Police, Crime, Sentencing and Courts Bill

Earl Attlee Excerpts

Committee stage & Lords Hansard part one
Wednesday 20th October 2021 Lords Chamber

[Earl Attlee (Con)]

My Lords, I strongly support these amendments. I too have little confidence in the IOPC and the resources that are available to it. It was very interesting to hear what the noble Lord, Lord Hogan-Howe, said about it. We must shed some light on the timelines for these investigations, both for the police officers and for the alleged victim.

I have been within and have commanded a disciplined organisation, and I was always acutely aware of the need to complete investigations as fast as possible when something had gone wrong. If this amendment does not find favour and the noble Lord needs to return on Report, I can make a very much longer speech then.

[Lord Coaker (Lab)]

My Lords, I am very grateful for the opportunity to speak to Amendment 8, tabled by the noble Lord, Lord Paddick, and of which the noble Baroness, Lady Jones, is a co-signatory. It is an important amendment. I was particularly moved by the comments made by the noble Baroness, reminding us that of course it is from a police officer’s point of view but that this is also about a complainant’s point of view. It is from both sides that this debate has taken place.

Sometimes you look at an amendment and wonder whether it is as important as some others. Listening to the moving opening remarks of the noble Lord, Lord Paddick, and those of the noble Baroness, Lady Jones, and others, I have been struck that this is a crucial amendment and a crucial discussion which is of huge significance to the police, communities and our country, particularly in light of issues that have arisen over the last few months. However, investigations that are delayed and drag on without resolution are completely unacceptable for the complainant and the officer in question.

I was completely unaware and absolutely astonished to hear from the noble Lord, Lord Hogan-Howe, from his experience as a former Commissioner of the Metropolitan Police, that officers under investigation have been waiting for 10 years. Whatever the rights and wrongs of what happened and whether they were guilty or innocent, that cannot be right. This has got to be looked at by the Minister who now has responsibility for this, wherever you come from in the debate. I am sorry if other noble Lords knew this, and that I was the only person here who was unaware of it. I knew that there were delays, but frankly, that is astonishing. We have just had a significant and important debate on protecting the mental health of our officers. One can only imagine the mental health implications for people under investigation but also, as the noble Baroness, Lady Jones, reminded us, for people who have made the complaints. It does not serve justice for anybody.

There is some suggestion about delays in driving cases, but if she knows, can the Minister tell the Committee whether there is a particular delay in one area or a general problem across investigations? The noble Lord, Lord Hogan-Howe, mentioned firearms, and the noble Lord, Lord Paddick, mentioned some other examples, but is there a particular problem which emerges when a complaint is made in a particular area? There have been many references to certain offences not being taken seriously even when complaints were made, but it would be interesting for the Minister to come back to us on that.

I think that, at its heart, this amendment is saying that if we do not get this right, public confidence is undermined and eroded, and it is of no benefit to any of us not to be confident in the system. We must believe that the investigations which take place are fair, operate in a timely manner and are done with that integrity which people can understand and believe. We all accept that. Nobody here would disagree that this is the process which must happen and should be in place. However, as we have heard, that is not happening. Therefore, the amendment rightly asks us whether the answer is to set a time limit, to lay out a process that is better and more effective. The key question for the Minister is: what plans are there to review and update the disciplinary process, to restore public confidence and to reassure all of us that, at the end of the day, not only those who are complained against can feel confident but those who are making the complaint? That is the resolution that we all want from this important amendment.

