Crime and Courts Bill [Lords]

David Burrowes Excerpts

Monday 14th January 2013 Commons Chamber

[Mrs May]

My right hon. Friend the Transport Secretary and I are currently considering the controlled drugs to be covered by the offence and the limits that should be set for such drugs for driving purposes. As a Government, we have taken a robust, zero-tolerance approach on illicit drugs through the drugs strategy. As we consider the detail of this policy, we will want to send an equally strong message that people simply cannot take illegal drugs and drive.

[Mr David Burrowes (Enfield, Southgate) (Con)]

I particularly commend the provisions on drug-driving. Given the problems I have seen as a practitioner, I am aware of the difficulty of proving the offence. Has consideration been given to further extending provisions beyond controlled drugs to include the impact of psychoactive substances, not least legal highs? We know of the impact they can have in terms of impaired driving, so has consideration been given to broadening the nature of the offence in this provision?

[Mrs May]

As I said in response to my hon. Friend the Member for Cambridge (Dr Huppert), the Secretary of State for Transport and I are looking at what should be covered by this offence, taking into account the drugs that can be identified and the levels that should be set for them. The Department for Transport is taking expert advice on what it is possible to identify within the bloodstream and within people’s bodies at the time that tests are taken.

I know that legitimate concerns have been expressed about the impact of this offence on those who take controlled drugs on prescription—for long-term pain relief, for example—but we have no intention of preventing people from driving where they are taking medication in accordance with medical advice, so the Bill includes provision for a medical defence. We will also want to take into account views expressed in response to the required consultation on the draft regulations, but I believe we must take a strong stand against those who would put other lives at risk by driving under the influence of drugs.

The Bill also delivers on our coalition commitment to ensure that the law is on the side of people who defend themselves when confronted by an intruder in their home. Few situations can be more frightening than when someone’s own home is violated. Faced with that scenario, a person will do what it takes to protect themselves and their loved ones. They cannot be expected dispassionately to weigh up the niceties of whether the level of force they are using is proportionate in the circumstances. If the intruder is injured, perhaps seriously, in such an encounter, the householder should not automatically be treated as the perpetrator where, with hindsight, the force used is considered to have been disproportionate. Clause 30 will ensure that, in such a context, the use of disproportionate force can be regarded as reasonable, while continuing to rule out the use of grossly disproportionate force.

I know this change in the law will be particularly welcomed by my hon. Friends the Members for Newark (Patrick Mercer), for Thirsk and Malton (Miss McIntosh) and for North West Cambridgeshire (Mr Vara), who have campaigned on this issue for a number of years. I congratulate them on having successfully brought this issue to the attention of Parliament and the public.

Let me now deal with clause 38, which would remove the word “insulting” from the offence of using threatening, abusive or insulting words or behaviour in section 5 of the Public Order Act 1986. This was added to the Bill in the other place. I respect the view taken by their lordships, who had concerns that I know are shared by some in this House about section 5 encroaching upon freedom of expression. On the other hand, the view expressed by many in the police is that section 5, including the word “insulting”, is a valuable tool in helping them to keep the peace and maintain public order.

There is always a careful balance to be struck between protecting our proud tradition of free speech and taking action against those who cause widespread offence with their actions. The Government support the retention of section 5 as it currently stands, because we believe that the police should be able to take action when they are sworn at, when protesters burn poppies on Armistice day and in similar scenarios. We have always recognised that there are strong views in both Houses. Looking at past cases, the Director of Public Prosecutions could not identify any where the behaviour leading to a conviction could not be described as “abusive” as well as “insulting”. He has stated that

“the word ‘insulting’ could safely be removed without the risk of undermining the ability of the CPS to bring prosecutions.”

On that basis, the Government are not minded to challenge the amendment made in the other place. We will issue guidance to the police on the range of powers that remain available to them to deploy in the kind of situation I described, but the word “insulting” should be removed from section 5.

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[Gavin Barwell (Croydon Central) (Con)]

It is always a pleasure to follow the Chair of the Home Affairs Committee, and doubly so since he was so kind about me in his speech. He speaks with great authority on all these issues, and although he tempts me towards the issue of appeals in relation to family immigration, I hope he will understand if on this occasion I rise to speak specifically to clause 37, which deals with drug-driving.

