look for suitable and robust alternatives to custody for our children and young people. There is no doubt that it has to be done in partnership, but it will require some significant resourcing.

[Chris Philp]

Okay, that is very helpful. Thank you very much.

[The Chair]

Hazel, thank you for that. When people ask—[Interruption.] Bloody hell, I am wrestling with my wretched mask—my mother-in-law made it and I wear it in honour and tribute to her. Hazel, when people ask me, “How should I prepare to give evidence to a Committee?”—be it a Select Committee or a Bill Committee like this—I shall say, “Watch Hazel Williamson.” That was crisp, concise and informative. It really was a masterclass, and it is appreciated by us all at the start of a very long afternoon. We are trying to find our next witness, who is being asked to appear 25 minutes early. If we cannot find our next witness, colleagues may go and have a cup of tea and stretch their legs. Thank you, Hazel.

Hazel Williamson: Thank you.

--- Later in debate ---

[Alex Cunningham]

That is great. Thank you very much.

[Chris Philp]

Q Do you have any feedback from your members about how the use of remote hearing technology has worked during the pandemic? For example, I think we are now holding 20,000 remote hearings a week.

Ellie Cumbo: As I said earlier, it has been a story of great success in many ways, enhancing the convenience of all parties, including solicitors, particularly in relation to those types of hearings—administrative hearings— where it is only legal professionals talking to each other. Why on earth should you not use a remote hearing for that?

But it is not just an innate conservativism that prompts those concerns about whether it is working well for all types of hearings and all types of people appearing in those hearings. This is a significant change that is difficult to analyse—in fact, I believe the MOJ itself is still in the process of evaluating its success. We are keen participants in those discussions and are keen that our views are heard. Our views are that where such hearings enhance the interests of justice, we are in favour of them and, where they do not, we are not.

[Chris Philp]

Q Yes, that seems very reasonable. The question of whether remote hearings are appropriate is ultimately a matter for the judge presiding over any given hearing. Do you share my confidence that the judiciary can be relied on to make the right decisions and permit remote hearings where appropriate and not where not appropriate?

Ellie Cumbo: Obviously we and our members have implicit confidence in the judiciary. We are great believers in the importance of our independent and expert judiciary. That is not to suggest that it is not possible to make their lives a little bit easier than the current provisions do.

There is guidance, as I referred to earlier, about where remote hearings are and are not appropriate, and it differs slightly from jurisdiction to jurisdiction. That is not a comment on the judiciary but it is arguably a reason for further attention to be paid to how clear those messages are and how possible it is, with the best will in the world, for the judiciary to interpret them in a way that promotes the interests of justice.

[Chris Philp]

Thank you.

[Sarah Champion]

Q Ellie, I asked you earlier whether you had any concerns about the Bill putting additional pressure on the judicial system. Does the Law Society have any other concerns about the Bill that you have not already mentioned?

Ellie Cumbo: No, I think I have had the opportunity to cover most of the things that the Law Society would want to. Perhaps I should have added into the conversation about pre-charge bail that we take the same view in relation to the removal of the presumption against bail: we understand the aim, but do not think this is the best way of achieving it. We would like to retain that presumption on the basis that it is still perfectly possible to use bail, but it can only be used where it is appropriate and proportionate to do so. We think that is an important safeguard.

--- Later in debate ---

[Sarah Jones]

Thank you.

[Chris Philp]

Q Jonathan, I will come to you first. A few minutes ago you were talking about the measures whereby a prisoner who becomes dangerous—or who might have become dangerous—can serve more of their sentence in prison, and you drew comparisons with powers exercised by previous Home Secretaries to set tariffs for live sentences. Is it right that you were making that comparison?

Dr Bild: Yes.

[Chris Philp]

Q You were. To be clear, do you agree that in fact the powers in the Bill are simply for the Home Secretary to make a referral to the Parole Board and that the assessment of dangerousness and decisions about release are made by the Parole Board, not the Home Secretary?

Dr Bild: Yes, I agree with that. I think the concern is the ability of a Secretary of State to have the power to intervene in the automatic release of a prisoner. That is the question. I agree that the ultimate decision will be made by the Parole Board, which is an independent tribunal, but there should probably be a bit more of a firewall between the Secretary of State and an individual prisoner’s sentence.

[Chris Philp]

Q But you accept that the decision is made by the independent Parole Board, not the Home Secretary.

Dr Bild: I do not know if it is going to be made by the Home Secretary or the Justice Secretary. Yes, I agree on the final decision for release, but the halting of the automatic release will presumably be done by the Secretary of State.

