Serious Crime Bill [Lords]

David Burrowes Excerpts

Monday 5th January 2015 Commons Chamber

[Mrs May]

The way in which the National Crime Agency operates involves a decision on how best to deal with any particular organised crime group that comes to its attention. The agency works with individual police forces as well as with the regional organised crime units to ensure that assets are being used as effectively as possible against the organised crime groups. I am not saying that a situation such as the one the right hon. Gentleman describes could never happen, or that different forces are never involved in investigating the same crime. However, before the NCA came into being, we set up an organised crime co-ordination centre to consider precisely that issue. We do not want anyone to slip through the net, but we also do not want police officers operating against an organised crime group to be put in danger because of the operations of another force. There might be more work to be done in this regard, but there is now a much greater ability to co-ordinate, particularly through the regional organised crime units.

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

On the point about co-ordination, we must also remember the incentive scheme that encourages the many bodies involved to investigate and to confiscate the proceeds of crime. Has the Home Office reviewed that scheme yet to see whether it needs to be revised, as was suggested to the Public Accounts Committee last year? Given that the Home Office receives 50% of those assets, despite having no operational role in the process, does the Home Secretary envisage a change being made to that percentage?

[Mrs May]

My hon. Friend raises an important point. We are continually looking at that issue. Indeed, the Criminal Finances Board, under the Under-Secretary of State for the Home Department, my hon. Friend the Member for Staffordshire Moorlands (Karen Bradley), has looked into it.

I want to talk about those parts of the Bill that will enable us better to access criminal assets, because that is an important part of what we do. As I said, organised criminals are primarily motivated by profit, and we need to be able to do all we can to strip them of their ill-gotten gains and send the message that crime does not pay. In part, this is about more effective enforcement, and my hon. Friend the Under-Secretary, who has responsibility for dealing with modern slavery and organised crime, is currently overseeing the implementation of our plan to improve the recovery of criminal assets. We must also ensure that organised criminals are not able to exploit loopholes in our legislation to frustrate asset recovery and avoid the reach of the law, which brings me to the proposals in the Bill.

Part 1 of the Bill makes a number of significant changes to the Proceeds of Crime Act 2002. First, we are lowering the threshold for granting a restraint order—the means by which a defendant’s assets are frozen. It will now be easier to secure a restraint order immediately before effecting an arrest as the test for both will be aligned, thus removing the window of opportunity for a defendant to dissipate his or her assets. Secondly, we are halving the maximum amount of time that may be allowed by the court for payment once a confiscation order is made. That will mean that the victims of crime will receive recompense more quickly, and it will also further deprive criminals of the opportunity to live off or conceal their assets.

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[Mr Burrowes]

I commend this part of Bill, which I know has cross-party support, including from the Solicitor-General, the late Member for Wythenshawe and Sale East, who played an active part in its promotion, me and others. I welcome the updating of the Victorian language of the previous legislation and the extension to non-physical harm, but is this not an appropriate opportunity to go further and update the language on wilfulness? As I understand it, even after clause 65 is passed, the word “wilful” will remain in the legislation. Should we not take this opportunity to remove the word “wilful” and to make it clear that it should equate to recklessness? That already applies in case law and it should also apply in statute.

[Mrs May]

I believe that the proposals we have put forward are appropriate, but my hon. Friend makes a serious point, which I assume reflects some of his legal experience. I am willing to take that point away and have a further look at it, but I think the proposals in the Bill as we have set them out are sufficient to ensure that we are able to update the offence on the statute book and make sure it covers all types of harm to young people.

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

It is a pleasure to take part in the debate, and I welcome the comments of the hon. Member for Rotherham (Sarah Champion), particularly those focusing on child protection. I shall also focus on part 5 of the Bill, and particularly on the amended child cruelty offence. The hon. Member for Ceredigion (Mr Williams) paid proper tribute to all those involved in working in that area, and I echo that tribute. I also want to pay tribute to Action for Children, which has been campaigning for many years for reform of the law in order to better protect children from emotional neglect. Back in February 2013, alongside the late Paul Goggins—to whom it is appropriate to pay tribute in relation to this campaign—I tabled an amendment to the Children and Families Bill calling for a change to our archaic child neglect laws. Clause 65 of the Serious Crime Bill offers a more up-to-date application of the law on cruelty.