On 26 June 2010 my constituent, Lillian Groves, was killed outside her house. She was just 14 years old. The driver of the vehicle that knocked her down was driving a car that was not licensed in his name. He had no insurance to drive that vehicle, was driving at 43 miles an hour in a 30-mile-an-hour zone, and a half-smoked joint of cannabis was found on the car’s dashboard. When the police found him he was not at the scene of the accident as he had gone some distance down the road.

I hope the House will not mind if I pause for a second to reflect on what Lillian might have done in the rest of her life, the people whose lives she would have touched, the children she might have had, and the contribution she might have made to our local town. It is not just the loss of her life, but the impact her death has had on her friends and, most particularly, her family. Lillian was taken to hospital and pronounced dead some hours later. Sadly, the blood of the vehicle’s driver was not tested immediately, and only after Lillian died did the police conduct a test. Cannabis was found in his blood. The family have never been told the level that was found although the Crown Prosecution Service told them that it was not sufficient to warrant a charge of causing death by careless driving while under the influence of drugs.

The driver was sentenced to just eight months in jail. He served just four months and was released. He lives locally to the family, so for the rest of their lives they will be faced with the knowledge that every time they go to the local shops there is a danger that they will bump into this individual who has never spoken to them, apologised or shown any remorse at all for what he has done.

To my mind, those of my constituents, and I hope all Members of the House, that family did not receive justice in any sense of the word, and I want to pay tribute to Gary and Natasha—Lillian’s parents—and Michaela, her aunt. A number of Members, including the Chair of the Home Affairs Committee and the Home Secretary, have been kind to give me credit for the campaign I have run, but I do not feel that I deserve that at all as I am just doing my job. Those who deserve credit in this instance are Lillian’s family. They took a terrible situation that no parent would ever want to endure, and rather than be consumed by anger—as I fear many of us would be—they wanted to turn it into something positive and see a change in the way that we as a society deal with this issue so that other families do not have to experience their anguish.

Lillian’s family found a powerful and useful friend in our local paper, The Croydon Advertiser, and in particular an excellent young reporter called Gareth Davies who worked with them to put together a campaign for what they have called “Lillian’s law”. They came to see me at my surgery to ask for my support, and the package they were looking for contained four items. First, they wanted a change in the law itself. As the Home Secretary mentioned in her speech, although it is currently an offence under section 4 of the Road Traffic Act 1988 to drive while impaired by drugs, it is extremely difficult to secure convictions under that legislation because it is difficult for the prosecution to prove impairment. There is no equivalent to the law on drink-driving whereby if someone has more than a certain level of a drug in their blood, that is held to be evidence of impairment. The law is not weighted in the same way. The first thing, therefore, was to change the law, which is what clause 37 does.

I hope the House will not mind if I mention a couple of other things that the family are also looking to see happen. The second point is to have a device, equivalent to a breathalyser, initially for use in police stations but in the longer term for use at the roadside. At the moment, the police conduct a field impairment test, the suspect can be taken to the police station and a doctor must be called to conduct a blood test. That is expensive and time consuming and there is therefore a disincentive to conduct such tests. It is important to get devices in place that allow tests to be carried out that are equivalent to those for drink-driving. I am pleased that the Government have recently given type approval for devices for use at police stations, and I understand—perhaps the Minister will confirm this—that the intention is to approve a device for use at the roadside by 2014.

The third issue was to look at sentencing and to ensure appropriate punishment for those convicted of such offences. The Bill would provide a level of sentence equivalent to that for drink-driving. The fourth thing, which can only happen once the three other pieces of the jigsaw are in place, is to look at an enforcement campaign similar to that of the 1980s on drink-driving. There was a time when lots of people drove under the influence of drink—to a degree, it was the cultural norm. It took that enforcement campaign in the 1980s to change attitudes, and I think we now need a similar campaign about driving under the influence of some drugs that, sadly, are all too prevalent in society today.

When the family came to see me at my surgery, I was faced with the challenge of what to do and how to help them. As usual, the House of Commons Library was a great place to start, and I began researching the law and previous efforts to change it—and to be fair to the last Government, they looked at this issue. It was a difficult and complicated matter, however, as several different Departments were involved: the Home Office, in relation to the police’s responsibilities; the Ministry of Justice, in relation to the criminal offence; and the Department for Transport.

