Crime and Policing Bill (Seventh sitting)

Diana Johnson Excerpts

Committee stage
Tuesday 8th April 2025 Public Bill Committees

[The Chair]

With this it will be convenient to discuss the following:

Schedule 5.

Amendment 5, in clause 33, page 36, line 29, after subsection (5) insert—

“(6) For the purposes of section 33(5)(b), B shall be presumed to lack capacity to give consent if they—

(a) would be deemed to lack capacity under the provisions of Section 2 of the Mental Capacity Act 2005; or

(b) are otherwise in circumstances that significantly impair their ability to protect themselves from exploitation, unless the contrary is established.”

Clauses 33 and 34 stand part.

[The Minister for Policing, Fire and Crime Prevention (Dame Diana Johnson)]

It is a pleasure to see you in the Chair this morning, Ms Lewell. It might be helpful to the Committee to hear about amendment 5 before I respond.

[Anna Sabine (Frome and East Somerset) (LD)]

Cuckooing is the offence of exercising control over the dwelling of another person to carry out illegal activities. As this legislation is drafted, the person whose dwelling it is has to not have given consent for it to be an offence of cuckooing. Amendment 5 would strengthen protections for vulnerable individuals by modifying clause 33 to clarify when a person is presumed unable to give valid consent in certain situations involving potential exploitation.

Cuckooing is pervasive in our society. Last week, my hon. Friend the Member for Dorking and Horley (Chris Coghlan) was in the news discussing a young man with autism who was found dead in his flat after a criminal had moved into his flat and stabbed him. Despite attempting suicide, being a victim of theft, being rescued by the emergency services after accidentally causing a fire, and being assaulted and exploited on numerous occasions, mental capacity assessments were not carried out because the authorities assumed he had capacity. His mother visited him as often as she could, asked the police for welfare checks and urged the authorities to help. My hon. Friend is campaigning with cross-party MPs to amend the Mental Health Bill.

Given that the Crime and Policing Bill will provide a new offence for cuckooing, that case shows that we also need to strengthen the protections for vulnerable individuals who may be mentally incapacitated or in vulnerable situations, as amendment 5 would do. It would shift the burden of proof, so if someone were deemed to be in an impaired state, they would automatically be presumed unable to give informed consent unless proven otherwise. It would expand the definition of vulnerability to cover not only legal mental incapacity, but those in exploitative situations such as coercion, abuse or extreme distress.

The amendment would help to prevent the exploitation of vulnerable individuals, especially in criminal policing or safeguarding contexts. It also aligns with broader safeguarding laws and human rights protections, and would make it harder for perpetrators to claim that a victim gave valid consent when actually in a compromised state. I urge the Committee to support amendment 5.

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[Mr Alex Barros-Curtis (Cardiff West) (Lab)]

It is a pleasure to serve under your chairship, Ms Lewell; after some excellent contributions on this set of clauses, I hope not to disappoint you. It will not surprise you to hear that I support clauses 32 to 34 and schedule 5.

As we have heard from Members on both sides of the Committee, cuckooing destroys lives, destroys homes and serves as one of the most egregious examples of exploitation, especially of children, in society currently. It is a despicable and offensive practice, wherein criminals exploit the most vulnerable in our communities by taking over their homes for illegal activities, so I commend the Government for creating a new bespoke criminal offence to tackle the practice of home takeover.

For too long, as my hon. Friends have said, cuckooing has been a subversive injustice in our towns. As the Government state in the papers supporting the Bill, unfortunately there is no centrally held data; I hope that, after the implementation of the criminal offence of cuckooing, we will begin to see such data for all the home nations.

As my hon. Friend the Member for Southend West and Leigh said, many people may not even notice it is happening, at least to begin with. There are several signs to look out for that may indicate someone is a victim of cuckooing: frequent visitors at unsociable hours, changes in a neighbour’s daily routine, unusual smells coming from the property, and suspicious or unfamiliar vehicles outside an address—individually they seem innocuous, but in reality they are insidious and malign.

Drug dealers, human traffickers and violent gangs all can prey on children, the elderly, the disabled and the most vulnerable in our society. They force their way into their victims’ homes, using manipulation, threats, coercion and violence to turn their homes into drug dens, bases for exploitation and centres of criminality. As both the hon. Member for Isle of Wight East and my hon. Friend the Member for Southend West and Leigh said, that is typically across county lines.