The media, the police and the courts have rightly focused on sexual and physical abuse, both historical and current, but it has already been pointed out that neglect and other non-contact forms of abuse are the most prevalent form of child maltreatment. According to evidence compiled by Action for Children and the NSPCC, this is the most disregarded area of child abuse.

This long campaign has been based on a critique of child cruelty laws that contain definitions that are both out of date and unhelpful. The Government are to be commended for recognising the problem after much consideration and following the recent review. The law enacted in 1933 was based on the Poor Law Amendment Act 1868, which was passed to criminalise the offence of child neglect following the case of a secret and aptly named sect known as the Peculiar People, who deliberately withheld medical treatment from gravely ill children on the ground of their faith. To our eyes, in 2015, the language of that law is indeed peculiar, and it is quite right that it is now being amended.

As has been said, the current statute does not allow us to recognise severe psychological and emotional abuse as a crime, but severe forms of emotional abuse can be just as damaging to a child’s development as physical abuse. I very much welcome clause 65, which extends the definition of ill-treatment to include non-physical harm. It also covers the important area of the wider circumstances where an infant is sadly suffocated as a result of sleeping next to someone who is under the influence of prohibited drugs. It is important that the law has been updated and extended in that area.

Clause 65 is needed for the sake of children such as Sarah. Action for Children told me that when Sarah was five years of age her mother locked her and her younger siblings inside the house or out of the house for most of the day. When they were not locked out they were imprisoned in their bedrooms. The authorities were alerted by neighbours, who often heard the children crying. The reports were that the children were defecating in their bedrooms and smearing excrement on windows—it was a cry for help. At the age of eight, Sarah was repeatedly teased about her dirty clothes. Understandably, she became isolated and seriously depressed. She was treated by her mother as a servant and required to look after her younger siblings. When at the age of 11 she was finally taken into foster care, her story came to light. That shows why the law needs to be changed and we need a Cinderella law—this, however, is no fairy story for Sarah or those like her up and down the country, who sadly often suffer in silence. They suffer and are affected by serious mental ill health, with some resorting to suicide. They rightly deserve a law that is fit for purpose, and now clause 65 gives such children legal protection from all forms of child abuse.

One big problem has not been as clearly dealt with as it could have been, and it relates to the investigation and prosecution of neglect cases. Neglect sits alongside other cruelty definitions which are “positive” in their nature: assault, ill-treatment, abandonment and exposure involve acts of action, whereas neglect involves acts of omission. That is why I intervened on the Home Secretary to ask for this Minister particularly to consider whether the progress on reforming the antiquated language of the 1933 Act is now reflected in clause 65. The definition of “ill-treats” including “whether physical or otherwise” quite properly covers non-physical neglect that prosecutors and police can probably appreciate. Reference has been made to the debate in the other place and the fact that guidance and training will be given in this regard. I welcome that, because it is important that everyone on the ground understands clearly what “neglect” means. The issue we face is that the word “wilful” remains. It applies in other areas of criminal statute, but it is of particular concern in this regard because “wilful” is attached to neglect. It is easier for juries, prosecutors and investigators to understand the term in relation to the “positive” acts of cruelty, but where acts of omission relating to neglect are seen as “wilful” it implies a deliberate intent. The other parts of this offence have now been updated, but the provisions on neglect have not been in relation to wilfulness. Even with clause 65, professionals and juries will still have to comprehend how a defendant can wilfully not do something. We do not want any lack of clarity. We want this made as clear as possible and we have a real opportunity to get this absolutely right and make it cast-iron, so I encourage the Minister to reflect on the matter during the further deliberation on the Bill.