I decided to raise the profile of the issue and ask about it in Prime Minister’s questions. I want to put on the record my thanks to the Prime Minister, because he agreed to meet the family and invited them to 10 Downing street to see him. I guess they found in him one of the few Members of the House who sadly could understand exactly what they had been through in losing a child. The staff at No. 10 have worked closely with all three Departments to get the change in the law before us today through as rapidly as possible.

I want to ask a couple of questions about the detail. The hon. Member for Cambridge (Dr Huppert) alluded to this matter in a question that he asked the Home Secretary earlier about what the limits for specified drugs might be. Proposed new section 5A(9) in clause 37(1) provides that specified limits could be zero. Paragraph 562 of the explanatory notes, which are always a great source of guidance, contains the wonderful sentence:

“New section 5A(9) provides that specified limits could be zero, though this does not mean that limits would in fact be set at zero.”

One can make of that what one will.

Lillian’s family feel strongly that the level for illegal drugs should be set at zero. As a matter of principle, they feel that people should not be taking these substances and therefore should not be driving under their influence. There is the strong counter-argument, however, that we should be led by science, as the hon. Member for Cambridge tried to point out, that we should try to discover what level of an active substance in the blood stream leads to the same level of impairment as the blood alcohol limit and that we should set the limits that way. Clearly, as the Bill tries to do, we also have to consider prescribed medications that have the same active substances as some illegal drugs.

[Mr Burrowes]

I commend my hon. Friend for his leadership in driving through this important change. I want to ask about the sentencing impact. Assuming its safe passage, this proposal will have as its outcome a sentencing maximum of 12 months. If someone is impaired by being over the limit, whether in relation to drugs or alcohol, plainly that is inherently careless, but only if they were charged with causing death by careless driving while under the influence would their case get to the High Court for a much heavier sentence, which is what many of these people deserve.

[Gavin Barwell]

As usual, my hon. Friend makes a good point, and I will explore those issues once I have dealt with the limits.

A decision needs to be made about whether the levels should be based as far as possible on the scientific evidence of similar levels of impairment to that caused by alcohol or whether there is a case, as the family believe, for zero limits for some of the most serious substances. As I understand it, the Government have set up the Wolff panel to consider the detail. They themselves are finding this a highly complex and difficult area and are taking a bit more time than originally envisaged to do this work, but I would be grateful for any guidance that the Minister could give in his winding-up speech about the timing of the panel’s report.

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[Mr Edward Leigh (Gainsborough) (Con)]

I want to speak in support of clause 38. It was inserted into the Bill by those in the other place, who voted 150 to 54 against the wishes of both the Government and the Opposition. That is quite an achievement and I pay tribute to the other place for what it has done. In passing, I say that I do not think that such a rebellion would have happened if the other place had been dominated by elected machine politicians, so once again the House of Lords has justified itself on a cross-party basis and forced the Government to see the light.

What does clause 38 do? It removes “insulting” from section 5 of the Public Order Act 1986. This is a free speech reform. It has been called for, for years by civil liberties groups, gay groups, Christian groups, secular groups, right wingers and left wingers. It is opposed almost by no one, apart from the Government, until today. Sinners are always welcomed when they repent very late in life, so we should welcome the Government to the lighter side. However, the Home Secretary did not seem entirely convinced, so I hope the House will forgive me for a few moments as I try to explain the rationale for this important campaign, which has been running for years and has united Peter Tatchell and myself—quite an achievement.

[Mr Burrowes]

I, too, thoroughly welcome this change. On the issue of repenters, there is another category that my hon. Friend has not mentioned—the Opposition. The shadow Home Secretary was distinctly ambivalent in welcoming the fact that the Lords have allowed us to see sense. Would my hon. Friend care to comment on that? While we may have the numbers, it is important to recognise the cross-party, cross-issue, cross-everything opposition to having “insulting” in section 5.

[Mr Leigh]

I do not want to be party political, because many Labour MPs have joined us in the campaign that we have been waging. This is not a Conservative-Labour issue. I cannot really understand why the Opposition are still equivocating when we have had such a long consultation and when the issues are not very difficult. I still hope that the Opposition, at the last minute, in winding up this debate, will get off the fence. The House, along with people who have been campaigning on the issue for years, are entitled to know where they are.

