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

Chris Philp Excerpts

Committee stage
Thursday 27th May 2021 Public Bill Committees

I would not want anyone to think that this framework is the Government’s only answer to the far wider problem of conviction and charge rates in rape cases, or that this is the work to ensure that victims feel supported in their journey through the criminal justice system—it is not. It is but one step in our work on that. Colleagues will know that only this week there was an urgent question directed towards my hon. Friend for one of the Hampshire seats—I cannot remember whether it is north, south, east or west.

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

North West.

[Victoria Atkins]

Thank you. The Minister for Crime and Policing, my hon. Friend Member for North West Hampshire (Kit Malthouse) answered the urgent question on the timing of the rape review. Colleagues will know that for the last two years, the Government have commissioned intensive research into each stage of the process within the criminal justice system of a rape case or a sexual violence investigation, from the moment of reporting through to the moment when the case finishes, whether by way of a verdict or if a trial does not go ahead for any number of reasons. We had very much hoped to publish that review by the end of last year. However, we were very understanding of the fact that the Victims’ Commissioner and women’s charities wanted to make representations, in particular looking at the shadow report by EVAW—End Violence Against Women. We were mindful that there was a super-complaint under way as well. Therefore, we have paused publication in order to take into account some of those factors.

The Minister for Crime and Policing informed the House this week that we plan to publish the review after the Whitsun recess. It will show the Government’s intentions in relation to this particular category of cases, sexual violence cases, and will of course sit alongside this Bill, but will go much further than the Bill. On some of the situations, scenarios and experiences that were described today and last week in evidence, I just urge caution until the rape review is published, because there may be answers in that document.

In terms of the legal framework, I think it is really important that we have this in the Bill and that the rights of victims and of suspects and defendants are set out and clarified and that we introduce consistency where that has been alleged in the past to be missing.

I note just as an example that one of the other ways in which we are really trying to help victims of sexual violence is through support for independent sexual violence advisers. We already have ISVAs working with victims across the country. This year, we have been able to announce the creation of 700 new posts, with some £27 million of funding. I give that just as an example. This is an important part of our work, but it is not the only piece of work that we are doing to address some of these very genuine concerns.

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[Sarah Champion]

I hear everything the Minister is saying and it is very plausible, but I want to challenge her assertions on necessary, proportionate and clear lines of inquiry, based on the answer I received to a written question to the Home Office on 11 November. I asked about the process of extracting mobile phones. The Under-Secretary of State for the Home Department, the hon. Member for Croydon South replied:

“Immigration Enforcement search all migrants”—

at this point, “all migrants”, so we do not know yet whether they are an asylum seeker, being trafficked or are here for nefarious purposes—

“upon arrival at the Tug Haven at Dover. In the event that a mobile phone is discovered it will be seized as part of an investigation into the organised crime group involved in the facilitation.”

Again, we do not know if they are a criminal or a victim at this point, but the phone will be seized regardless.

“The migrant will be informed verbally that the phone will be kept for evidential purpose for three to six months. They are provided with a receipt and contact details. Attempts will be made to communicate this in their first language, although this can be challenging due to external factors.”

So people arrive here, immediately their phone is taken away from them and they might not even know why. It is great that within “three to six months”, they are meant to have that response—

[Chris Philp]

Because they are here illegally.

[Sarah Champion]

Sorry, Minister? I do not think that the reality on the ground—the reality that the Home Office acknowledges—backs up what the other Minister is saying about reasonable, proportionate and lines of inquiry, because it is happening to every migrant coming into this country.

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

Chris Philp Excerpts

Committee stage
Thursday 27th May 2021 Public Bill Committees

[The Chair]

No need for apologies, Mr Cunningham. It is important that the Bill is properly scrutinised and that the parliamentary procedure is complied with. I call Minister Philp.

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

It is a great pleasure, once again, to serve under your chairmanship, Mr McCabe. I join the hon. Member for Stockton North in paying tribute to the hon. Member for Rotherham for the work that she has been doing in this area for so many years. I am sure the entire Committee, and anyone listening, will have been deeply moved by her speech a few minutes ago, in which she described the most appalling abuse that I know all of us, as a House, can come together to combat and fight. I know she has been tirelessly working in this area for many years, and the whole House is grateful to her for the work and leadership she has shown.

The provisions in the Bill that we are discussing form only a small part of what the Government are doing to combat these terrible crimes, and I pay particular tribute to the Minister for Safeguarding, my hon. Friend the Member for Louth and Horncastle, who leads the Government’s work. Before talking about the provisions in the Bill, I want to draw attention to some non-legislative work that is going on, particularly the work that is being done internationally, including through the “Tackling Child Sexual Abuse Strategy”, which I think was published earlier this year. The hon. Member for Rotherham talked a few moments ago about a separate piece of legislation—the forthcoming online safety Bill, which aims to tackle many of the issues that we have been discussing. We are of course also working internationally with other states and with international organisations and charities, such as the International Justice Alliance and the International Watch Foundation, to make sure that we protect children overseas. Legislation is important, but so is action. The Minister for Safeguarding and others in Government are committed to taking that action, and we welcome the support from Members of different parties in doing that.

Let me pick up some of the points that the hon. Members for Rotherham and for Stockton North raised in their comments. A question was posed by the hon. Member for Stockton North in his excellent speech: he asked whether we were content with some of the sentences being handed down to people in the United Kingdom who go online and cause a deeply traumatising offence to be committed in another country, such as the Philippines or elsewhere. The answer is no, we are not.

Clause 44 aims to address the lacuna that currently exists in this area and that we think needs to be closed. Clause 44 is a critical part of doing that.

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[Sarah Champion]

The Minister’s speech is incredibly reassuring, and I am glad that it will now be in black and white in the transcript, because it gives the comfort that we need. However, hearing everything that he is saying, is there any objection to putting the words “online” or “international” in the Bill, just for clarity and just because there is a change? The likelihood of people reading through all the guidance when they are making a decision is slender, whereas they will go to the Act and it would be there in black and white, which would give a lot of comfort.

[Chris Philp]

I thank the hon. Lady for her question. My clear understanding is that the police already prosecute for these offences. I will go away and double-check with colleagues to make sure that there is no scope for misunderstanding by law enforcement authorities: the police; the National Crime Agency; and the Crown Prosecution Service. Having investigated that question further, I will write to her with the reply to her question. The law permits it, and the law is being used. However, I will just seek that assurance that there is no misunderstanding by practitioners. My understanding, as I say, is that they are prosecuting and getting some convictions, but I will double-check her point and get back to her in writing.

I think that speaks to the issues raised in new clauses 40 and 41. In relation to new clause 39, I think that the essence of what the hon. Lady is seeking to achieve is delivered by clause 44, as it is drafted, by making the maximum penalty the maximum sentence for the underlying act that is committed. To take the most extreme and distressing example, if someone is being raped and that has been incited, facilitated or arranged online, that facilitation will now—if we pass this clause—lead to that maximum sentence applying. It will be the underlying offence that triggers the maximum sentence, which I think addresses the point that she is quite rightly making in new clause 39. I believe that clause 44 addresses that issue.

Finally, there is the question of new clause 37, which is concerned with double jeopardy. I completely accept, and I think the Government accept, that this is an incredibly difficult area, where a very difficult balance has to be struck, because on the one hand we have long-standing interests of natural justice, which say that someone can only be tried for a given offence once for reasons of fairness, natural justice and finality, but on the other hand there are the points that the hon. Lady has very powerfully made concerning these very distressing offences.

As the hon. Lady said, this issue was looked at by the Law Commission in the early 2000s and then legislated for via the 2003 Act. In fact, the Law Commission initially only recommended that the exemption to double jeopardy should apply to murder. However, when Parliament debated this question, it decided to expand the range of exemptions, which were covered in schedule 5 to the 2003 Act, to cover, in addition to homicide, other offences, as she said, such as rape, penetrative sexual offences, kidnapping and war crimes. Such offences are generally punishable by a term of life imprisonment, or in one or two cases by the exceptionally high standard determinate sentence of 30 years.

A line has to be drawn as these things are balanced, which is an extremely difficult line to draw, because there will always be offences that are just over the non- exception side of that schedule 5 line, which are very grave offences. The hon. Lady very powerfully described why those offences are so appalling, offensive and terrible. She is right—they are—but we have to try to strike a balance in deciding where that line is drawn. Clearly, offences of rape and sexual assault involving penetration are exempted—they can be tried again—but those that do not involve penetration are not in schedule 5, so the rules on double jeopardy apply.

The Bill does not change that, and there are no plans to change where the line is drawn. As the hon. Lady raised the question in such powerful terms, I will raise it with more senior colleagues in Government to test their opinion—I can make no stronger undertaking than that—to ensure that her point, which she articulated so powerfully, gets voiced. I will let her know the response. I do understand her point, but there is a balance to be struck and considerations of natural justice that need to be weighed as well.

[Sarah Champion]

I appreciate what the Minister is saying. In that discussion, will he throw in the potential of another review? In relation to this crime, things have moved on so much, not in the last 20 years, but in the last five years, so it would be good to hear his colleagues’ thoughts on that as well.

[Chris Philp]

Well, I have reached the end of my remarks—

[Maria Eagle (Garston and Halewood) (Lab)]

I have been listening carefully to the Minister’s response. Will he undertake to get back to Opposition Members and indeed the whole Committee before Report?

[Chris Philp]

I almost said that without being prompted, but, since I have now been prompted, yes, I will.

I hope that the commentary I have given on the operation of the clause addresses the many points quite rightly and properly raised by the hon. Member for Rotherham and the shadow Minister. I have undertaken further to investigate two points, and I hope that on that basis the Committee is content to see the clause stand part of the Bill.

[The Chair]

I know that members of the public get a little confused by this, so I remind them that the new clauses were debated as part of our discussion on clause 44 because that is where they sit most logically, but we will vote on them at the end of our consideration.

Question put and agreed to.

Clause 44 accordingly ordered to stand part of the Bill.

Clause 45

Positions of trust

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[Chris Philp]

I thank the shadow Minister for giving way and for sharing those figures. Does he have, or was he provided with, a breakdown of them? On the 19%—I think that was the figure he gave—of males reporting contact abuse perpetrated by someone in a position of trust, does he have a breakdown of what proportion of those offences were committed by people who either met the current definition or who meet the definition as expanded by clause 45, as opposed to people who do not meet either of those definitions? That would be interesting information if he has it to hand.

[Alex Cunningham]

Indeed it would be good information to have to hand, but I do not know the answer to the question. Perhaps we can discuss the issue in a future debate.

If data on those instances of abuse is collected, even in the Crime Survey for England and Wales, why do the Government not think that the law should recognise the activity as criminal?

--- Later in debate ---

The Committee should take a clear and comprehensive stance and expand the definition of “positions of trust” to include all adults in positions of power and authority over children, regardless of the setting and of whether they are employees or volunteers. No child in any situation is less vulnerable to potential abusers in positions of trust by virtue of the setting they are in. It is time to bring all children in all settings under the umbrella of protection the clause seeks to afford.

[Chris Philp]

I thank the hon. Member for Rotherham for introducing her amendment and the hon. Member for Stockton North for his thoughtful speech. I think we are all united in our horror and disgust at people who abuse positions of authority or trust to do the sorts of thing that we have been discussing—there is agreement on that. The debate is really about how we can best implement the solutions that we would like to see.

This is obviously a complicated and delicate area. As Parliament has legislated that the age of consent is 16, when we deviate from that by defining circumstances where the age of consent is effectively raised to 18, we need to be careful and ensure that we are doing it in a thoughtful and well-considered way. As the hon. Member for Rotherham said, the existing legislation—sections 16 to 19 of the Sexual Offences Act 2003—defines some very specific roles, such as teacher and social worker. That is the law as it has stood for the last 18 years.

The Government have listened to the campaigns of the hon. Lady, of my hon. Friend the Member for Chatham and Aylesford, and of many others, and we have decided to change the law in response to the very powerful case that has been made. However, in doing so, we have tried to be thoughtful, careful and proportionate. As Members will see from the drafting of clause 45, the Government propose to extend the current “positions of trust” legislation to cover where a person is coaching, teaching, training, supervising or instructing someone on a regular basis in either sport or religion, as then subsequently defined. To answer the shadow Minister’s question, the definition of sport in this context would certainly cover things like gymnastics, swimming and so on. Therefore, the case that he powerfully made out—the awful case of Hannah that he mentioned—would of course be covered by this legislation as drafted, because it was in the context of swimming, which is a sport. I hope that reassures the shadow Minister that that awful case would be addressed by this legislation.