The other point I made in an intervention was on the need properly to equate these arrangements with what happens in current case law, where it is very much established that wilfulness equates to recklessness. There must be a way of dealing with this in definitional terms to ensure that that is recognised in statute, given that we have an opportunity to update primary legislation to reflect the reality that “wilful” means reckless. Understanding whether or not someone has caused psychological harm to a child through a failure to act while in a reckless state of mind is easier for professionals to apply in practice. The bottom line is to see what is happening in practice. Cases such as Sarah’s have sadly happened all too often and this change would make it obvious to the professionals when they go into the house on the first occasion that they can say, “Yes, that is neglect.” They would not have to work around antiquated language to be able to deal with it. That is probably a matter to examine in greater detail in Committee.

I am pleased that the Bill recognises that for too long we have viewed the non-physical harm of children as being in some way less serious than physical harm, given that emotional abuse has such devastating, lifelong consequences for children’s mental health and well-being. It is good to see the Solicitor-General back in his place, because he has been involved in this campaign from an early stage. Clause 65 says loud and clear that the law will no longer neglect child neglect.

Let me now deal with part 1. Confiscation orders have been the subject of significant legislation in recent years, seeking to catch criminals and seize their criminal assets. As has been said, the aim is to ensure that their crimes do not pay. I welcome the lowering of the threshold test to “suspicion”, so that early action is taken on restraint orders. That will have a significant impact. We want to catch the criminals and seize their assets as soon as possible, and this is not all about legislation; clearly, it is also about enforcement, co-operation and building incentives across the many organisations involved. That is why the Public Accounts Committee—before I was a member of it— published its report on 21 March in response to the critical National Audit Office report, in which it examined two areas in particular. The first was the incentive scheme, where it wanted to ensure a revision of that scheme to align success measures and objectives set out in the criminal finances improvement plan with a linkage in respect of effort and reward. The existing scheme simply rewards bodies for the amount of money they collect. We have a situation where, as a rule, the Home Office receives 50% of confiscated assets, despite it having no operational role. If we are to look seriously at incentives and linking effort and reward, we need to examine whether that is a fair allocation, particularly in these challenging financial times. It is a challenge for the Home Office to do this itself, because it has an interest in the gains from that 50%. We should ensure that the money recovered goes to operations and to the specialist resources needed for us to catch more of these criminals.

I ask the Minister whether that arrangement is likely to change in any shape or form. The Government indicated to the PAC that they would revisit the asset recovery incentivisation scheme by the end of last year. I understand that the latest information is that the NAO is not aware that the Government have revised the incentives scheme. Will the Minister clarify the position? Will the Home Office ensure that all organisations provide their returns—I understand that these returns are not all complete—so that we can know exactly what is happening on providing a better linkage between effort and reward? Let me give one example in this regard.

Local authorities play an important part in the chain of trying to catch these criminals, using intelligence support on the ground. Very much at a local level, they are able to play a crucial role in money laundering investigations and ensure that the proceeds of crime are recovered. Among others, they have a good case for ensuring that they get a fair share of the proceeds cake, so that the money can go directly to resourcing this specialist investigation. I say that with an interest, because Enfield was referred to in the other place by Lord Harris of Haringey, and it uses the money, and has done since 2011, to fund a specific post. That post has helped in undertaking the first prosecution nationally for money laundering against an illegal poker den, where the defendant was sentenced to 15 months. In addition, financial evidence was able to be provided in this way against a trader who was convicted of operating a fraudulent HGV training school and sentenced to 44 months, following a month-long trial. Those are just some examples, among many, of the good work coming from that individual post which has been funded in this way. It is important that that early stage investigation by an accredited financial investigator can continue to be funded if Enfield gets its fair slice of the cake via a proper revision of the incentivisation scheme.