The campaign has been waged for a long time. I spoke about the issue in 2011, during the passage of the Protection of Freedoms Act 2012—that, too, was on Second Reading. I then tabled an amendment that was exactly the same as clause 38 in this Bill—unsurprisingly, as the same people who have been campaigning drafted both clauses. It was co-sponsored by 64 Members of the House, from every party and every shade of opinion. The Joint Committee on Human Rights—a Committee of Parliament—described it as a “human rights-enhancing measure”. We had been speaking on the issue for years, so we did everything to secure a debate. I do not want to talk too much about Government bad behaviour in the past; one should not perhaps do so when they have done something right. We got the measure tabled as new clause 1—we got there first at the end of the Committee stage. However, unfortunately, after we had got 10% of the House to co-sign it, the Government then took the unusual step—I will not say any more—of using a programme motion to prevent it from being debated. Why? Perhaps they feared that we might defeat the Government—something that happens very rarely in this place.

However, we did force the Government to have a consultation, which was great. The consultation started, lasted a whole year and closed on 13 January 2012—a year ago. We were still waiting and now we have a few words from the Home Secretary. That appears to be the end of the consultation, but it would still be useful to see it, because this is an important issue. We want to know why the Government have changed their mind on this, so it would be quite nice for the consultation, a year after it was closed, to be published.

Why is clause 38 so important? It is important because it removes section 5 of the 1986 Act, which was undermining civil liberties. The breadth of cases suggests that virtually anyone could find themselves at the wrong end of section 5. They have been cited several times, but I want to go through some good cases—there are many others—to show how section 5 was being used against civil liberties and freedom of speech. Section 5 was cited in a court summons given to a 16-year-old protester for holding a placard saying,

“Scientology is not a religion, it is a dangerous cult”.

A Tynesider named Kyle Little was convicted and fined under section 5 for saying, “Woof!” to two Labradors. Thankfully, that conviction was quashed. An Oxford student, Sam Brown, was arrested under section 5 for saying to a policeman,

“Excuse me, do you realise your horse is gay?”

Thames Valley police said:

“He made homophobic comments that were deemed offensive to people passing by.”

My friend Peter Tatchell was charged under section 5 for condemning the murder of gay people by Islamic extremists. His placards were deemed by police to be insulting and likely to cause distress. Blackpool café owner Jamie Murray was told by officers that playing DVDs showing text from the New Testament was a possible section 5 offence.

The police have often used section 5 to freeze debate and stop difficult people speaking out, but in this place we should cherish difficult people. That is what this place is about: cherishing people who do not always go with what the establishment wants. In another case, animal rights protesters were threatened with arrest and seizure of property under section 5 for protesting against seal culling by displaying toy seals coloured with red food dye. One of my favourite cases—I think I can end on this one, because it goes against what I normally talk about and believe in—involved an atheist pensioner in Boston, in my part of the world. He wanted to place a small sign in his window saying:

“Religions are fairy stories for adults”—

I never thought I would repeat that in this House, but that was his crime, apparently. He was told by Lincolnshire police—our very own police—that if anyone complained, he could be arrested and dealt with under section 5.

These cases are worrying. We might be tempted to blame poor on-the-spot decision making, but when there are so many, with such wide variation, and when some of them progress to the courts, it is no longer a joke. We have to conclude—and we have concluded; and now, thank God, the Government have concluded—that there is something wrong with the law.

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[Mr David Burrowes (Enfield, Southgate) (Con)]

I declare an interest as a criminal defence solicitor.

I welcome the Bill and want to draw out some nuggets that I believe can, in certain circumstances, be refined to be even more golden. On the whole thrust of the Bill in terms of efficiency and coherency, I welcome and support the single county court and single family court provisions. I particularly draw the Minister’s attention to the jurisdiction issue in relation to the youth court. The Government’s approach is to triage cases into the appropriate courts. The nugget that I particularly welcome is the change giving youth courts the power to grant gang-related injunctions. That is welcome in my constituency and in the borough of Enfield. We were the first north London borough to obtain a gang-related injunction, which led to a 14-month prison sentence. Indeed, the cross-partnership work in the borough has led to a 50% reduction in serious gang crime-related violence.