The victims are left terrified in their own homes, their mental and physical wellbeing deteriorating in the very place that they are meant to feel most safe. Neighbours suffer as their streets are blighted by crime and antisocial behaviour, and are unable to feel safe in their own community. As was eloquently expressed by my hon. Friend the Member for Forest of Dean, despite their tireless efforts, our law enforcement officers have lacked the legislative tools to tackle cuckooing effectively.

Clauses 32 to 34 and schedule 5 will change that. Those vital clauses will introduce the specific criminal offence of cuckooing, ensuring that those who invade and exploit vulnerable people’s homes can face the severest of consequences. By making cuckooing a distinct offence, we send a clear message that we will not stand idly by while criminals hijack the homes of the weak and defenceless. I pay tribute to all the campaigners and organisations who have researched and campaigned for the creation of this specific offence over many years.

The clauses will give police officers greater powers to intervene early, ensuring that victims are safeguarded and perpetrators are brought to justice; they will enable faster action by enabling authorities to have the necessary powers to arrest criminals, and they will allow homes to be returned to their rightful residents without the current muddy legal waters that are delaying and frustrating justice, as my hon. Friend the Member for Forest of Dean said.

The clauses should be seen not in isolation, but as part of a package of measures to protect children and vulnerable people. Last week, we discussed child criminal exploitation and the offence that the Bill will create in that regard. These are all essential legislative components of the Government’s safer streets mission, which should be supported across the House. I think we have seen a demonstration of that with the comments from both sides of the House in respect of these clauses. I reiterate my support for the clauses and welcome that cross-party support. Making cuckooing a stand-alone criminal offence, with a maximum penalty of five years in prison, sends the clearest signal that we are on the side of victims in furtherance of our safer streets mission.

[Dame Diana Johnson]

This has been an excellent short debate on this group of clauses on cuckooing. I note the cross-party support for introducing this new law. We have had some really good contributions. I noted particularly the contributions from my hon. Friend the Member for Gravesham, who talked about James’s story, and my hon. Friend the Member for Southend West and Leigh, who spoke very personally about the effects on individuals who find themselves victims of cuckooing. My hon. Friend the Member for Leigh and Atherton talked about the effect it has on communities. My hon. Friend the Member for Forest of Dean talked about his experience as a police officer, recognising the gap in the law and how justice could not be delivered for victims of cuckooing, while my hon. Friend the Member for Cardiff West talked about the subversive injustice of cuckooing in our communities.

Many contributions covered what cuckooing means for local communities and what they should be looking out for. I noticed my hon. Friend the Member for Gravesham’s comments about one in eight people saying that they have seen signs of cuckooing in their areas; it is a problem in many communities.

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[Joe Robertson]

I thank the Minister for that clear explanation in response to both my queries. I say again that it would be usual in drafting to say, “include, but are not limited to”, just to make it absolutely clear to legal practitioners that it is not an exhaustive list, so I put that on the record again. I am sure the Minister’s officials are listening, and I would be pleased if she could perhaps go away and think about a small amendment there.

[Dame Diana Johnson]

I am sure that the hon. Gentleman is trying to help the Government to ensure that this legislation is as good as it can be, so we will reflect on what he says.

I want to make some general observations and comments on this grouping. Clauses 32 to 34 and schedule 5 provide for the new offence of controlling another’s home for criminal purposes, commonly known as cuckooing. As I am sure we all agree, cuckooing is a truly abhorrent practice whereby criminals target and take over the homes of vulnerable people for the purposes of illegal activity. It is often associated with antisocial behaviour and the exploitation of children and vulnerable people used by criminal gangs inside properties.

Currently, a range of offences can be used to prosecute criminal activity commonly associated with cuckooing. For example, the inchoate offences under sections 44 to 46 of the Serious Crime Act 2007 may apply where cuckooing amounts to an act of

“encouraging or assisting the commission of an offence”.

Any criminal activity carried out from the cuckooed property would also already be an offence. For example, where a cuckooed property is used to supply illegal drugs, offences under the Misuse of Drugs Act 1971 may apply.

It is the Government’s view, however, that the existing legal framework does not reflect the harm caused to victims when their home—a place where they should feel safe—is taken over by criminals. I know that this view is shared by many parliamentarians from across the House. I pay particular tribute to the right hon. Member for Chingford and Woodford Green (Sir Iain Duncan Smith), who has championed the issue of cuckooing for some years. I also pay tribute to the organisation Justice and Care for all the work that it has done to highlight this particular issue, and recognise our former colleague Holly Lynch, who campaigned on this issue when she was a Member of the House.