I welcome clause 10 and the increase in the maximum default sentences, which has the proper aim of preventing defendants from choosing to serve prison sentences rather than pay confiscation orders. I welcome the removal of early release provisions for the non-payment of confiscation orders of those who have gains of more than £10 million. I understand that that was also the recommendation of the Joint Committee on the draft Modern Slavery Bill. It is important to see the thrust of that continuing, to ensure that we catch the most heinous of criminals who are exploiting the most vulnerable and gaining so much.

I would be interested to know—this may well be explored further in Committee—why the Government have decided to remove early release provisions only for those with £10 million confiscation orders, and not for those with lower levels. I know that that matter was debated in the other place. An interesting judgment has to be made. Does such a decision represent value for money—the amount likely to be recovered from those with such orders—or do we need to consider the extra costs that would arise from the additional numbers in prison? There is also a general principle around removing early release, and the fact that it might also act as a deterrent.

I understand that 60% of orders for sums of up to £500,000 have been discharged, which is a relatively good rate. We still want to see more progress, and the increase in penalties from lowering the threshold might help to improve that percentage. The Government are particularly focused on the 18% with more than £1 million who have only been discharged. That rate needs to be improved.

The Government seem to think that they should focus particularly on those who have gains of more than £10 million. Those people will lose their early release, and so serve up to 14 years in prison. That will certainly have an impact. In the debate in the other place, there was a suggestion that more anecdotal evidence was available. I would like to see more evidence—more value-for-money evidence in particular. The public have a great disdain for early release provisions. The previous Government introduced automatic early release. The public failed to understand it, so, as part of our manifesto commitment to honest sentencing, we decided to move away from that. Minimum/maximum sentencing is a more honest and open way of proceeding with sentencing.

Interestingly, in this Bill there is an order-making power for minimum/maximum sentencing. It is an unprecedented move in relation to sentencing, but it has now been given an airing. I ask the Government to provide clarity on this. They should accept the principle of minimum/maximum sentencing as an honest way forward while still retaining early release, particularly where we still have early release provisions for those with orders of less than £10 million. The question my constituents might ask is whether it is right for there to be the option of early release for those serious criminals who have orders of £900 million-plus. Should they get early release if they have not paid back what they should for their crimes? It is a judgment call for the Government. They are holding the Opposition to account for their general commitment to scrap early release for all default sentences, and there is certainly a cost attached to such a policy.

I ask the Government to come back with further evidence so that we can judge why they have simply gone for those at the very high end. It is important that we come back to the basic principle—a principle that I applaud—which is to go away from what I think of as the dishonest sentencing of early release to a more appropriate minimum/maximum sentencing. The bottom line is that this Bill gives order-making powers to vary that. I understand why the Government want to proceed cautiously with the deterrent effect of removing early release for those with orders of £10 million and more and seeing how that works. I encourage the Government to go further with upper thresholds as well.

The other matter that the Government will be introducing by amendment relates to mobile phones and it appeared in our weekend papers. I welcome the fact that action has been taken in this regard. It has bedevilled prisons for many years. Some 7,000 known criminals in prisons in England and Wales are linked to the problem of illicit mobile phones. Blocking those phones has challenged successive Governments. This Government in particular have looked at how they can do it, but have found it difficult both technologically and economically. The physical detection of phones is challenging and costly. Allied to the new and cheaper technology to detect the use of phones will be court orders to blacklist prisons and young offenders institutions. That will cost the taxpayer £300,000 rather than the £300 million that it would have cost to go through a blocking exercise. This measure is really welcome and exceptionally good news in the fight against organised crime. It may conjure up images from “Porridge” or from the original version of “The Italian Job” of a somewhat benevolent Mr Big organising his crimes, but the reality is far removed from that. The technology is used for murders, drugs importation, slavery and exploitation and to prey on the most vulnerable. The measure is very welcome.

I welcome the Bill. It shows that the Government have not run out of steam and that they are not simply concerned with throwing out populist press releases. They are prioritising important legislation, protecting the vulnerable and prosecuting serious organised criminals who prey on the most vulnerable. It is indeed a serious crime Bill from a serious Government.