However, there needs to be flexibility. We can perhaps go further in making this nugget even more golden when dealing with young offenders. We have seen across courts the value of community justice, having drawn from America the examples of Red Hook and Harlem, and now there is the example of Liverpool as well. In our whole approach to community justice we must recognise that when someone comes to court they come with a whole package of concerns that may well go across jurisdictions. That arises particularly when dealing with young offenders, given the need for timely and effective intervention.

From my experience over the years, I know that young offenders often come with a package of family problems. They might well be the victims of abuse. There will often be parenting issues, and some children who appear before the youth court should be in care. At the very least, they are likely to be vulnerable. The magistrates who deal with them often also sit on the bench of the family division, and they have been expressing their frustration for a number of years that they cannot intervene quickly to enable those young people to get into the family court where appropriate welfare orders can be made. That is what happens in the Scandinavian jurisdictions, and the possibility of it happening here has been mooted by the Government in the past.

This is not a new issue. I refer hon. Members to the Home Office consultation document produced in March 1997 entitled “Preventing Children Offending”. Paragraph 103 states:

“Under the law at present, the Youth Court is not able to refer children to the Family Proceedings Court for consideration of a care or supervision order. It is possible that this might be a useful additional power which would enable the Youth Court to deal more effectively with difficult children.”

We then had an election, and the rest is history. I still believe that that proposal would be welcome, however, and it should be looked into. We have an opportunity to try to get young people into the right jurisdiction. The proposal has also been welcomed recently by the Youth Justice Board, which is very supportive of it. When John Drew, the chief executive, spoke at the board’s annual conference in November, he welcomed the opportunity, in appropriate cases, to get children to where they needed to be, which could well include the family court.

Another nugget in the Bill is the provision on community penalties. I welcome the proposal to ensure that there will be a punitive element to them. That is appropriate because, when an offence is serious enough to warrant a community penalty, the deprivation of liberty must be implicit in that penalty. That will now be the case. I also welcome the provision to allow the courts to defer sentencing at the pre-sentence report stage in relation to the provision of restorative justice. Fifteen years ago, I was involved in a pilot at Haringey magistrates court in which sentencing was deferred to accommodate restorative justice conferencing. We have been through many such pilots and reviews over the years, and the evidence is clear. It is about time we got on and dealt with this, and I welcome the fact that the Government are now pushing the measure forward. It will be based on the need not only for restorative justice but for quality restorative justice. We need to look at the details to ensure that the right people will be dealing with the provisions, and that the provisions are victim led and carried out to the satisfaction of the victims. That could well lead to a reduction in reoffending.

The hon. Member for Hayes and Harlington (John McDonnell) mentioned the provisions on fines. I welcome the changes in the Bill. Yes, they may lead to contracting out; “may” is a very important word in legislation. This is not about wholesale privatisation. The ideological bent is that we are on the side of the victims, all too many of whom are not receiving the compensation due to them. The financial penalties involved are simply not being paid, which is why we need to pursue all options to ensure that fines can be collected more effectively and quickly, especially in relation to compensation orders. The burden of the collection costs should fall not on the taxpayer but on the offender, and I welcome the fact that that will now happen.

I also welcome the new offence of drug-driving; it is about time that it was introduced. As a legal practitioner, I have defended many cases that were unable properly to be proven in relation to the impairment caused by an intake of drugs. I have seen the gaps that prevent such cases from being properly proved in court. The Bill provides clarity in that regard. We need to proceed with caution, however, and to ensure that cases are based on evidence and examine the specified levels. This is a complex area in relation to particular opioids and certain other drugs. We need to focus on ensuring clarity in the law, so that we do not allow people on prescribed medication to fall foul of the legislation, when its target is those who are flagrantly taking drugs and going out in a vehicle and causing a menace to others.

There is a medical defence in the Bill, but that might not be enough when a person is arrested and taken into custody. That person will have had their liberty taken away and will then have to prove their medical evidence in court. We shall have to see how we can deal with such cases proportionately, when we produce the guidance. On sentencing, I note that schedule 18 contains a provision to up the sentence for being unfit to drive owing to drug-taking to the equivalent of the sentence for causing death by dangerous driving. We need to ensure there is equity with driving with excess alcohol.

I welcome those and other provisions in the Bill, some of which will perhaps receive further refinement in Committee. I am also grateful to the Government for acceding to the wish of Members across the House and in the other place that the term “insulting” be removed from clause 5. That is welcome on the grounds of religious freedom and freedom of speech; it also demonstrates common sense.