[Alex Cunningham]

It does reassure me on that point, but I wanted the Minister to reassure me about the individual music teacher as well.

[Chris Philp]

I think that was the constituency case raised by the hon. Member for York Central. In that case, the victim alleged rape—she was saying that there was no consent—and in cases where there is no consent, it is obviously appropriate that it is investigated as rape and prosecution is sought for rape. The legislation we are discussing today deals with cases where there is consent. I do not know the particulars of the case—the shadow Minister said that it was not subsequently proceeded with—but that is a non-consent case. We are discussing cases where, even with consent, it is still held that an offence has been committed.

I think we are agreed about the need for reform. We have listened carefully to the cases that have been made, and have made these proposals. The shadow Minister and the hon. Member for Rotherham have raised a number of questions through their amendments and in their speeches, the first of which is, “Why shouldn’t this be much broader? Rather than specifying sports and religion, why not—as amendment 7 does—have a very broad clause that says

‘if A is regularly involved in caring for, training, supervising or being in sole charge of B’?”

That is an extremely broad set of definitions, and it is not completely clear from that very broad drafting who might or might not be included in them. The shadow Minister asked, “Why be specific? Why not be general?” The first reason for wanting to be specific rather than general—specifying these two roles, religion and sport, to start with—is so that people have certainty about which side of the line they are on. If the clause is drafted very broadly—“caring, training, supervising”—supervising is an extraordinarily broad term, so it would not be immediately obvious who is included and who is not included. One of the features of good law is that the people who might be subject to it have some pretty good degree of certainty about whether they are going to be affected or not. The Government’s concern about terms as broad as “supervising” is the question of what is covered by them. What is included, and what is excluded? There are a lot of things that could be covered by the term “supervising”.

[Sarah Champion]

As I am sure the Minister is aware, amendment 7 is a direct lift from the Sexual Offences Act 2003, so the definition that he is pulling apart now is already law. The bit that we are challenging is adding the specific job titles to the legislation, which I think is already fit for purpose.

[Chris Philp]

I understand the hon. Lady’s point. However, the point about providing some degree of certainty for someone in a particular role in this context, which is at the edge of the law—where the law is evolving—none the less has some validity.

Having said that we want to be specific rather than general for the reason just outlined, the question that then arises—which the shadow Minister and the hon. Lady have asked—is, “Why these two roles? Why sports and religion to start with?” I stress the words “start with”. The reason is twofold: first, those particular roles carry an unusual degree of influence.

Religion is a powerful force. Ministers of religion or people who lead religious congregations often wield very extreme and high levels of influence over their congregations and their followers. It therefore seems appropriate to recognise the high degree of influence that flows from that particular religious context.

In the case of sports coaches, there is clearly a degree of physical proximity. In fact, the shadow Minister, powerfully and eloquently illustrated in describing the case of Hannah—the case of the swimming coach—how it is that sports settings are so easily abused. That is why sport was selected as one of the two specific areas. It also flows from the data. In fact, the shadow Minister referred to the January 2020 report of the all-party parliamentary group on safeguarding in faith settings, chaired by the hon. Member for Rotherham. It analysed the 653 complaints mentioned by the shadow Minister and, in 495 of those, the type of role that the person was discharging was identified. The figures I have are slightly different from the shadow Minister’s—they are broadly similar, though—and the top two categories were sport, at 31%, and faith, at 14%. Therefore, the two roles here are the two top roles revealed by that survey. Of course, there were other roles with smaller percentages.

[Sarah Champion]

The frustration of wearing a mask is that the Minister cannot see that I am smiling. He is quoting back all the arguments I have been making for the last five years—I am grateful that they have sunk in. He is right that we went for the most obvious and biggest offenders, but that is now. As I said in my speech, I am concerned that in five years it may be counsellors, whom we have not mentioned today but have a huge influence over the people they support, or an online form that turns online grooming into real abuse. I completely agree with him, but this measure needs to be future-proofed so that we do not keep having the same arguments as the professions and influences change.

[Chris Philp]

I pay tribute again to the work done by the hon. Member in this area over many years and the work done by her all-party parliamentary group. I am glad that we agree on the starting point, because she has called for it and the data of her all-party parliamentary group points to it as well. The question is how it is best future-proofed and whether one tries to do so with the general provisions in amendment 7, which would run the risk of giving us a lack of clarity and potentially inadvertently criminalising some situations that hon. Members may not feel appropriate, or with the other approach of starting with these two specifics—I think we agree they are the right starting point, because the evidence points there—and adding further positions as the evidence base develops. That is what proposed new section 22A(4) of the 2003 Act will do: it will give the Secretary of State power to add other specific roles as that evidence base develops.

[Alex Cunningham]

rose—

[Chris Philp]

I will say a word on that because the shadow Minister asked about it. But, before I do, I give way to him.

[Alex Cunningham]

There is considerable evidence to cover some of the other categories of people in a position of trust. The Minister said that we may have a different interpretation of some of the statistics, but, even if I agree with his numbers, the Bill’s provisions cover only half the children, and half would still be at risk. Should I start drafting amendments for Report that say, “Let’s include people who provide home facilities for overseas students or, perhaps, cadet force leaders”? If anyone has a strong influence over a young person, it is a cadet force leader. Should we start coming up with a list based on evidence that he might accept on Report?

[Chris Philp]

There may well be evidence in those areas, but the shadow Minister does not need to draft amendments for Report, because, if the Bill in its current form is passed, it will not require primary legislation to add those other categories; it will simply require a statutory instrument. Therefore, once passed—if passed in this form—the Secretary of State will of course keep this under constant review.

It will then be open to anyone, including organisations such as the APPG or people such as the shadow Minister or anyone else, to make representations to the Department—the Department will also keep it under review—that there is evidence that group X, Y or Z should be added. The case might be that they have an unusual degree of influence, capable of being abused, and that an evidence base supports that, so they should be added to the list. By virtue of a statutory instrument under subsection (4), that can be done.

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[Alex Cunningham]

Those reassurances are helpful, but will the Minister tell us what criteria we should apply if we are to bring forward suggestions of other groupings to be included in the legislation?

[Chris Philp]

The criteria are not specified in subsection (4), which simply says:

“The Secretary of State may by regulations amend subsections (1) and (2) to add or remove an activity in which a person may be coached, taught, trained, supervised or instructed.”

However, providing the profession or category of person being added is involved in coaching, teaching, training, supervision or instruction—provided they do one of those things—they are capable of being added.

On the criteria that might be applied, that would be for the Secretary of State and a Delegated Legislation Committee to determine. I suggest that what would make sense is for the criteria to consider two or three things: first, the degree of influence that the person has—that case has been met in the case of sports’ coaches and religious ministers or practitioners—and, secondly, that there is an evidence base to demonstrate that abuse of that position of authority is occurring. Again, that case has been made for sports and ministers or practitioners of religion, because the data that the APPG received shows that.

I suggest to the Committee—this is not in the legislation—that if those two criteria are met, it might be appropriate to make further additions, but that would be for the Secretary of State and a Delegated Legislation Committee to decide, case by case. I have no doubt that the hon. Member for Rotherham, the APPG and others will make that case. The mechanism is there to add things pretty quickly from month to month, or year to year, as the cases get laid out.

In conclusion, it strikes the Government that the provision is the best way of protecting vulnerable people—we have started with sports and religion—but we have also created the facility to expand the list quickly and easily by delegated legislation, as the case gets made by campaigners over time. On that basis, I hope that the Committee will be content to see clause 45 stand part of the Bill. I hope that the provisions that I have been explaining mean that amendment 7 does not need to be pressed to a vote.

[Sarah Champion]

I have heard everything that the Minister said. I 100% put on the record my gratitude that our work to research and prove the case around faith leaders was heard and listened to. However, my concern is the clarity. No legislation is effective unless it is out in the public domain, whether that is for the professionals who need to use it or, for example, the victims or families who need to know it is there.

As the Bill stands, my concern is that, were we to go to for the

“regularly involved in caring for, training, supervising or being in sole charge of”

persons as the definition that means it is a crime, any parent or individual would know what that meant. I do not want to press the amendment to a vote now, but I will reserve the right to later, because 21 MPs spoke on this in the Chamber, so I think it needs to be heard by the Minister. We need that clarity so that any parent or child knows what their rights are. Just having certain professions defined muddies the waters further rather than a blanket definition based on role and responsibility. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[The Chair]

We have had a fairly thorough debate, so I am not sure there is any need for a clause stand part debate.

Clause 45 ordered to stand part of the Bill.

Clause 46

Criminal damage to memorials: mode of trial

Question proposed, That the clause stand part of the Bill.

[Chris Philp]

I will briefly introduce the clause. At present, when someone commits an act of criminal damage, where the value of that damage is less than £5,000, the matter is triable summarily only, with a maximum penalty of three months’ imprisonment or a fine of up to £2,500. The clause makes a change and says that where the item being damaged is a memorial, where it commemorates someone, the offence of criminal damage is triable as an either-way offence and potentially, although not necessarily, can be heard in the Crown court with a higher sanction.

The reason for that is that there are some occasions when criminal damage is committed against, for example, a war memorial and although the financial value of the damage may be less than £5,000, the symbolic damage to society is far higher. We have particularly in mind acts that desecrate war memories; memorials to people who have sacrificed their lives for our freedom—the ultimate sacrifice. We and, I think, most of the public take the view that where their memory is desecrated in that way, it is appropriate that the courts have open to them a higher criminal sanction. It does not mean the judge has to use it. We still have judicial discretion so the judge can make a determination based on the facts of the case, but we believe that things such as desecrating war memorials and dishonouring those who have sacrificed so much should, in some circumstances, be punishable by more than just a fine and three months in prison.

[Alex Cunningham]

I am absolutely gobsmacked that after the Government made such a tremendous fuss in the media, with announcements in Parliament and all manner of things, that the Minister has just dismissed his clause in a matter of a couple of minutes.

[Chris Philp]

I did not dismiss it.

[Alex Cunningham]

The Minister did not dismiss it, but he addressed it for two minutes after everything that went before.

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[Chris Philp]

A point is no less powerful for brevity. In fact, some of the most powerful points are brief.

[Alex Cunningham]

I will not reply to the Minister by applying brevity to my speech, because we need seek reassurances from the Government on several things. It is fair to say that clause 46 generated much discussion on Second Reading, and I am glad that we are now able to discuss it a lot more fully in this focused forum. I am sure it is no surprise to the Minister to hear that we have some serious reservations about the clause.

First, we do not believe that it in any way helpfully adds to the existing law on criminal damage. Much has been made by the Government about how those who vandalise statues will feel a greater force of law in relation to their actions and could face up to 10 years in prison. Speaking in support of the proposed changes, the Home Secretary said:

“My message today is simple: actions have consequences. I want vicious individuals held to account for the violence and criminality that they perpetrate.”—[Official Report, 15 June 2020; Vol. 677, c. 542.]

That sounds very serious indeed. However, the Government’s impact assessment states:

“No additional prison capacity needs to be built because the expected prison caseload increases are less than 1 place per annum. Prison construction costs are thus treated as negligible.”

If the legislation will result in less than one prison place a year, why bother changing the mode of trial at all?

The impact assessment goes on to say:

“The number of cases that will be sentenced for this offence every year range from 10 to 60, with a best estimate of 35…These figures are based on a mixture of published research and internal projections.”

Let us say that we do get 35 cases a year. We then need to know how many would be for damage worth less than £5,000. Then, within that even smaller subsection of cases, we need to work out how many cases it would really be appropriate to send to the Crown court for sentencing. Perhaps the Minister can tell us, but my guess is that it would probably be none at all.

Then there is the issue of the utter randomness of increasing penalties for some vandalism offences in this wide-ranging crime Bill—a Bill that completely omits to make changes in the criminal law to offer more protection to victims of other types of offences, victims who are actual living breathing people, whom we believe the public at large, and Members of the House, think pose a more pressing concern to legislators. Child criminal exploitation and sexual offences are just a couple of examples that spring to mind. As the Secret Barrister has noted:

“While in practice the maximum of 10 years would rarely, if ever, be imposed, the new cross-party consensus appears to be that displaying disrespect—not even quantifiable damage—to an inanimate object is worthy of a higher maximum sentence than inflicting grievous bodily harm, violent disorder, affray, theft, carrying knives, acid or offensive weapons, voyeurism, upskirting and causing death by careless driving, to name but a few offences that cause tangible harm to real people. It would inject criminal sentencing, which already suffers from wild incoherence and inconsistency between offence types, with another dose of gratuitous disproportionality.”