Children in particular are often exploited by criminals. By introducing the offence of cuckooing, alongside the new offence of child criminal exploitation, our aim is to improve identification of such children and to strengthen the response for both adult and child victims of exploitation. I want to make clear that we expect the cuckooing offence to be used to pursue the criminals orchestrating the cuckooing, and that the victims of exploitation, including children and vulnerable people, found in properties should be safeguarded—I will say a little more about the role of children in a moment.

Clause 32 outlines that it will be an offence to control a person’s dwelling in connection with specified criminal activity without that person’s consent. The specified criminal activity is set out in schedule 5 to the Bill, reflecting the types of criminal activity that cuckooing is typically used to facilitate, as we were just discussing—for example, drugs offences, sexual offences and offensive weapons offences, among others. The offence will carry a maximum penalty on conviction on indictment of five years’ imprisonment, a fine or both.

Clause 33 provides interpretation of the terms used in clause 32 to clarify what is meant by “dwelling”, “control” and “consent”. Clause 33 also provides examples of how an individual may exercise control over another’s dwelling, including controlling who is able to enter, leave or occupy the dwelling, the delivery of things to the dwelling and the purposes for which the dwelling is used. It should be noted that the person exercising the control does not need to be present in the dwelling, thereby enabling prosecution of gang leaders who are directing the cuckooing from afar.

Clause 33 also sets out that a person cannot consent to control of their dwelling if they are under 18 years old, they do not have the capacity to give consent, they have not been given sufficient information to enable them to make an informed decision, they have not given consent freely or they have withdrawn their consent. The consent of an occupant may not freely be given where it is obtained by coercion, manipulation, deception or other forms of abusive behaviour, taking into account the vulnerability of an individual.

We recognise that criminal gangs may adapt cuckooing to other crime types. Therefore, as I said, clause 34 provides that power for the Home Secretary and for the relevant Ministers in Scotland and Northern Ireland to amend the list of specified offences in schedule 5 to future-proof the offence. Such regulations will be subject to the affirmative procedure, which may help with scrutiny, as mentioned by the hon. Member for Gordon and Buchan.

I will say a few words about the issue of children and cuckooing. Police and stakeholders tell us that children, in particular those exploited by county lines gangs, are used as runners, to deliver drugs to cuckooed properties, and sometimes as sitters, to sell drugs from the properties. It is absolutely right that children who have been exploited and groomed into criminality should be treated first and foremost as victims, as I said a few moments ago. That does not in itself override the age of criminal responsibility, where the law holds children over a certain age to be responsible for their actions. I believe that allowing those two principles to exist alongside each other will provide the best protection and outcomes for vulnerable victims of this terrible crime.

The non-consensual control of someone’s home, the place in which they deserve to feel completely safe and secure, is a cruel and harmful violation. Therefore, where there is evidence that a child has been involved in an offence against, for example, a vulnerable or elderly person, and it is evident that they have chosen to do so and have not been manipulated or coerced, it is right that the police should be able to take action. That does not mean, however, that the police will seek charges against under-18s irrespective of any history of exploitation. I am clear that decisions as to whether to charge someone should be taken on a case-by-case basis. As with all offences, the police have operational discretion, and the Crown Prosecution Service’s public interest test will apply.

We will also issue guidance to support implementation of the cuckooing offence, including on how police should respond and identify exploitation when children are found in connection with cuckooing. As we have previously debated, the Bill provides for the new offence of child criminal exploitation to strengthen the response to perpetrators who groom children into criminality. It is intended to improve identification of, and access to support for, victims.

Amendment 5, which the hon. Member for Frome and East Somerset spoke to, seeks to further define “capacity to consent” as set out in clause 33(5)(b). The amendment would set out that a person lacks capacity to consent to the control of their dwelling for a criminal purpose if they either lack capacity under the Mental Capacity Act 2005 or are in circumstances that

“significantly impair their ability to protect themselves from exploitation.”

I agree it is important that the offence can be used to prosecute perpetrators who have preyed on those who, due to a health condition or wider vulnerabilities, do not have the capacity to provide valid consent. However, I want to clarify that we have intentionally avoided using references to the Mental Capacity Act 2005. We believe that may cause confusion in this context, as that Act is designed to apply in a civil law context and has a central purpose of empowering people whose capacity is called into question, rather than identifying those who lack capacity.