[Chris Philp]

Q The referral is made by the Secretary of State, but the decision is made by the Parole Board—that is the critical point. Will you confirm that your understanding is the same as mine: that the release will be delayed only if the Parole Board make an assessment of dangerousness? So, were we not to bring forward this measure, it would open up the possibility that dangerous prisoners might be released into the community before the end of their sentence, by which I mean the total sentence.

Dr Bild: I agree with you, but the issue you have here is that somebody who is dangerous could be released into the community under licence. If that person serves their entire sentence in custody, that same person, who may be even more dangerous by the end of their full sentence, will be released into the community with no licence conditions, no supervision and no support. So yes, I agree with you that it is safer for the extra time that someone is kept in custody, but it is less safe once they are released.

[Chris Philp]

Q Although of course it is possible to undertake rehabilitative activities in prison. Is the judgment that we are discussing here not one that can be exercised by the Parole Board? The Parole Board might choose to have a prisoner serve the totality of their sentence in prison, but equally the Parole Board might choose to allow a release that is after the automatic release point but before the end of the sentence, still allowing the period on licence. Whether there is a period on licence would be a matter over which the Parole Board would have discretion by virtue of the time at which it decided release was appropriate.

Dr Bild: The Parole Board only has discretion in the sense that it has to follow its own rules. Therefore, it can release someone only when it is satisfied that they do not pose a risk to the public. The Parole Board would not be able to decide that now is a nice time to release someone and have a little bit of licence period; I assume that it would have to follow its rules. If it was not fully satisfied that the person is safe to release, I imagine that the Parole Board’s hands would be tied by its own rules.

[Chris Philp]

Q But of course, by exercising that power it would be preventing the release of a dangerous prisoner. I think the shadow Minister quoted—he may have mentioned it again today, and he certainly mentioned it previously—some commentary by third parties that later release is somehow inherently unjust or represents a deviation from the sentence handed down by the court. However, is it not the case that the sentence handed down by the court is the total sentence, and that the release point is essentially the administration of that sentence? Following the passage of the Terrorist Offenders (Restriction of Early Release) Act 2020, the High Court held last year that moving the release point was lawful, because it fell within the envelope of the original sentence. Would you agree with the High Court’s analysis of that situation—that it is lawful and consistent with human rights and common law?

Dr Bild: I would agree that that was the case last year in relation to the terrorism legislation, as I said earlier. I am not saying that it is not lawful, but I think that a different issue is engaged when a Secretary of State is making a decision on an individual case and not a blanket, “You have committed a certain offence, therefore this is your release arrangement.” That is the issue.

[Chris Philp]

Q Thank you. For clarity, the Secretary of State makes a referral, but the decision is made by the Parole Board. I want to be absolutely clear on that point.

Let me move on. I want to ask a question to all the panellists, so perhaps the answers could be relatively brief, given that I am sure we are under time pressure. We had some debate some time ago in this session about the appropriateness of imposing minimum sentences, whereby Parliament specifies in statute that if someone is convicted of a particular offence, there is a minimum period of time that they must be sentenced to in prison, regardless of the facts of the individual case, and regardless of any discretion that the judge may wish to exercise. Can each panel member give the Committee their views on the appropriateness, generally, of statutory minimum sentences?

[The Chair]

Briefly, please.

[Chris Philp]

We have got three minutes.

Dr Janes: The problem with mandatory minimum sentences is that they do not allow the judge to take into account the specific characteristics, needs and circumstances of the person before them. We have already spoken about why those things are so important. [Interruption.]

[The Chair]

Do not all speak at once, but one of you please speak.

Dr Paradine: For us, it is the same as for Laura: minimum sentences, the lack of evidence of a deterrent effect, and the inflation of sentences across the board. We really do not believe that minimum sentences are the way forward, and there is so much evidence that that is not the way to go. It is misleading, and it will not do anything for public confidence. What will do so is sentences that actually work in preventing and reducing offending.

[Chris Philp]

Q Would you also apply that analysis if the offence was something of the utmost gravity, such as rape?

Dr Paradine: Yes, because judges should have the discretion to apply to the case the sentence that is required. That is why we have judges, and that is why our system is as it is. There is no need for constant interference in the way that is proposed in the Bill.

Nina Champion: I agree with both Kate and Laura about the importance of looking at the individual circumstances of the case. I would also like to add that, in terms of racial disparity, we know that black people are more likely than white people to be sent to prison at Crown court. We know that black women are more likely to be given a custodial sentence. We know that these disparities exist. Even taking into account other factors such as the lack of an early guilty plea, we know that black people are disproportionately represented in terms of sentencing and being sent to custody, so this would disproportionately impact those groups.