I agree with the Secret Barrister on all but one part of that: there is no cross-party consensus.

The Government have done much good work to simplify the vexed and confusing world of criminal sentencing by overseeing the implementation of the sentencing code last year. Yet in clause 46—and in so many other parts of the Bill—the Government seem enthusiastic to trample across the good progress that has been made.

I would particularly welcome some information from the Minister on what guidance will be used to quantify the level of sentimental and emotional impact necessary for the case to be sent to the Crown court. Whose emotions will be measured, and how? Surely clear guidance would provide at least some protection against the “gratuitous disproportionality” about which the Secret Barrister warns.

The Sentencing Council has already helpfully provided detailed sentencing guidance on that very topic. In fact, for the offences of

“Criminal damage (other than by fire) value exceeding £5,000”

and of

“Criminal damage (other than by fire) value not exceeding £5,000”,

the guidance refers to damage to

“heritage and/or cultural assets”.

It is, therefore, already covered in law. I am no lawyer, but I strongly presume that that includes war memorials and that the sentencing court should treat that as an aggravating factor when passing sentence.

I ask again: how does clause 46 helpfully add to the law? The Opposition’s position is that it does not. It goes way beyond the anticipated proposals to address protection for war memorials. Instead of working with us to address the concerns of their Back Benchers, the Government have tried to make this a wedge issue across the political divide, to the detriment of the law. We would have been happy to engage on provisions in relation to war memorials and protections for our communal symbols of such great national sacrifice and pride, but we are certainly not happy to do so on the wide scope covered by the clause.

The clause defines a memorial as

“a building or other structure, or any other thing, erected or installed on land (or in or on any building or other structure on land)”.

That is weird: “any other thing”. Why have the Government drafted the clause so widely? I would be grateful for guidance from the Minister on what type of serious offending the Government hope to catch with that capacious definition.

Proposed new section 2(11B) reads:

“For the purposes of that paragraph, any moveable thing (such as a bunch of flowers)”.

The Bar Council notes:

“This raises the prospect that the removal of a bunch of flowers could result in proceedings in the Crown Court.”

It goes on to say:

“Putting aside questions of whether one would need to get permission to remove old bunches of flowers, such an allegation could be sent to the Crown Court if either a magistrates’ court considered the offence to be particularly serious”—

I do not think that it would—

“and beyond their maximum sentencing powers of six months’ imprisonment, or if the defendant”

opted for trial by jury. That means that somebody who has removed a bunch of flowers from a graveside could opt for a trial at the Crown court.

I know that the following example is from Scotland, but it comes from my childhood. Let us imagine that an old bunch of flowers left for commemorative purposes at the memorial for a dog such as Greyfriars Bobby—a delightful memorial that is well loved in its community—is picked up and put in the bin. Does the Minister think that the person who put the flowers in the bin should end up answering a case in the Crown court? I am sure he does not. I am sure that the intention behind the clause is not to cover that type of incident, but the fact that we could even ask the question strikes me as absurd.

--- Later in debate ---

We must see this clause in line with the provisions made in part 3 on public order, which I know we will come to debate more fully. This clause started its life with cross-party support; all of us in this room deplored it when the Cenotaph was vandalised. But then the Government took this good idea, and twisted it. Now the clause is so far-ranging that, as I have said before, someone putting a bunch of flowers in the bin might end up in the Crown court. It introduces unnecessary confusion and disproportionate responses into criminal sentencing, without providing safeguards against perverse outcomes. If the Government would like to address these fundamental concerns, the Opposition would be happy to look again at provisions for war memorials. I would very much welcome reassurances from the Minister on the issues I have raised.

[Chris Philp]

Let me start by answering some of the points the shadow Minister has just made. First, he questions why the measures are necessary when the Sentencing Council guidelines already have, as aggravating factors, things such as “emotional importance”. In reading out those guidelines, he acknowledged their title:

“Criminal damage (other than by fire) value exceeding £5,000”.

The whole point of this new clause is that it addresses circumstances where the value is less than £5,000. That is precisely its purpose. There may be cases where the monetary value of the damage may be less than £5,000 and therefore not subject to the Sentencing Council guidelines that he read out, but the damage to our national discourse—our national state—is significant, because war memorials represent all of those hundreds of thousands of people who gave their lives for our freedom. Even if the value of the damage is less than £5,000, the disrespect and dishonour done to those who sacrificed and secured our freedom is a matter that this Government take seriously. I am disappointed to hear that that is not something that interests him.

[Alex Cunningham]

The Minister is relying on these war memorials again. He is talking about them, but this is an extremely wide provision, covering all manner of memorials and of places, from individual gravestones all the way through to the Cenotaph. How on earth will a prosecutor determine the emotional value of one crime against that of another? Is the emotional value of a small grave desecrated the same as the Cenotaph?

[Chris Philp]

First, it is not the prosecutor who makes that determination; it is the judge. Secondly, the judge makes such determinations the whole time. Indeed, judges already make those determinations under existing sentencing guidelines for the more serious either-way offences. It will be for the judge to decide whether the nature of the damage merits a higher sentence or a lower one. That is why we have judicial discretion. I have confidence in our country’s judiciary to be able to draw the distinction between desecrating the Cenotaph, which honours the memory of hundreds of thousands of servicemen and women, versus something else.

The point is that, at present, the judiciary do not have that discretion open to them, because where the value of the damage falls under £5,000, the matter is triable summarily only, with a very low maximum penalty. The clause gives the judiciary the discretion to take into account such considerations and to sentence as appropriate. The Government’s view, clearly, is that desecrating the memory of brave servicemen and women who have given their lives in defence of our freedom is something we should stand up against. This Government are standing up against it; I do not know why the Opposition are not.

[Alex Cunningham]

The Minister is being unkind. In no way are we against some of the things in the Bill. We do not want to be in a position in which we are not supportive, respectful and everything else. I think he should withdraw that remark.

[Chris Philp]

I will be happy to withdraw my remark when the shadow Minister joins us in supporting the clause. If he does so, of course I will withdraw it.

[Mr Robert Goodwill (Scarborough and Whitby) (Con)]

Surely when something is stolen, damaged or desecrated, it is about not just its monetary value but the effect on the victim. In this case, the victim could be the children or grandchildren of the person commemorated on that war memorial. A stolen photograph album has no monetary value, but the actual value to the family is very strong.

[Chris Philp]

My right hon. Friend makes a powerful point. That is exactly the purpose of the clause. The monetary value, the £5,000, does not reflect the profound emotional damage that can be caused when something like a war memorial is desecrated.

The shadow Minister asked how it will be decided whether a matter is heard in the Crown court or in the magistrates court. As he rightly said, the defendant always has the right of election for an either-way offence but, generally, the allocation decision is set out in the allocation guidelines of 2016. A decision is based on whether the anticipated sentence will exceed the magistrates’ sentencing powers—if the magistrates think that it might exceed their sentencing power, they will send up to the Crown court—or if the case is of unusual legal or factual complexity.

There is therefore a flexible system for deciding where a case is heard. Some of the cases might be heard in the Crown court and some in the magistrates court, depending on the facts of the case, so by no means does it follow that everything will end up in the Crown court. It is true that the number of anticipated offences is low— between 10 and 60 a year—but we are talking about acts that desecrate the memory of servicemen and women. I hope that that the Committee can agree on that in supporting the clause.

[Alex Cunningham]

Will the Minister confirm that all the offences captured in those statistics were against war memorials?

[Chris Philp]

The impact assessment covered all offences that might be caught by the clause, clearly many of which might well be war memorials. We have seen examples of war memorials being desecrated and the Cenotaph was attacked last July. A war memorial in the constituency of my hon. Friend the Member for Corby was desecrated—indeed, it was possibly even destroyed—and he led a campaign to get it replaced. Sadly, such things happen, and it is important that we as a House send out a message that we stand with our servicemen and women when their memory is attacked in that way.

--- Later in debate ---

[Sarah Jones]

The Opposition support these clauses, for exactly the reasons the Minister has outlined. The case of Keith Bennett was incredibly awful. Today we saw the news about the ongoing search for remains in a Gloucester café. Mary Bastholm was 15 when she went missing in 1968. She is a suspected victim of Fred West. That search, for various legal reasons, was able to go ahead. Unfortunately, the police have today said that they have not found any human remains, so for Mary’s family the ordeal goes on, to try and get some kind of closure. However, for that family at least we were able to look for remains, but in the case of Keith Bennett the law did not allow the police to look. Therefore, it is absolutely right that we correct the law.

Question put and agreed to.

Clause 50 accordingly ordered to stand part of the Bill.

Clause 51 ordered to stand part of the Bill.

Schedule 6 agreed to.

Clause 52 ordered to stand part of the Bill.

Clause 53

Functions of prisoner custody officers in relation to live link hearings

[Chris Philp]

I beg to move amendment 64, in clause 53, page 44, line 33, leave out “and (4)” and insert “to (4A)”.

This amendment and Amendments 65 to 67 ensure that the references to live audio links and live video links in clause 53(3) are consistent with the provisions made about live links in clause 168 of, and Part 3 of Schedule 19 to, the Bill.

[The Chair]

With this it will be convenient to discuss Government amendments 65 to 67.

[Chris Philp]

Clause 53 seeks to extend to prison escort and custody service officers the right to accompany prisoners in police stations, such as for the purpose of conducting video remand hearings. Owing to an historical anomaly, they are unable to discharge that function at the moment. It became clear during the coronavirus, where video remand hearings were used quite widely to avoid having to take a prisoner to court, that PECS officers did not have those powers, so we had to ask police officers to do that instead, which took up a lot of police time. The police did that, and I pay tribute to them for doing so, but that took up police officer time that could have been spent out on patrol arresting criminals.

The clause amends the Criminal Justice Act 1991 to provide PECS officers with those powers to have custody over prisoners in police stations, for the purpose of overseeing preliminary sentencing enforcement hearings by way of live links. It is a good operational improvement that I hope will make things more efficient where it is appropriate to use it.

Amendments 64 to 67 make some small technical amendments to the clause, because there were some references to a piece of legislation that is being repealed. They simply replace those reference with the correct ones.

[Alex Cunningham]

We understand what the Government are trying to achieve in this clause, but we have a number of concerns about what it will lead to in the longer term. I would welcome some ministerial assurances that those concerns will be considered.

Before that, I thank Transform Justice for its energetic scrutiny of the amendment, which I am sure will add much value to the debate. The Government’s fact sheet describes clause 53 as

“enabling legislation to ensure that any future VRH rollout is not reliant on police resource, which would be an ineffective and inefficient use of their training and skills”.

It also notes that the implementation plan for rolling out video remand hearings across police stations

“is being developed and not yet finalised”,

and that

“A solution to the long-term structural and resourcing issues is required”

to facilitate the roll-out. In that case, it does not seem necessary to include it in the Bill.

If there is so much work to be done to have proper functioning video remand hearings, why are the Government bringing that forward at this time? We take a similar position to that of the Law Society, which says that although it supports the use of prisoner custody officers to facilitate video remand hearings during the pandemic, it does not believe it should be a permanent feature of the justice system.

The rationale for legislating to increase the use of audio and video live links across the Bill seems somewhat confused. On the one hand, the need for covid-19 protection is mentioned; on the other, the measures are justified on the grounds of efficiency and modernisation. The covid-19 motivation is particularly confusing, given that the Bill will not be enacted for some time, when the covid safety of courts will, we hope, no longer be an issue. Can the Minister tell the Committee the motivation for video remand hearings beyond the pandemic?

Even more problematic is the lack of evidence to back up the functioning of the proposals. Even now that we have been living with the pandemic measures for a year, we still have no evidence beyond the anecdotal about the extremely significant changes to how we run hearings. This is one of a number of remand changes made during the pandemic for which we are seriously lacking detail. The other, more concerning, one is that in September 2020 the Government increased the length of time they are legally allowed to hold people on remand from six to eight months, a provision in place until 28 June 2021. While I am on the topic, I would welcome an assurance from the Minister that the custody time limit extension will lapse, and he will stick to his word in the SI Committee some months ago and it will not be extended again.