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Moved by

[Earl Attlee]

9: Clause 2, page 3, line 46, at end insert—
“(3) After section 2 of the Assaults on Emergency Workers (Offences) Act 2018 insert—2A Potting (1) A person commits an offence of potting if the person—(a) maliciously causes an emergency worker to unwillingly or unwittingly come into direct contact with any substance containing urine, excrement or ejaculate,(b) is in custody and causes or permits their own urine or excrement to be intercepted without lawful reason or excuse, or (c) is in custody and causes or permits their own ejaculate to be intercepted without lawful reason or excuse.(2) For the purposes of subsection (1)(a), a substance that looks and smells as if it contains urine or excrement is to be taken to contain such substances.(3) For the purposes of subsection (1)(b), only in exceptional circumstances may the court accept a defence of “lawful reason or excuse” in the absence of evidence of a prior direction by a clinically qualified person.(4) In each and every case where the alleged offence takes place in a custodial environment and the Crown Prosecution Service decide not to prosecute on the grounds of not being in the public interest, the Lord Chancellor must be notified within 28 days of any such decision being made.(5) The Secretary of State must ensure that sufficient suitable kits for collecting evidence samples are available within the Prison Service.(6) A person guilty of an offence to which this section applies is liable—(a) on summary conviction, to imprisonment for a term not exceeding 12 months;(b) on conviction on indictment, to imprisonment for a term not exceeding 2 years.””

[Earl Attlee (Con)]

My Lords, I beg to move Amendment 9 standing in my name and that of the noble Lord, Lord Ponsonby of Shulbrede.

From time to time, it falls on this House and its committees to debate extremely distasteful matters. This will be one of those occasions. However, there are some euphemisms that we can utilise. We can use the term “relevant substance” to mean any substance mentioned in the proposed new Section 2A(1) of the 2018 Act. If we need to be more specific, we can refer to subsections (1)(b) and (1)(c) in the proposed new section. The type of assault in question is generally termed “potting”.

Let us suppose a dedicated and efficient junior official of Her Majesty’s Revenue and Customs is walking down the high street and he or she is assaulted by an aggrieved taxpayer. Suppose the assault is achieved by inverting a bucket containing the relevant substance on his or her head, or alternatively by using what I would call the “custard pie technique”. The Committee will appreciate that the distress caused to the junior official would be off the scale. The victim would be comforted, if that was possible, by the knowledge that the police would regard it as a very serious assault. There is no doubt that the police would go to great lengths to secure the evidence and that the CPS would invariably prosecute if the police produced the necessary evidence. If such an assault occurred, the Committee would expect to see extensive national media coverage, possibly with public statements made by the Home Secretary or the relevant chief constable.

I have to tell the Committee that this type of assault is not unusual in the prison service today, but a thorough investigation and prosecution does not invariably follow. In the event of such an assault, the Committee will completely understand the overriding desire of the prison officer or other victim to immediately get under a shower and wash off every drop of the relevant substance. Unfortunately, this may interfere with the evidence trail.

There are other difficulties associated with bringing the perpetrators of such an assault to justice. First, the police have numerous and conflicting priorities; I am afraid that they are often unable or unwilling to attach much priority to an assault of this type when the victim is a prison officer or governor, and the assault occurs within the secure estate. A further difficulty is that the CPS is apparently not very energetic in prosecuting these cases. Part of the problem may be the evidence trail that I have already referred to.

I should also point out to the Committee that there is a complex criminal infrastructure in most prisons. It can be that the prisoner carrying out the assault has no grievance himself but makes the assault on behalf of others. Often, this is because the prisoner who is “invited” to do the deed has no more time that can be added to his time in custody without being charged with a new offence. He could also be put under considerable pressure by other criminals to commit the offence. The Minister will doubtless correctly tell us that there are existing relevant offences, but without a specific offence, prosecution is less likely.

Furthermore, the existing offences do not catch preparatory acts; that is to say, intercepting the relevant substance. Of course, the person who commits this offence of interception could easily and certainly be identified. My amendment proposes a new offence of potting. It makes it clear that, if the substance looks or smells like the relevant substance, it is that substance. It makes it an offence within the custodial environment for anyone to intercept their own relevant substance, under new subsection (1)(b), with a tightly defined medical exemption. The lawful reason or excuse exemption is less constrained for relevant substances falling under new subsection (1)(c) for obvious and understandable reasons. Proposed new subsection 4 requires the CPS to notify the Lord Chancellor if it is decided not to prosecute on public interest grounds. I would like to make it clear to the Committee that the intention is to make the probability of prosecution and conviction very high, in order to completely deter such assaults.