[Chris Philp]

Q Again, would you apply that analysis even in cases of exceptional seriousness, such as rape?

Nina Champion: Across the board.

[The Chair]

Dr Bild, last but not least.

Dr Bild: I agree with the other panellists. If there was any evidence whatsoever that mandatory sentences deterred people, there could be some justification for them, but in the complete absence of any such evidence, I see no reason to have mandatory minimum sentences. To pre-empt the question, that includes every single offence.

--- Later in debate ---

[Victoria Atkins]

Q Forgive me—sorry. It is specifically in clause 59; that is the public nuisance clause, as recommended by the Law Commission. That is why I used that wording. It is in clause 59, not clause 54.

Gracie Bradley: I was not saying that it was in clause 59; I was picking up on another clause in the Bill, which contains language that is vague and concerning. But I can leave it there, if you want to stick with clause 59; I do not have anything to add on that.

[Chris Philp]

Q I will be very brief. It is a question for Gracie. I want to pick up on a point that you made, Gracie, in relation to unauthorised encampments and article 8. You suggested that the legislation might infringe article 8. However, paragraph 2 of article 8 says that interference by a public authority is “justified”—because article 8 is a qualified right, as you know—in the interests of, among other things,

“public safety…the economic well being…the prevention of disorder or crime…or for the protection of the rights and freedoms of others.”

Of course, unauthorised encampments of this kind do infringe

“the rights and freedoms of others”.

Thereby, I would suggest, article 8 is not engaged. Moreover, the right to enjoy one’s property is made very clear, is it not, in article 1 of protocol 1, which says that people are

“entitled to the peaceful enjoyment of…possessions.”

So, given what I have just said about paragraph 2 of article 8, and about article 1 of protocol 1, would you care to reconsider your article 8 analysis in relation to this clause?

Gracie Bradley: No. I think that what I said was that under article 8 it would likely be an unlawful interference, and I would disagree with your analysis that if it is proportionate, article 8 is not engaged. If the right can still be engaged, and a limitation may or may not be proportionate—

[Chris Philp]

Q Let me rephrase the question: would you agree that article 8 is not infringed?

Gracie Bradley: The point is that there is a balance to be struck; that is what happens with qualified rights. And I think the point is that the potential threshold at which these measures may be applied is so low, and the impact on Gypsy, Roma and Traveller people is potentially so distinct, that it would be disproportionate for the measure to be applied to them. What we are talking about, especially when we are talking about the potential seizure of vehicles in the context of nomadic Gypsy and Roma Traveller communities, is people potentially losing their homes entirely. If we are talking about people potentially facing a custodial sentence, that is a really significant interference with their article 8 rights, and it may have further implications—for example, what happens to their children if their caregivers are not available to them? Yes, I recognise that there may be interference in the life of the local community, but the point is that the threshold at which these measures may be invoked, and the impact on people who live in their homes and who have a nomadic way of life, is so significant that the way the Bill is drafted is disproportionate. In Liberty’s view, it also invites discrimination.

I recognise that the Committee is trying to get at the point about the wider community. It goes back to what Colin spoke about at the beginning and what numerous police forces have mentioned—that there is a lack of lawful stopping places, and that there is inadequate provision. I do not think we square this circle by getting into whose rights are more infringed on which side. The point is that what we need to get to is working constructively together to ensure that communities are provided for, and to make sure that there are enough stopping places and pitches. That is the way that we resolve this.

[Chris Philp]

Q Do you place any weight at all on people’s protocol 1, article 1 rights to have “peaceful enjoyment” of their possessions? Do you place any weight on that at all?

Gracie Bradley: Of course—Liberty is a human rights organisation. As I am aiming to demonstrate, I am not dismissing that this is a qualified right, and that there are other things that hang in the balance on the other side. I have said there is a balance to be struck but, at the same time, the way the Bill is drafted means that it poses a disproportionate and really significant threat to the rights of Gypsy and Roma Traveller communities. They are a persecuted and minoritised community, and I do not think it is defensible for them to be targeted in this way, especially when there is a non-punitive solution, which is to ensure that there are adequate stopping places.

[Chris Philp]

It is not targeting that community expressly; it is targeting people who engage in a particular kind of behaviour, regardless of their identity—but I think I have taken this far enough.

[The Chair]

I thank the witnesses on behalf of the Committee. Thank you for coming early and staying longer than your allotted 45 minutes, and I thank you for your evidence.

That brings us to the end of today’s sittings. The Committee will meet again at 9.25 am on Tuesday in Committee Room 14, in order to commence line-by-line consideration of the Bill.

Ordered, That further consideration be now adjourned. —(Tom Pursglove.)