To go back to clause 53, before the pandemic very few police forces ran video remand courts. Where they did, defendants detained by the police post charge would not be taken to court for their first appearance, but would appear from police custody by video link, with their lawyer, the judge, the prosecutor and so on in the physical courtroom. When the pandemic hit, PECS contractors, who usually transport these remanded defendants to the court, said that courts and court cells were not covid-safe enough and refused to transport all the prisoners who needed to go to court, so police forces in almost every area agreed to set up makeshift courtrooms in police custody suites that would be video linked to the magistrates court. The police agreed to run these courts purely on an emergency basis and were not paid to do so by Her Majesty’s Courts and Tribunals Service. As the first wave eased and the courts implemented their own covid-19 safety procedures, police stopped running video remand courts and most areas reverted to the traditional arrangement.

We are not aware of any significant concerns with the traditional arrangement, so again I ask: why do we need this clause, which lays the groundwork for even more video remand courts in the future? There are significant cost implications to running the hearings in this way. The Government have published an economic impact assessment for the use of PECS staff in police custody. This shows a positive cost-benefit, but the assumptions need some further scrutiny.

To quote from the material provided by Transform Justice:

“PECS staff would only be used in custody if the police agreed to run video remand courts permanently. Despite the government stating ‘VRHs will indeed be rolled out at some point in the future’…no such agreement has been reached—police forces have given no commitment to running and hosting video remand courts. Given that most police forces are not running video remand courts currently, the installation of video remand courts nationwide would incur considerable costs for the police, including premises costs, IT infrastructure costs, costs of keeping defendants in cells for longer, and staff costs. During the first months of the pandemic the costs incurred by police in running emergency video remand courts were considerable—the Met had to use 45 staff to manage the process and estimated the operation cost the equivalent of £2 million a year. Though some police costs would be offset through the support of PECS, it would still cost police staff time to liaise with PECS staff and would incur the other costs. The ‘Do nothing’ option in the economic assessment assumes that the police costs of running video remand hearings have already been budgeted for by local forces—but this is not the case.”

I know it is a very long quote, Mr McCabe, but it continues:

“The economic impact assessment suggests that the PECS staff in police custody are in addition to existing PECS staff. PECS staff will still need to transport defendants from police custody to court and to supervise prisoners at court. Therefore, if PECS staff allocated to police custody for video remand hearings are additional, PECS costs will be greater, police will incur significant costs and the courts will still need to be able to accommodate some of those who have been detained by the police in court cells. We therefore suggest that the economic impact assessment does not encompass any of the costs associated with having PECS staff in police custody, so the cost-benefit cannot be judged.”

I would welcome the Minister’s comments on Transform Justice’s analysis because, as far as I can see, the economic justification for the measure goes to the root of why it is being proposed. Furthermore, will the Minister accept that the implementation of the PECS staff in police custody proposal should be contingent on a full cost-benefit analysis of video remand hearings versus the physical equivalents? If he is not prepared to do that, why not?

We have reservations about the impact that this change would have on justice. It is vital that changes to our justice system that would impact on the very principles that underlie it, such as the right to a fair trial, are properly tested before they are introduced. The stakes are too high for us to get it wrong, so will the Minister consider safeguards to make sure we get this right? These include that every defendant who may be assigned a video remand hearing should be subject to full health and mental health screening, and if necessary an assessment, by a health professional before the case is listed; that this screening information and needs assessments from police custody are made available to the bench or judge before that day’s court hearings start; that a simple system is set up to bring those defendants immediately to court whom the bench or judge deems need face-to-face hearings; and that all those who are deemed vulnerable—vulnerable adults and all children—should automatically be assigned a physical hearing.

We do not really see the need for the provisions in the clause, but I stand open to hear the Minister’s justification for it. If need can be demonstrated for it, we would welcome the Government’s commitment to the safeguards to access to justice that I have just raised, alongside the further cost-benefit analysis.

[Chris Philp]

I thank the shadow Minister for his speech, and for the thoughtful questions that he has posed in it. As he says, this is enabling legislation to create the option of using PECS officers this way in the future. We were rather caught by surprise during the pandemic when it transpired that these powers did not exist at a time when we wanted to use lots of video remand hearings for obvious, covid-related reasons. As the shadow Minister said, this Bill will hopefully receive Royal Assent some time after coronavirus has become a memory and is behind us. None the less, these enabling powers are worth taking, because it is conceivable that in future, even after coronavirus, we may want to use video remand hearings more than was done previously, which was essentially not at all.

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

Chris Philp Excerpts

Committee stage
Tuesday 25th May 2021 Public Bill Committees

[The Chair]

Nobody wants to press any other amendments to a vote, and new clause 44 will be dealt with later, so we come to the decision on clause 1.

Clause 1 ordered to stand part of the Bill.

Clause 2

Increase in penalty for assault on emergency worker

Question proposed, That the clause stand part of the Bill.

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

It is a pleasure, as always, to serve under your chairmanship, Sir Charles. Clause 2 increases the maximum penalty for common assault or battery against an emergency worker from 12 months to two years’ imprisonment, thereby delivering our manifesto commitment. Our emergency services place themselves in harm’s way to protect us, and it is therefore right that we treat with particular seriousness any assault committed against an emergency worker, which is why we seek to legislate to increase the maximum sentence for assault against them from 12 months to two years’ imprisonment. I take this opportunity to pay tribute to our emergency services for the work they do on our behalf and on behalf of all our constituents, keeping us safe, looking after us and protecting us. I am sure the whole Committee will be united in expressing that sentiment.

We consulted last year on extending the maximum penalty from one year to two years and found overwhelming support for the move. In evidence last week, we heard representatives of policing and emergency services expressing strong support for the move as well. It will give courts the ability to pass higher sentences, reflecting the seriousness and severity of these offences. The clause does not change the definition of emergency workers. That is set out in section 3(1) of the Assaults on Emergency Workers (Offences) Act 2018 and covers police constables; National Crime Agency officers; prison and custody officers; fire, rescue and search personnel; and those people providing NHS services. The clause simply amends the maximum sentence that appears in that Act from 12 months to two years.

It is worth saying that, where more serious assaults occur against emergency workers, such as actual bodily harm, grievous bodily harm or grievous bodily harm with intent, those offences will be charged as those more serious matters, which of course have higher sentences. Actual bodily harm has a maximum sentence of five years; GBH, under the Offences Against the Person Act 1861, also has a five-year maximum; and GBH with intent has a maximum sentence of life. We of course expect more serious assaults on our emergency workers to be prosecuted and sentenced accordingly.

It is worth noting that the proportion of defendants in assault cases against emergency workers receiving immediate custody went up last year compared with the year before, from 17% to 25%, and about 10,000 cases were successfully prosecuted and sentenced. This legislation is being used on a fairly wide basis.

No amendments have been tabled to the clause. I believe it commands widespread support across the House and among the public. I do not want to detain the Committee longer than necessary. I think I have covered the key elements of the proposals, and spoken about the importance of the work of our emergency services and the tribute that we pay to them. On that basis, I commend the clause to the Committee.

[Maria Eagle]

I do not wish to detain the Committee for long; I have just a couple of points. The Minister set out that the consultation has gone on. It was obviously a manifesto commitment of his party, and I generally approve of manifesto commitments being implemented. Even if I might not agree with all the ones that were in his manifesto, I can see the point, but am I not right that the original intention of my hon. Friend the Member for Rhondda (Chris Bryant), who introduced the Assaults on Emergency Workers (Offences) Act, was to have a two-year maximum, but it was reduced during the passage of the legislation to one year as a consequence of the Government of the day wanting it to be one year?

I understand that there have been consultations and a manifesto commitment since, but from where does this Damascene conversion come? It seems to me that the Government originally said, “We’ll support the legislation if the maximum is one year,” and within months of it being implemented they were saying, “It’s got to be two years,” which was what my hon. Friend actually wanted. He cut it in order to get Government support. I am interested to find out where that conversion came from. Was there some sudden bit of evidence that convinced the Government that my hon. Friend was correct, in which case I congratulate the Government on being willing to change their mind. I would be interested to hear from the Minister where that change of heart came from.

Secondly, I notice that the British Association of Social Workers and the Social Workers Union have submitted a petition to the Government, which I understand has quite a few thousand signatures, asking them to amend the legislation to include social workers in the definition of emergency workers. No doubt there are arguments for and against that, but I wonder whether the Minister has anything to say about whether the Government have any intention of doing that.

--- Later in debate ---

[Chris Philp]

Let me reply briefly to some of the points that have been raised by Opposition Members.

The hon. Member for Garston and Halewood asked about what had prompted the change from one year to two years and if there had been a “Damascene conversion.” The change is evidence that the Government are always willing to listen and to reflect. They have listened to organisations such as the Police Federation and to the results of the consultation. It is no bad thing that a Government are willing to keep things under review and to make changes, where there is public appetite or evidence to support them, rather than simply to remain with a particular position that was taken two or three years ago. It is a sign of maturity and wisdom that we are willing to make changes as appropriate.

Both the hon. Lady and the hon. Member for Rotherham asked about other workers, including social workers. The 2018 Act, which passed with widespread cross-party support, drew a particular distinction about frontline emergency workers—the police, firefighters, frontline NHS staff, rescue services and so on—who are putting themselves directly into harm’s way, because what they are doing is unique.

However, as both hon. Members and the shadow Minister said, other workers also have contact with the public, including retail workers and social workers, which is important. That is why the sentencing guidelines we already have rightly recognise that a victim might be working in the public sector or otherwise providing a service to the public, including working in a shop, as an aggravating factor. Because it is recognised as an aggravating factor, it means that if the victim is one of those people, the judge is duty bound to pass a higher sentence than would otherwise be the case, so that is accounted for in the way I just described.

The shadow Minister spoke a little about the sentences passed down and mentioned that in 2019 only 6% of sentences for common assault on an emergency worker were for six months or more. That went up a bit last year. The figures for 2020 came out just a few days ago, and it went up to 15% in 2020. The average sentence has gone up as well. By elevating the maximum sentence today, we in Parliament are sending a clear signal to the judiciary and others that we expect this offence to be taken extremely seriously, and sentenced accordingly and commensurately.

My understanding is that the Sentencing Council guidelines for the offence as it already exists are due to be published in the near future, possibly as soon as later this week. They will provide further clarity to the judiciary, but Parliament’s voice will be heard clearly today in signalling that we expect longer sentences for people who assault our emergency workers. I am sure the judiciary will hear that.

The shadow Minister made some points about ensuring that the police are properly protected. She drew particular attention to the risks of attending lone patrols and the need for resources. We are in the middle of a successful police recruitment campaign, which will eventually target 23,000 extra police. We are about a third of the way through that. The result of that extra recruitment will be to mitigate some of the risks that the shadow Minister mentioned. As a fellow Croydon MP and her constituency neighbour, I am well aware of those risks and was painfully affected by the awful murder of Sergeant Matt Ratana. I take the opportunity to join the shadow Minister in paying tribute to Sergeant Ratana and his family. He died in the course of duty after a long and distinguished career, and I am sure we all want to remember him and his family.

I hope that answers the questions that were raised, and I commend the clause to the Committee.

Question put and agreed to.

Clause 2 accordingly ordered to stand part of the Bill.

Clause 3

Special constables and Police Federations: amendments to the Police Act 1996

Question proposed, That the clause stand part of the Bill.

[Victoria Atkins]

Sir Charles, noting that there are no amendments, I do not propose to speak to the clause, which I commend to the Committee.

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

Chris Philp Excerpts

Committee stage
Thursday 20th May 2021 Public Bill Committees

[The Chair]

Thank you very much. Mr Philp.

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

Q Thank you, Sir Charles, and thank you everyone for joining us this morning and for the work that you do in trying to protect the public and rehabilitate offenders. We are all very grateful to you.

May I start with problem-solving courts? Clearly, as with so many things, it is important that the implementation is right; there are some things that work and some things that do not. Can you give your views on the things that have worked and the things that have not worked in problem-solving courts that we have tried in the past—I think there was one in Merseyside a few years ago—and the lessons that we might learn from problem-solving courts in the US, as we design and implement the pilot?

Helen Berresford: This is not something that we have significant expertise in at Nacro, in terms of learning from previous pilots. With any of these things, we have to understand, as you say, what has worked and what has not worked.

The point that we made earlier about the role of building judicial confidence, which was picked up on, is a really important one, and that confidence has to be central to problem-solving courts as we roll them out. Getting the right people involved and the right support functions is important. One of the important purposes—is it not?—of problem-solving courts is that you bring the right people into the discussions and keep them engaged.