Furthermore, the formulation of the amendment starts from the presumption that a person lacks capacity to consent if they are in circumstances that significantly impair their ability to protect themselves. That may imply that vulnerable people inherently lack capacity, which we think would set an unhelpful precedent. I reassure the Committee that the clause as drafted already allows for a broad interpretation of capacity. Our intention is to provide flexibility for the court to interpret capacity as relating to any impairment that may impact the person’s ability to consent. That could include circumstances where a person is unable to consent to the control of their dwelling for a criminal purpose due to disability, illness and/or the effects of substance misuse. That applies to both permanent and short-term lack of capacity.

Where a person has been subjected to coercion, deception or manipulation and is as a result less able to protect themselves against cuckooing, that is already covered by the definition of consent under clause 33(5), which provides that consent is valid only if freely given and sufficiently informed. As I have already stated, we intend to issue guidance to support the implementation of the offence and will ensure that it covers the issue of consent to assist police in identifying victims and the type of evidence that points towards ability to consent. I hope that, with those reassurances, the hon. Member for Frome and East Somerset will be content not to press the amendment to a vote.

Question put and agreed to.

Clause 32 accordingly ordered to stand part of the Bill.

Schedule 5 agreed to.

Clauses 33 and 34 ordered to stand part of the Bill.

Clause 35

Protections for witnesses, and lifestyle offences

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

[Dame Diana Johnson]

The clause provides for the offences of child criminal exploitation and cuckooing to be designated “lifestyle offences” under the Proceeds of Crime Act 2002, and for victims and witnesses of both offences to be automatically eligible for special measures when giving evidence in court. Child criminal exploitation and cuckooing are abhorrent practices whereby perpetrators exploit vulnerable victims to further their own criminal lifestyle. As such, we want to ensure that special measures are in place to make it easier for victims of these new offences, who are likely to be vulnerable, to give evidence during court proceedings.

Clause 35 therefore amends the Youth Justice and Criminal Evidence Act 1999 to provide for victims of these crimes to be automatically eligible for provisions such as the screening of the witnesses from the accused or giving evidence by video link or in private. Similarly, we want to ensure that perpetrators of child criminal exploitation or cuckooing are not able to profit from the harm that they have caused. Clause 35 therefore amends schedule 2 to the Proceeds of Crime Act 2002 to add both offences to the list of lifestyle offences. This means that when a person is convicted of these offences, their assets will be considered to have potentially derived from crime and may be subject to confiscation.

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[Harriet Cross]

I do not have a specific example, but it is not beyond the realms of possibility. None of what we are dealing with is necessarily a reaction to individual cases. We create law in order to pre-empt things that may happen. It is reasonable for the Opposition to pre-empt something that may happen to ensure that it is considered when drafting a Bill. It is a completely reasonable concern for the Opposition to raise.

Finally, there are concerns about potential for witness protection schemes to undermine the right to a fair trial. If a witness is protected to such an extent that their testimony cannot be scrutinised or cross-examined fully, it could raise issues about the fairness of the trial. Clause 35 does aim, however, to offer much-needed protections for witnesses, particularly those involved in cases of organised crime or serious criminal activity. The inclusion of lifestyle offences recognises the ongoing nature of certain types of criminality, targeting habitual offences and providing opportunities for intervention.

[Dame Diana Johnson]

I am grateful for the very thorough speech that the hon. Member for Gordon and Buchan just made. I am a little concerned that she may have misunderstood what the clause attempts to do, which is to support victims and those who are vulnerable in their ability to give evidence in court, such as by enabling them to give it by video link or behind a screen, because we know that it can be quite intimidating to be in court. As the hon. Lady said, if there are people who victims are concerned or frightened about, and they worry there will be repercussions, then putting in those measures seems to be a sensible way forward.

I have not come across the specific issue with witness protection that the hon. Lady mentioned. She referred to people being relocated and moved away. The provisions within this part of the Bill are reasonable measures to address the vulnerabilities of people who may find themselves subject to child criminal exploitation or cuckooing. We are not doing anything in this clause that goes beyond what is already in place for other vulnerable witnesses in court. It is not doing anything in addition to what is already accepted as good practice for those with vulnerabilities.

Question put and agreed to.

Clause 35 accordingly ordered to stand part of the Bill.

Clause 36

Child sexual abuse image-generators

[Jess Phillips]

I beg to move amendment 11, in clause 36, page 40, line 33, at end insert—

“(3A) In Schedule 4 to the Modern Slavery Act 2015 (offences to which defence in section 45 does not apply), in paragraph 33 (offences under the Sexual Offences Act 2003), after the entry for section 41 insert—

‘section 46A (child sexual abuse image-generators)’.”

This amendment excepts the offence about child sexual abuse image-generators from the defence in section 45 of the Modern Slavery Act 2015.