I will just refer, for example, to community sentence treatment requirements. We know from our experience of what we have seen that engaging with the judiciary in that process has a really positive impact. That is one of the things we have seen and that we would like to see much more of in the roll-out of CSTRs, and I would say the same for problem-solving courts.

Sam Doohan: In addition to building interest and engagement in the judiciary, one of the other issues is also building interest and engagement among the local population. The courts need to be credible, both to offenders and to the local population. That is probably the biggest step that needs to be taken. If local people think that someone will effectively get just a slap on the wrist and that the problem-solving court does not solve the problem, they will not bother reporting minor crimes and, to some degree, neither will the police. It is very important that that credibility takes centre stage and that the whole process has some faith that its measures will actually be successful.

[Chris Philp]

Q You mentioned CSTRs, which obviously are referred to prominently in the White Paper. I strongly support them and want to see them being rolled out, because they treat the underlying causes of offending, in particular mental health problems, and drug and alcohol addiction.

First of all, do you share that analysis, particularly where a CSTR might be an alternative to a short sentence? If you do share that analysis, what do you think we can do to encourage the wider use of CSTRs, in addition to the extra money for the actual treatment that is being provided at the moment? I ask that because I would like to see them being used a lot more.

Campbell Robb: Yes, we would too, and I think the evidence suggests that when they are used properly they can have a significant effect, on both the addiction or the mental health issues that people are suffering from, and ultimately—we think in previous studies, but not recently—potentially on reoffending. So we are very supportive of them.

I think that, as you would expect us to say, they need to be part of a wider network that is available, ranging from wider drug treatment services, through the NHS and other public health bodies, to job opportunities. They are part of a holistic approach—part of a whole series of interventions that can help people.

On their use as an alternative to sentencing, we could not agree more. That is the work that Nacro does every day, with hundreds of people across the country. If we can use them to help support people through their mental health issues, or drug and alcohol issues, and keep them out of the criminal justice system, then absolutely; we could not agree more. We are very supportive and would want to work alongside to get more of them up and running as soon as possible.

I agree that having the judiciary, as well as the public, see them as a viable alternative is something we all need to work on once the Bill becomes an Act, so that we really get that buy-in and momentum behind them so that they can be used more widely.

Helen Berresford: We have seen an increase in their usage in the test sites. The only point I would add, without repeating my earlier comment, is that building judicial confidence will be an important part of this. That is a really important thing to learn from. Continually evaluating and learning as we roll these out will be really important, learning where they have worked and where they have not. If we can build that in, I think there is a really positive role for community sentence treatment requirements.

Sam Doohan: There is also an issue with building faith with offenders and the people who will potentially receive treatment. One of the concerns that we hear with these kinds of disposals is that people are worried that their criminal record will show that they have been in drug treatment or mental health treatment. In general, although not in the absolute, that is not a problem, because it will not show up and they will not have to disclose it. But people do not know that and they do not necessarily have a great deal of faith that it will not show up three, four or five years later, when they have turned their life around.

I mention that in particular because a DWP study from 2010, I think, found that the only group who, in employment terms, were discriminated against on a par with people with convictions were alcoholics and drug users. Therefore, ensuring that people understand the full ramifications of co-operating with a drug treatment programme—that it will be private, to a large degree, and that it will give them the opportunity to move on positively afterwards—would go a long way.

[Chris Philp]

Q Thank you. Helen, you raised a point about the potential for custodial sentences following a breach of a community order. Does it reassure you that obviously that is a matter of judicial discretion, and that we expect judges to use custody only as a last resort—indeed, they are bound to do so? In order to ensure that community orders are complied with, judges need to have that option as a last resort. It is to be used rarely, but none the less it needs to be available, should it ever be required.

Helen Berresford: Our preference—and yours too, I hear—is very much about looking at community sentences, where they are more effective. If there is an option of custody, I think we really need to build that in as an absolute last resort, and it is worth looking at how we can ensure that is the case. Certainly, on a broader point, in the past we have seen increases in recall to prison, and in some cases people have been recalled for very minor breaches of their conditions, and nothing to do with committing a crime. It is really important that we ensure that is not what we are doing. If there is a condition about prison as a last resort, we have to make sure that it is for a very significant reason and that it is truly a last resort.

[Chris Philp]

Q Thank you. I have one last question. Do the panel have any views on the principle of statutory minimum sentences?

Sam Doohan: Broadly speaking, statutory minimums cause problems. The reduction of judicial discretion means that cases cease to be individual and start to be set by central Government policy. Although it can be argued either way, depending on your taste, were we to follow an American model, where if you get three strikes and then a very long prison sentence for a relatively minor crime, under the current British criminal records system that would almost certainly be disclosed for life, and it would not just be a fairly stiff sentence for repeat offending; it would become a life sentence immediately. That is something always to be aware of when thinking about where we set not just sentencing guidelines, but sentencing minimums in particular. If the judge thinks that six months is appropriate, we should not be the ones to argue with that.

Campbell Robb: We agree that judicial discretion is paramount. We think that is a very, very important consideration. For any changes, it is important to be aware of that and to have an urgent space to see what impact those minimum sentences are having across the piece, in terms of numbers, time and then rehabilitation.

[The Chair]

I thank our three witnesses for a very strong performance and for answering the questions so fully—it is much appreciated.

Examination of witnesses

Dame Vera Baird, QC, gave evidence.

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.)

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

Chris Philp Excerpts

Committee stage
Tuesday 18th May 2021 Public Bill Committees

[Victoria Atkins]

Q My final question is on the extraction of information from digital devices. Particularly in the context of sexual offences, we have an understanding of the impact that searching and seizing digital devices, sometimes for very long periods of time, can have on complainants and their willingness to start and support the police in an investigation and on the attrition rate, where complainants withdraw from cases as they progress. What is your understanding of the framework and code of practice set out in the Bill? What will that do to help complainants in future, particularly in relation to sexual offences, although it will apply across the board?

Assistant Commissioner Hewitt: As I alluded to, it is critical to have a clear code of practice and framework to ensure the extraction to be proportionate and necessary for that investigation, and to be very clear about timelines, how that will be done and how the victim—or the complainant—will be treated throughout. This has been a very challenging area for us. Having that certainty and clarity of the guidelines will help to ensure that everybody understands the process. As I said, the ability for us to do that as quickly as we can, to deliver the evidence we need, is really important to maintain confidence, as you say, for people to come forward, and to maintain those complainants throughout the process, to reduce the attrition levels.

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

Q As always, it is a pleasure to serve under your chairmanship, Mr McCabe. I join other members of the Committee in thanking the police for their service in the difficult circumstances over the past year.

I have two brief questions. The first relates to the proposed increase in the penalty for assaulting an emergency worker from 12 months to two years. Does the police service welcome that change? Do they think that it will potentially deter people from attempting to assault officers in the discharge of their duties?

Assistant Commissioner Hewitt: Yes, we welcome that change very much. It is sad to report that we have seen a steady increase in assaults on emergency workers, primarily police officers. In the month up to 14 March this year, there was a 19% increase on the previous year in assaults on emergency workers, predominantly police officers.

We have done an enormous amount of work in the service; we did an officer and staff safety review process, which is working to improve the safety of our officers and staff. We have worked closely with the Crown Prosecution Service, which has been supportive in achieving charges where officers or staff are assaulted in the course of their duties. I think the increase in the sentence is positive, provided, of course, that those sentences are handed down when people are found guilty at court. We are supportive of that, because it demonstrates the seriousness and the importance of the fact that, although our officers and staff protect the public and do dangerous things, they should not expect routinely to be assaulted.

[Chris Philp]

We completely agree, thank you. My final question relates to out of court disposals. There are proposals in this Bill to simplify the number of out of court disposals from six to two. That has been trialled, I think, in three forces over the past few years—

[The Chair]

Order. Minister, I am very sorry to interrupt you, but we are out of time. We will have to save that question for another witness or another occasion. I am afraid that brings us to the end of the Committee’s allotted time to ask questions. I thank our witnesses on behalf of the Committee. Apologies, Minister, but we are on a pretty tight schedule.

Examination of Witnesses

Chief Superintendent Paul Griffiths and John Apter gave evidence.

--- Later in debate ---

[The Chair]

Minister Philp?

[Chris Philp]

Q Thank you. Based on your response to Alex Cunningham’s question, you may not be able to answer this, but I wanted to double check. Do you have any view on the proposals to reform out-of-court disposals, in particular to simplify the current six kinds of caution down to two kinds of caution, which has been trialled in three force areas over the past few years?

Chief Superintendent Griffiths: You are right to clarify that. Unfortunately, we have not been consulted on that particular aspect. If I can provide written evidence, we will explore a response and get back to you.

[Chris Philp]

Q Thank you. In that case, my only other question relates to the proposal to double the sentence for the assault of an emergency worker from 12 months to 24 months. Do you welcome that, and do you think it would have a deterrent effect on people who might decide to try to assault your officers in the course of their duties?

John Apter: Absolutely, the risk of a custodial sentence would be a meaningful deterrent, as well as everything else. As I said, it is about the training and equipment that officers and staff have. But I go back to my earlier point: the increase in sentencing will mean nothing if the sentencing guidelines do not allow the courts to use those powers effectively. Far too often, my colleagues feel that the wider criminal justice system lets them down. We need to address that, as well as increase sentences. Yes, I believe that it would be a deterrent.

Chief Superintendent Griffiths: It is very much welcome and supported. There is a hope that it will be a deterrent. We recognise that any sort of assault on emergency workers has a complex and dynamic number of factors that may cause that situation to arise. We must do everything in our power to eliminate or minimise every aspect of those factors. Hopefully, it will have a deterrent effect, and will send a very strong message from Parliament to emergency workers to say, “You are valued for what you do. We support you, and you should not have that sort of risk when trying to carry out your duties.” We will review the situation over time, to see what the deterrent effect is, but we are grateful for the support that Parliament proposes.

[Chris Philp]

Thank you. It may be worth you engaging with the Sentencing Council once the legislation passes, to ensure the sentencing guidelines reflect the seriousness of the offence, and that the sentences in practice reflect Parliament’s intention.

[The Chair]

Now is a good time to draw this session to a close. I thank the witnesses for their evidence this morning.

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

Chris Philp Excerpts

Committee stage
Tuesday 18th May 2021 Public Bill Committees

[The Chair]

I am afraid I have to strike a balance and I have to switch to the Minister, for his questions. I am sorry.

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

Q Thank you, Mr McCabe. To pick up on the questions asked by the hon. Member for Stockton North (Alex Cunningham) about minimum sentences, we have minimum sentences in very rare circumstances at present. Can you give the Committee your views about the pros and cons or the considerations we should have in mind if any proposals are made to increase the range of circumstances or offences to which minimum sentences might be applied?

Adrian Crossley: So that I understand the question and I answer it properly, are you asking what merits we would need to see in order for there to be an expansion of minimum tariffs in sentencing? Is that what you mean?

[Chris Philp]

Or the risks. What are your views about the principles of the possibility?

Adrian Crossley: My own view is that judicial discretion should be king. I have not done any huge research into this, but in my view and from my practice, sentencing guidelines have become very prescriptive and they almost railroad judges into decisions. Judges always have parameters to work within, but what is before the court is often something that is necessarily unique. Minimum sentencing can shackle decision makers who are acutely aware of the facts in front of them.

The only benefit I see is in cases where there are overwhelming public interest concerns that mean that a minimum tariff would adequately address a specific mischief and would undo it. If I were to see that, I would regard that as a pro for minimum sentences. I would need to see an evidence base that that would achieve that.

Phil Bowen: I agree with what Adrian says. In general, a lot of the evidence from, for example, the United States on mandatory minimums is not encouraging, but I see an argument for Parliament identifying particular crimes of concern and putting those in place. We should be clear that the deterrent effect of that is likely to be pretty mixed. The evidence is pretty mixed about whether that kind of thing really does deter future crime, but I can see the public need for the Government to be seen to respond to public desires around particular signal crimes. That is why, although I do not reject them out of hand, I agree entirely with Adrian that judicial discretion is extraordinarily important because judges will know the facts of the case much better than the press or the public watching on.

[Chris Philp]

Q In relation to the proposals to make curfews potentially longer and more flexible, do you think that will make community sentences potentially more effective and might, furthermore, potentially reduce reoffending?

Phil Bowen: I think the emphasis in the Bill and the White Paper on flexibility around the use of electronic monitoring is the strongest part of the proposals. What the Ministry seems to be doing, which I think is right, is to encourage probation officer discretion and the flexible use of electronic monitoring powers, both to control people where there is need for further control, and to loosen up things where they are doing well. Part of the problem with electronic monitoring to date has been far too rigid sets of curfews without the ability for probation officers to vary them while people are on community sentences. I certainly support that.

In terms of providing for longer periods of electronic monitoring, I can see cases where that may well be useful. The only note of caution that I would suggest to the Committee is that the evidence base suggests that for younger people—in particular, young adults who live at home and people assessed as low risk—longer periods of electronic location monitoring can have a backfire effect. In other words, it can lead to increases in reoffending. All that really means is that the Bill provides the powers that it does, and it is then the job of the probation service to use those powers as flexibly as possible and in line with the evidence.

[Chris Philp]

Thank you. I was going to ask about problem-solving courts, but I think that was covered adequately in earlier questions. I think Minister Atkins has some questions.

[The Parliamentary Under-Secretary of State for the Home Department (Victoria Atkins)]

Q This is a quick question for Mr Crossley. The CSJ has obviously done a lot of work over the years on gang crime and on the many levers we can try to use to address it. What is the CSJ’s view of serious violence reduction orders, namely the piloting of stop-and-search orders for known—in other words, convicted—knife offenders aged over 18?

Adrian Crossley: This policy actually has its origins in the CSJ. We are obviously very supportive of the serious violence reduction order. Just for clarity, and so I can answer that more fully, this is a post-conviction order. We regard it as being part of the wider system. We do not regard it as a stand-alone solution to knife crime in our country.

We see a very significant increase, not just in possession of weapon offences, but of violent offences perpetrated with the use of a weapon. What is clear to us is that we need to do something about that which is robust enough to challenge the mindset of someone leaving their home with a weapon. We draw from the group violence intervention models piloted in Boston in the US under Operation Ceasefire, which create a sort of pull-push effect. We really want to deter people from being able to leave the home feeling that they are safe walking around with a weapon. They should know that they are much more likely to attract police attention if they are on these orders. At the same time, in the sentencing court, we would hope that the order would be able to include other, positive provisions—perhaps even a knife crime behaviour order. Real intervention, engaging young people and pulling them away from that sort of offending can also have a pull effect away from that kind of offence.

I should say that currently, as it is being piloted, it is only for adults. Our view is that knife possession is pervasive across a number of age groups: it is particularly concerning when young people are carrying knives. We would like to see this scheme really being rolled out, so that we can intervene early when people are younger, to see that we do everything we can to take knives off the street and keep people safer.

--- Later in debate ---

[Victoria Atkins]

Thank you very much indeed.

[Chris Philp]

Q May I start by asking Matt Parr if you have any views on the proposals for out-of-court disposals, in particular to simplify the current number of out-of-court disposals, cautions and so on from six down to two, following the pilot that took place in three force areas?

Matt Parr: I am really sorry. I have not looked at that. I cannot give you an answer, I am afraid.

[Chris Philp]

Q Not to worry; no problem at all.

Let me turn to Jonathan, if I may, going back to clause 108, which Alex Cunningham was asking about. This is in relation to prisoners sentenced for non-terrorist offences who are deemed to become high risk in the course of their sentence. To clarify, is your understanding of the clause the same as mine—that the Secretary of State does not have the power to unilaterally ask for their prolonged incarceration, but instead the Secretary of State simply has a power to refer the prisoner to the Parole Board, which will then make the assessment of dangerousness? It is the Parole Board that makes the decision, not the Secretary of State; the Secretary of State simply refers. Is that your understanding as well?

Jonathan Hall QC: Yes. I have it in front of me. I think the point that Mr Cunningham was making is that it is the Secretary of State who refers it, but you are right: it is the Secretary of State who refers it, but ultimately it is the Parole Board that decides.

[Chris Philp]

Q I think Mr Cunningham said that the Secretary of State took the decision, so I was simply seeking to clarify that the Secretary of State refers but the Parole Board decides. Mr Cunningham also made a point about the prospect of longer incarceration, and he quoted the Prison Reform Trust. Jonathan, can you confirm that no one can stay in prison for longer than the sentence handed down by the judge? What this is simply doing is potentially removing the release point, and removing the release point within a sentence— a sentence handed down by the judge that cannot be exceeded—is considered lawful and compatible with ECHR and other rights. Indeed, we have done it before, have we not, in changing the automatic release provisions in previous legislation?

Jonathan Hall QC: Yes, that is right. When the Terrorist Offenders (Restriction of Early Release) Act 2020—the emergency legislation that came in after the attack at Fishmongers’ Hall—transformed people from automatic release prisoners to people who would have to apply to the Parole Board at the two-thirds point, it had an effect on people who are currently serving. That was challenged in the courts by one of the affected prisoners, and the High Court concluded that it was consistent with article 7.

[Chris Philp]

Q Exactly, and this would have a similar effect. I was the Bill Minister for that Bill, and I was delighted that the High Court found our legislation to be lawful and compatible with human rights.

The final point that Mr Cunningham raised was in relation to the potential for a cliff edge if somebody serves all of their sentence in prison and is not released early. He referred to the possibility of a cliff edge, which exists in various other contexts that you have referred to already. Am I right in saying that if the Government, the security services or the authorities are concerned about the risk that a particular prisoner might pose following release if they were released without licence conditions because they had served all of the sentence, it would be open to the security services, acting through the Secretary of State for the Home Department, to apply for a TPIM if they felt the threshold was met? That would be one option available if they wanted to manage risk, accepting that TPIMs are rarely used.

Jonathan Hall QC: You anticipated what I was going to say. Yes, that is available, but TPIMs are very resource-intensive, and they are very rarely used for that reason.

[Chris Philp]

That is an option. That is extremely helpful clarification.

[The Chair]

Does anyone else have any questions?

[Alex Cunningham]

I misunderstood the line about the role of the Parole Board. I was concerned about what happens beyond the completion of the sentence. As the Minister says, the TPIM is used only in extremely rare circumstances, and it was unclear when that would apply and when it would not apply. Again, my concern is the cliff edge—somebody being released into the community without any licence conditions or further restrictions on their movements.

[Chris Philp]

Q To clarify, the serving of the full sentence is a matter for the Parole Board. It is open to the Parole Board to choose to release the prisoner after the automatic release point but before the end of the sentence, in which case there would be a period on licence between the release point and the end of the sentence. It does not follow automatically that they would be released with no licence period following, although it is possible.

[Alex Cunningham]

rose—

--- Later in debate ---

[Chris Philp]

Q I will not need all that time, because most of the points that I was going to raise have been helpfully raised already by colleagues. To return to the question of secure schools, I think you expressed in your answers at the beginning support for the proposed introduction of secured schools and gave a bit of flavour as to why you support them. Can you talk about the benefits that may be delivered by increasing the range of organisations that can be brought into the business of providing these services with the change being contemplated here?

Stephanie Roberts-Bibby: We would see the benefits very much related to the skills, experience and expertise that multi-academy trusts could bring into a secure school setting. As you may know, the secure estate is split into three different sections: secure training centres, secure children’s homes and young offenders institutions. The custodial element of those organisations is very strong and probably strongest in the YOIs and the STCs. The introduction of a very different model that accounts for children’s needs will not mean that they will not be secure; it will mean that they have a focus on education, mental health, and a trauma-informed approach to working with children who have complex needs, which is very much needed.

[Chris Philp]

Q Do you have any particular observations on measures we might consider to reduce offending, either in the Bill or, indeed, beyond it?

Stephanie Roberts-Bibby: Gosh. We could probably provide you with a significant amount of evidence on that and I would very much welcome the opportunity to do that in writing to the Committee.

We would suggest coming from the perspective of the child first and using the evidence base that has been developed recently, which focuses on children, their personal and social identity and their strengths, rather than being deficit-based. The evidence, which equally applies to adults, is that if you look for good and build on good, much more is achieved than if you tell people that they are no use and no good and cannot contribute to society.

We know that with children, the earlier we intervene, the better—early intervention and prevention, and targeting services upstream. That is a challenge for youth offending teams at the moment. They have statutory caseloads and trying to balance intervening earlier is really difficult. Some local authorities manage to do that better than others. There is a massive evidence base and we can share the evidence after the Committee today.

[Chris Philp]

Q My final question is on the remand review. What is the Youth Justice Board able to do to support the remand review and its subsequent implementation?

Stephanie Roberts-Bibby: We have been working really closely with the Ministry of Justice on the remand review. We are very keen to understand the data better and to have a look at the trends across the country. One of the things we would really welcome as, dare I say, an amendment to the Bill is for there to be a decision why bail is and is not granted. There is still a lack of evidence on what needs to change for more children to remain in the community, and we want to avoid perpetuating cycles of evidence.

You asked about what more we could do around the remand review. There is certainly something more we could do around trying to knit the system together better, through our heads of regions constantly having discussions with the sector around remand. We are doing quite a lot of work at the moment on developing alternative models for accommodation. We are working across London. We are investing in a pathfinder project to try to develop a different model for children, to prevent them being taken into the secure estate on remand.

[Chris Philp]

I think that covers everything I wanted to ask. Thank you for the work you are doing.

[The Chair]

If you do wish to furnish the Committee with further written evidence to support your comments, that would be most welcome. I think Mr Cunningham had a further question.

--- Later in debate ---

[Chris Philp]

Q I have one or two brief points. Mr Sweeting, you discussed remote hearings already; have you or your members seen during the pandemic evidence that using video and remote hearings is any more convenient for participants, both advocates and witnesses, or that the proceedings are any more efficient than they would ordinarily be?

Derek Sweeting QC: Two questions. Is it more convenient? Certainly, during the pandemic it has been important to have a method of holding hearings when we have to socially distance. Under the circumstances of the pandemic, it was vital. Remote hearings have enabled the family jurisdiction in particular to keep on working from the word go—it never stopped. Using technology in those circumstances in remote hearings was extremely helpful. It was certainly convenient during the pandemic.

Is it convenient for everyone? During the pandemic itself, we had some opposing views. Counsel certainly found it convenient, but one or two participants in family proceedings publicly said that they felt detachment from the proceeding. We have to recognise that there are reasons for being cautious about making the assumption that if it is convenient for legal professionals and judges, it is also necessarily a good experience for users. Certainly, there are whole categories of users for whom, if they cannot get to court or if they have mobility problems, the ability to have a hearing remotely is going to be valuable. Of course, we have been in a big laboratory, and we have tested a lot of these things in a way that we that we would not have been able to do in the decades before the pandemic. We need to take forward the best of remote and carry on using it.

Are there disadvantages? Yes, I think there are. There are experiences that we have all heard about, which are salutary and should make us be cautious about just assuming that we can always do things as well if we are doing them remotely.

[Chris Philp]

Q Thank you. You touched in one of your answers on the question of sentencing powers where a memorial—for example, a war memorial—might be desecrated, and you made some observations about the potential sentence length. It is the case, is it not, that sentences are always a matter of judicial discretion. Notwithstanding what the maximum may be, it will always be for the judge to decide what the appropriate sentence is, given the facts of a particular case. Is not the overriding consideration here that we are simply giving judges more discretion where a memorial may have a more symbolic value that goes beyond mere monetary value, and that we are simply recognising that in the statute?

Derek Sweeting QC: I am not sure that is right. The point that I was making is that the proposed amendment is to the mode of trial for a limited class of offences of criminal damage. That is the effect of the amendment. It removes the power for an offence involving a memorial to be tried in the magistrates court, however small the value of any damage. That was the point I was making earlier. I was really being asked whether that is a proportionate measure, and the point I was making is that there are some offences involving memorials where one would have thought that the magistrates’ powers are perfectly adequate, and it is not proportionate to require that matter to go to the Crown court.

[Chris Philp]

Q Okay. Although of course, as I say, the magistrate has limited sentencing powers, and there might be some cases, might there not, where the desecration may be of a sufficiently serious nature that the magistrate’s maximum sentencing power of six months may be inadequate. On some occasions, therefore—not in every case necessarily—the increased sentencing power of the Crown court might be appropriate?

Derek Sweeting QC: Well, there might be, but equally there might be cases where it is wholly unnecessary to go to the Crown court. Since the definition of “memorial” extends to moveable items, removing a bunch of flowers from a memorial amounts to the offence. It is difficult to see why that merits a trip to the Crown court. It is well within the magistrate’s existing sentencing.

[Chris Philp]

Q Is your understanding of the change that it makes it an either-way offence? Is it your understanding that it would be compelled to be held in the Crown court, as an indictable-only offence would be, or that it could be heard in either, as in an either way offence?

Derek Sweeting QC: My understanding that a mode of trial change is being contemplated under part 2.

[Chris Philp]

Q My final question relates, again, to judicial discretion. I am not talking about any particular offence; I am just asking in general terms. What are your general views about minimum sentences and how they interact with judicial discretion?

Derek Sweeting QC: There are obviously circumstances in which minimum sentences can be used. It is a matter for Parliament. You have to reflect on public disquiet and the need to make sure there is a sentencing regime that reflects the seriousness of offences. The general position is that if you have minimum mandatory sentences, you inevitably tie the hands of the judge to some extent. If you carry on extending that, you are making potentially significant inroads into judicial discretion. The lesson of sentencing is that cases generally need individual sentences because there are very complex differences between them. You were just making the point about judges having discretion to sentence according to the gravity and nature of the crime.

[Chris Philp]

Thank you, Mr Sweeting. I have no further questions.

[The Chair]

Does anyone else have any further questions? I cannot see anyone. In that case, Mr Sweeting, thank you very much for your evidence to the Committee. I thank all witnesses who gave evidence today to the Committee. That brings us to the end of our oral evidence session for today. The Committee will meet again on Thursday to take further evidence. We will meet in this room at 11.30 am.

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

Immigration

Chris Philp Excerpts

Wednesday 28th April 2021 Commons Chamber

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

I thank the hon. Member for Halifax (Holly Lynch) for her speech. As she said, this matter was debated just yesterday in a Westminster Hall debate that was attended by one colleague.

Let me start by reiterating the Government’s commitment to tackling modern slavery. The UK has led the world in protecting victims of this heinous crime. We will continue to support those who have suffered intolerable abuse at the hands of criminals and traffickers, and we will do everything in our power to ensure that perpetrators face justice. In a further demonstration of our commitment to supporting victims of modern slavery, the new modern slavery victim care contract went live in January this year, with an estimated whole-life cost of £379 million over its five-year lifetime. It will deliver a better service that it is needs-based and will do even more to look after individual victims.

It is worth mentioning that last year there were about 10,000 claims by victims of modern slavery and we made about 10,000 positive reasonable grounds decisions. That is, I think, one of the highest numbers, if not the highest, in Europe, and it is many times higher than in comparably sized European countries. So there is no question but that the United Kingdom leads Europe in its work on protecting victims of modern slavery. We have also embarked on an ambitious national referral mechanism transformation programme to do even more work than we are doing already. We have, moreover, launched a review of the 2014 modern slavery strategy that will allow us to build further on the progress made.

Although our commitment to cracking down on these appalling crimes remains undiminished, being recognised as a potential victim of modern slavery does not and should not automatically result in being granted immigration status in the UK or immunity from immigration proceedings. There may be potential victims or victims of modern slavery who have no lawful basis to remain in the UK, some of whom will be dangerous foreign national offenders, and about whom we are faced with decisions about using detention lawfully as a means of securing their removal. That is especially true when other options, including voluntary return, have been exhausted. Where we are faced with these decisions it is important that they are made in a way that is consistent, fair and balanced.

The shadow Minister mentioned detention, and it is worth saying that the use of detention for immigration purposes has been reduced significantly. The number of people in immigration detention in December 2019, before the pandemic started, was about half the level reported in September 2017. Moreover, of those entering immigration detention in 2019, I believe, from memory, that 39% spent only a week and about 75% spent less than 28 days in immigration detention. It is used sparingly and only where necessary to deliver our immigration rules properly.

The rules we are discussing today rectify an anomaly in the existing policy to bring detention decisions for potential victims of modern slavery within the scope of the adults at risk policy. That is the policy we use to make detention decisions for vulnerable people, including those with serious physical or mental health disabilities. At present, the adults at risk policy requires detention decisions for potential victims of modern slavery to be made with reference to separate Modern Slavery Act 2015 statutory guidance. That guidance does not steer decision makers in how to balance a person’s vulnerability against other considerations when making detention decisions, but makes reference only to public order, as the shadow Minister said.

We believe that the adults at risk policy, which already caters to all kinds of other very serious vulnerabilities, is the appropriate framework for detention decisions for potential victims of modern slavery. It allows for a nuanced and balanced assessment of detention decisions to be made, which the current policy does not allow. It also supports our desire for a clear and consistent approach to safeguarding in immigration detention decision making and will enable decisions for potential victims to be made in line with those for other categories of vulnerable individuals. To be absolutely clear, the vulnerability and risks associated with potential victims of modern slavery will categorically continue to be fully accounted for and fully considered.

Let me be clear: these regulations will not weaken the protections afforded to potential victims of modern slavery. The adults at risk immigration detention policy is well-established—it has been in place for at least five years. It enables officials to identify vulnerable adults and make decisions about the appropriateness of their detention, balancing all relevant considerations. The adults at risk policy strengthens the presumption in immigration policy that a person will not be detained where they may be particularly vulnerable to harm in detention.

Moreover, we do recognise and will continue to recognise the specific protections afforded to those in receipt of a positive reasonable grounds decision, in accordance with the European convention on action against trafficking in human beings. All those protections will, of course, be respected, and I can also assure the House that caseworkers and other Home Office staff will receive the appropriate guidance and training so that they are able to properly take into account those special protections for potential victims of modern slavery. We fully accept that those specific considerations exist. We recognise that in some circumstances an individual’s history may have been influenced by their trafficking or their previous modern slavery experiences, and that will most certainly be reflected in guidance and in subsequent decision making. Let me also be clear that every decision is taken individually, on a case by case basis, and there is a presumption against detention where there is particular vulnerability to harm. Those two things should give the House a great deal of reassurance on these points.

In conclusion, as I have set out, modern slavery is a despicable crime. The UK is leading Europe in identifying and protecting victims and going after perpetrators. The changes we are contemplating today make use of a well-established, effective policy for protecting vulnerable people and enable a rounded and balanced decision to be taken in these difficult cases.

--- Later in debate ---

[Chris Philp]

I thank all the Members who have contributed to this discussion. I particularly thank the hon. Member for Strangford (Jim Shannon) for his well-considered and thoughtful comments on the issues we are debating. I thank him for his remarks about the resettlement scheme, from which his constituents have benefited. That demonstrates the Government’s unshakeable commitment to protecting vulnerable people around the world.

The resettlement programme to which the hon. Gentleman referred has resettled 25,000 people over the past six years, which is more than any other European country. That is clear evidence of the Government’s compassionate commitment to those in genuine need. He referenced in particular persecuted Christians, of whom there are many around the world. In fact, following a speech that I heard him make in a debate in the Chamber a year or so ago, he will notice that the new plan for immigration expressly references persecuted Christians around the world and the need to offer them sanctuary here in the United Kingdom. Where Shannon led the way, the rest of the United Kingdom will, I hope, follow.

The hon. Gentleman asked for an assurance that the resettlement programme will continue. Yes, it will. In fact, it is already continuing. We recommenced a few weeks ago, so I can give him the assurance for which he asked. On the question of indefinite detention, we do not detain people indefinitely for immigration purposes. About 75% of people in immigration detention are there for 28 days or less. It is used as a last resort. The Hardial Singh principles strictly set out the circumstances in which it can be used, and at any time anyone in detention can apply for immigration bail.

Most importantly of all, it is categorically not true and is not the case that we will be turning our backs on victims of modern slavery. On the contrary, we have done more than any Government in history to look after them. Indeed, we are doing more than any Government in Europe to protect and look after victims of modern slavery. The change that we are discussing today does not alter that fact. I can assure the House that decision makers will continue to take careful account of vulnerability, risk and the experience of modern slavery victims—or potential victims—when making these decisions. That will be fully taken into account, and balanced with other considerations. Victims will be respected, treated carefully and looked after, as they have been in this country for many years. We have a proud record on this topic, and that will continue for many decades to come.

Immigration Detention: Victims of Trafficking

Chris Philp Excerpts

Tuesday 27th April 2021 Westminster Hall

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

It is a great pleasure to serve under your chairmanship, Mrs Murray; I think for the first time, but I am confident not for the last.

I thank my hon. Friend the Member for North East Bedfordshire (Richard Fuller) for raising the matter in this afternoon’s debate. As he said, we will have the pleasure of discussing it twice in two days. He is an assiduous campaigner on these issues and I am very pleased to have the opportunity to discuss them with him today, and, I am sure, on future occasions as well.

As a starting point, it is important to understand that the United Kingdom’s commitment to looking after victims or even potential victims of modern slavery is resolute. We enacted the Modern Slavery Act 2015, which has some very substantial protections for victims of modern slavery. We launched a modern slavery strategy back in 2014 and we are assiduous as a country in upholding our obligations under the ECAT treaty—the Council of Europe convention on action against trafficking in human beings—to which my hon. Friend referred. Indeed, many more modern slavery claims are made and accepted in the UK than in comparable European countries; I think that we had around 10,000 last year, which was many times higher than in countries such as France and Germany. I think our record on identifying and protecting victims of modern slavery is second to none across Europe, which we can all be extremely proud of.

However, we should also be clear that someone being recognised as a victim of modern slavery does not and should not automatically result in their being given immigration status in the UK, or in their being exempted from immigration proceedings. There are protections granted by the modern slavery provisions. My hon. Friend mentioned the reflection and recovery period, which is 45 days. Of course, if there is a recovery need that can only be met by the person remaining, that is obviously respected as well. However, it does not follow that every single potential victim of modern slavery should be exempted from immigration proceedings or indeed from detention.

Therefore, it is very important that we have a proper way of weighing up the various considerations that come before decision makers: on the one hand, there are questions of vulnerability, or potential vulnerability; and on the other hand, there is the need to operate a proper immigration system. That is an important balance to strike. Both those things are important; we are not minimising the importance of either one of them.

It is worth observing that the reasonable grounds threshold for a modern slavery decision is, by design, extremely low. At the moment, it is set out as “suspects but cannot prove”, which is an extremely low threshold. We are looking to make adjustments to that, as set out in the policy statement a few weeks ago, consistent, of course, with our ECAT treaty obligations. However, once the reasonable grounds decision is made, that does not mean that the person involved is a victim of modern slavery. It means that there are reasons to suspect, but without proof, that they might be a victim of modern slavery, which is extremely important to bear in mind.

There has been some evidence recently—I am talking about the last 12 months in particular—that for some cohorts in particular, including some foreign national offenders, it appears that modern slavery claims are increasingly being used as a means of disrupting immigration proceedings. We need to be mindful of that, and mindful that we should do everything to protect genuine victims of modern slavery, many of whom will have suffered appalling trauma and mistreatment. It is in the spirit of achieving that balance that the changes we are discussing today and will discuss again tomorrow are being made.

The change that my hon. Friend outlined so eloquently, enshrined in the statutory instrument laid on 25 February this year and coming into force, if passed, in a few weeks’ time, to make the release decision in relation to people with a positive reasonable grounds decision if they might be a victim of modern slavery is inside the ambit of the existing adults at risk policy. That is not to say that their potential vulnerability will be ignored, but the issue will be considered in the round and a balancing exercise will be performed, as it is with other forms of vulnerability in the existing scope of the adults at risk policy to make sure that everything is being properly accounted for in the round.

Having done that exercise, release decisions might, and in many cases will, still be made. An adults at risk policy, as my hon. Friend said, was introduced in 2016. It has had time to bed in and is being continuously improved upon, but it has a well-defined grading scale—level 1, level 2, level 3—and the more serious the evidence of vulnerability or potential harm, some of which my hon. Friend laid out in his speech, the higher the balancing factors have to be in order not to release.

Viewing the matter in the round and considering everything is an appropriate thing to do. It is a balancing exercise that we are trying to achieve. The caseworker guidance that will be published in due course will address the specific situation of potential victims of modern slavery. My hon. Friend laid out some of the unique circumstances associated with them, and the caseworker guidance will take into account the particular vulnerabilities that my hon. Friend drew attention to in his speech.

I hope that gives some reassurance about the approach that will be taken. The detention decision making process will of course include an assessment of the individual’s recovery needs. That will ensure that detention is maintained where the balancing criteria are met, and also where those needs can be provided from within detention. If those needs cannot be met from within detention, that would obviously argue very strongly and persuasively, probably decisively, in favour of a release decision being made.

It is also worth saying by way of context—I know my hon. Friend has a wider interest in detention; we have discussed it on many occasions—that detention is used sparingly. At any one time, 95% of people who might be eligible for detention are in fact in the community. The numbers being detained are relatively small by historical standards. If I take the figure from 31 December 2019, before coronavirus, because coronavirus has caused the number to go down even further, there were 1,637 people in immigration detention, which is a pretty small number when we measure that against the number of people who probably do not have the right to be in the country.

The 1,637 number approximately halved in the two-year period preceding. From 30 September 2017 to 31 December 2019, the number of people in immigration detention roughly halved. The vast majority of people—we have debated this previously—are in detention for relatively short periods of time. Some 74% are detained for 28 days or less, so detention is not being used on a widespread, indiscriminate basis, but it is an essential component of running a proper immigration system. Where someone does not have the right to be here, or where they have committed a serious criminal offence and they are a foreign national, it is right that we take steps to remove them. Without having immigration detention available, it is extremely difficult to do that, so it is an important thing to be able to do.

As I have set out, we accept that modern slavery is a truly despicable crime. We take our responsibility to identify victims very seriously. We also take our responsibilities in using immigration detention very seriously as well. Our focus as we take forward these changes will be to make sure that the right balance is struck and that potential victims with genuine vulnerabilities are protected. We are determined not only to protect those vulnerable individuals, but to bring the perpetrators of modern slavery to justice. It is in that spirit that we have introduced the changes that will be debated in the main Chamber tomorrow.

[Richard Fuller]

I have a very small point. Will the Minister respond to specific questions that I asked and commit to reply in writing?

[Chris Philp]

Yes, I am happy to give that commitment.

Question put and agreed to.

Prevention and Suppression of Terrorism

Chris Philp Excerpts

Wednesday 21st April 2021 Commons Chamber

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

I beg to move,

That the draft Terrorism Act 2000 (Proscribed Organisations) (Amendment) Order 2021, which was laid before this House on 19 April, be approved.

This Government are committed to taking all necessary steps to protect the people of this country. Tackling terrorism in all its guises is a key element of that mission. The threat level in the UK, which is set by the independent joint terrorism analysis centre, remains at substantial. That means that a terrorist attack in our country is likely.

[Bob Stewart (Beckenham) (Con)]

Can the Minister give the figures for how many terrorist attacks have been thwarted by our security services? I realise that he may not be able to do so.

[Chris Philp]

I can confirm to my right hon. Friend that our security services and our counter-terrorism police work tirelessly to foil terror plots. In fact, in the past four years since 2017, 28 such terror plots have been successfully thwarted. I want to take this opportunity to pay tribute to our security services, our counter-terrorism police and all those who work in the law enforcement and intelligence community for the work they do, often at risk to themselves, to keep us, our constituents and our fellow citizens safe on a daily basis.

The constantly evolving nature of terrorism means that we continuously have to consider whether new action is necessary to ensure that our response is adapted to the threat picture. The danger posed by terrorist organisations varies from one group to another. There are those that recruit, radicalise, promote and encourage terrorism, as well as those that prepare and commit terrible acts of violence against innocent members of the public. We have a duty to tackle all those groups. While we can never entirely eliminate the threat from terrorism, we can minimise the danger that it poses and keep the public safe.

In that spirit, 76 international terrorist organisations are currently proscribed under the Terrorism Act 2000. Thanks to the dedication, courage and skill of our counter-terrorism police and our security and intelligence services, most of those groups have never carried out a successful attack on UK soil. Proscription is a powerful tool for degrading terrorist organisations, and I will explain the impact that it can have shortly. The group that we now propose to add to the list of terrorist organisations, by amending schedule 2 of the Terrorism Act 2000, is the Atomwaffen Division, or AWD, and its alias, the National Socialist Order, or NSO. The AWD is a predominantly US-based white supremacist group that was active under that guise between 2015 and 2020. The NSO is the alias of the AWD, and it has claimed to be the AWD’s successor group. It remains active to this day. The group’s actions, which seek to divide communities, stir up hatred and incite terrorism, are entirely contrary to the interests of our nation.

Under section 3 of the Terrorism Act 2000, the Home Secretary has the power to proscribe an organisation if she believes that it is currently concerned in terrorism. If the statutory test is met, the Home Secretary may then exercise her discretion to proscribe that organisation. The Home Secretary considers a number of factors in considering whether to exercise that discretion, including the nature and scale of the organisation’s activities and the need to support other members of the international community in tackling terrorism.

The effect of proscription is to outlaw a listed organisation and ensure that it is unable to operate in the United Kingdom. It is a criminal offence for a person to belong to, support or arrange a meeting in support of a proscribed organisation. It is a criminal offence to wear clothing or carry articles in public that arouse reasonable suspicion that an individual is a member of that organisation. The penalties for proscription offences can be up to 10 years in prison or an unlimited fine, and the Counter-Terrorism and Sentencing Bill, which I believe is due to receive Royal Assent next week, includes provisions to increase the penalty for certain proscription offences to 14 years.

Proscription is designed to crack down on a group’s ability to operate, through various means including enabling prosecution, supporting the takedown of online material, underpinning immigration-related disruptions—for example, excluding members of the group from United Kingdom—and making it possible to seize cash. Given the wide-ranging impact of this power, the Home Secretary exercises it only after thoroughly reviewing the available evidence on any organisation, whether that is open-source material, intelligence material or advice that reflects consultation across Government, the intelligence agencies, law enforcement and international partners. Decisions are taken with great care and consideration, and it is appropriate that such orders must be approved by both Houses of Parliament.

Having carefully considered the evidence, the Home Secretary believes that the AWD, including through the activities of its alias, the NSO, is concerned in terrorism and that the discretionary factors weigh in favour of proscription. Although I am unable to comment on specific intelligence, I can provide the House with a summary of the group’s activities. It celebrates a collection of noxious essays that advocate the use of violence to bring about a fascist, white ethno-state by initiating the collapse of modern society via an ideology known as accelerationism. AWD’s online propaganda has encouraged and promoted terrorist acts, and this content remains influential among accelerationist terrorist groups.

We know that AWD has inspired, at least in part, several loosely affiliated franchise groups abroad, including Feuerkrieg Division, which was proscribed in July last year. In March 2020, AWD claimed that it had disbanded, following pressure from US law enforcement agencies, but in July 2020, NSO announced itself online as AWD’s successor, adhering to the same abhorrent ideology. We therefore believe that NSO should be covered as an alias organisation of AWD. Our strategy to combat terrorism looks at the full spectrum of activity. It is absolutely right that this includes confronting square on the threats from groups who call for violence and mass murder and who unlawfully glorify horrific terrorist acts so that they are prevented from continuing to stir up hatred and incite or carry out terrorism.

When groups without a physical presence in the UK are proscribed, particularly when looking at groups such as AWD, which have an established online presence, it is important to consider the impact that proscription has. By proscribing supremacist, accelerationist terrorist groups such as these, we underline our commitment to ensuring that the UK is a hostile environment for individuals involved in terrorist activity. Our objective is to ensure that there are no safe spaces for any of these terrorist groups or their ideologies, in which they are able to promote or share their extreme views. We are committed to preventing that from happening, so in proscribing AWD and NSO, we send a clear signal that dissemination of the group’s online propaganda is unacceptable.

The Home Office continues to work closely with law enforcement, our international partners and tech companies, including through the Global Internet Forum to Counter Terrorism, to collaboratively tackle the spread of terrorism content online. We know that the proscription of groups helps tech companies to better tackle terrorist materials on their platforms. We believe that there is a strong case for the Government to proscribe AWD and to list NSO as an alias. It will build on the robust action that the Government have already been taking by proscribing National Action and its aliases, Sonnenkrieg Division and Feuerkrieg Division.

Our message is clear: we will always take every possible action to counter the threat from those who hate the values we cherish. The safety and security of the public is our No. 1 priority and I therefore commend this order to the House.

--- Later in debate ---

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

I thank Members from across the House for the constructive tone they have taken in contributing to this debate. I will pick up on one or two of the points raised before concluding and making way for the Government’s newest Minister, my hon. Friend the Member for Aldershot (Leo Docherty), who I see is preparing to make his well-deserved debut on the Front Bench.

The shadow Minister asked about the speed at which this process unfolds, and various other Members, including the hon. Member for Barnsley East (Stephanie Peacock), asked about other groups that might be under consideration. Given how significant these powers are, and given that someone who is a member of a proscribed organisation or conducts activities in association with it is liable for a prison sentence of up to 10 years—soon to be increased to 14 years—it is right that such matters are considered in a thoughtful and careful way, and not in haste. I assure the shadow Minister, and other Members, that where organisations are suspected of being involved in terrorist activities of this nature, the Government, the Home Office and the intelligence community will move as quickly as they can. I will certainly pass on the remarks I have heard from various Members this afternoon to my colleague the Minister for Security, to ensure that those points are raised.

The shadow Minister asked about resources for counter-terrorism policing, and I am pleased to remind the House that last year there was a £90 million—10%—increase in the resources made available for that, increasing expenditure to £900 million a year. Counter-terrorism policing is categorically getting the funding it needs to keep us safe.

[Jim Shannon]

Can the Minister confirm that some of those moneys are being allocated to Northern Ireland where terrorism is a real threat?

[Chris Philp]

I confirm to the hon. Gentleman that Northern Ireland gets its fair share of counter-terrorism police funding. As we know, that issue has been so serious and so acute over many years.

The shadow Minister asked about ensuring we take action against groups that appear in new formats, or groups that discard their old name and organisation but start up as the same organisation in substance, but in a different guise. That is why the concept of aliases is so important. Indeed, we are using that concept today as we formally recognise NSO as effectively an alias of AWD. That is the mechanism by which we ensure that groups cannot just cast off one identity and assume another.

The hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald) asked about international discussions. I obviously will not comment on the detail of those, because they touch on security and intelligence issues, but I can confirm that we are in very frequent and close discussion with international partners—particularly Five Eyes countries, but much more widely than that as well—to make sure that we are co-operating and exchanging information on these terrorist groups, to protect our citizens and other citizens from the serious threat that they pose.

The hon. Member asked about follow-up. I agree that proscription is just the beginning, not the end, of the process. The intelligence community and counter-terrorism police continue to monitor and follow up on these organisations. It is for that reason that, since 2001, 49 convictions have been secured in connection with proscription offences—an organisation has been proscribed, and a conviction has later been secured in connection with that.

The hon. Member also asked how these decisions can be scrutinised. There is an appeal process. If an organisation is the subject of a proscription order, it is able at any time—immediately or later—to exercise the right of appeal to a body called the Proscribed Organisations Appeal Commission, which is judicial. An organisation can put its case to the judges there. Evidence can be heard in secret, if necessary, and that appellate body can either overturn the Home Secretary’s decision or refer a matter back to the Home Secretary. So there is an independent body to which appeals can be made.

Finally, the hon. Member for Warrington North (Charlotte Nichols) asked about the damage that can be done by hateful ideologies being spread online. The Government published their response to the White Paper on online harms last December and have confirmed their intention this calendar year to bring forward new measures to combat online harms, which will include precisely the dangers that she referred to.

In conclusion, as we have clearly established during the debate, AWD and its alias organisation, NSO, are dangerous organisations. They promote and advocate terrorism. They pose a threat to citizens in not just this country but many countries around the world, including the United States. As such, I urge colleagues across the House to support the order.

Question put and agreed to.

Resolved,

That the draft Terrorism Act 2000 (Proscribed Organisations) (Amendment) Order 2021, which was laid before this House on 19 April, be approved.

Overseas Operations (Service Personnel and Veterans) Bill (Programme) (No. 2)

Motion made, and Question put forthwith (Standing Order No. 83A(7)),

That the following provisions shall apply to the Overseas Operations (Service Personnel and Veterans) Bill for the purpose of supplementing the Order of 23 September 2020 (Overseas Operations (Service Personnel and Veterans) Bill (Programme)):

Consideration of Lords Amendments

(1) Proceedings on consideration of Lords Amendments shall (so far as not previously concluded) be brought to a conclusion three hours after their commencement.

Subsequent stages

(2) Any further Message from the Lords may be considered forthwith without any Question being put.

(3) The proceedings on any further Message from the Lords shall (so far as not previously concluded) be brought to a conclusion one hour after their commencement.—(David Rutley.)

Question agreed to.