We ask prison officers, governors and others to look after some of the most mad, bad and sad members of our society. Some, as we know, are just minor offenders, while others are particularly evil, devious and dangerous. We have a retention problem within the prison service; allowing this type of assault to go unpunished must surely have a negative effect on morale and retention. We owe it to those charged with such onerous duties to protect them so far as is possible from assaults of this nature—and indeed from any other. We can discharge our duty by ensuring that there is a high probability of prosecution and conviction for these offences. I beg to move.

[The Lord Bishop of Durham]

My Lords, I will speak to Amendment 11, in the name of my right reverend friend the Bishop of Gloucester, with her permission, as she is sadly unable to be here today. I declare her interest as Anglican bishop of prisons in England and Wales.

This amendment seeks to improve Section 3 of the Assaults on Emergency Workers (Offences) Act 2018 by expanding the definition of “emergency worker” to include all staff working in prisons. All those who work in prisons play a valuable role. However, currently, only officers and some healthcare staff are covered by this legislation and, as such, the risk for others working in prisons is increased, because prisoners are well aware of the more severe consequences of assaulting an officer compared with others working in prisons. Someone described this as effectively painting a target on their backs. This is an unintended consequence of the current legislation, which is unfair to many prison workers, undermines their safety and can be easily dealt with through this amendment.

The work of chaplains, educators and others who work in prisons is essential. They play a crucial role in the well-being and support of prisoners, in the work that underpins successful rehabilitation of offenders, and in maintaining a well-run and ordered prison. Prison chaplains, teachers, instructors and healthcare workers are vital vocations within the justice system. They need support and security to perform their roles well.

This amendment is supported by the Joint Unions in Prisons Alliance, and it has shared disturbing anecdotes from prison workers, as yet unsupported in law as emergency workers. One worker reported:

“Cutbacks in prison officers mean we are at greater risk than ever. I have been working in this environment for 10 years and have never known it so bad.”


Another noted:

“The prison is unsafe despite receiving an urgent notification last year—little has changed. We are running at significantly reduced numbers but there is no order or discipline in the jail. Staff assaults are an almost daily occurrence. One of my nursing staff was severely assaulted in the clinic room and I have a high level of staff receiving counselling due to fears around safety.”


A third said:

“I am a lone instructional officer in a textiles cutting and manufacturing workshop within an immigration removal centre. As a civilian, I don’t receive Control & Restraint training, carry a baton or wear a body-worn camera.”


Prison chaplains share in the front-line care of prisoners, providing pastoral and spiritual comfort. It is shocking that they might be seen as an easy target for physical assault. This is an account from a prison chaplain:

“I was leading some funeral prayers for an 18 year old. He was poorly and had had a hospital place to go to until a more needy child in the community got it. His Aunt Died and he requested funeral prayers. He was edgy as we moved to Chapel and I spent some time settling him before I led him through some prayers. As I was reading Ps23, I saw movement to the side. I remember asking myself ‘What happens if I am assaulted here?’. Momentarily later I was hit side on causing bruising to my face and bruising. I had some concern as I am currently on blood thinners. Staff back up was immediate, I had photographs taken and was taken out to hospital for a check-up. I then went home for the afternoon and returned into work the following day, I wanted to ‘get back on my bike and start pedalling!’. As a Priest Chaplain we speak about ministry through adversary, I can now stand alongside my uniform colleagues who are at risk every day from assault and understand better how to support them, because I have been there.”


Another said:

“As a Christian Chaplain I was assisting a visiting Imam to ensure that Friday Prayers was able to take place. Just as prayers were about to start I was asked by staff to go downstairs and speak to a prisoner who had not brought his ID card and was not therefore being allowed in. My intention was to ask his name and if his name had not already been ticked off on the list, to allow him in. When I arrived at the door the prisoner was extremely angry. He said he did not want to speak to me but would only speak to the Imam. I explained that it was a visiting Imam who would not be able to help him and that he was busy as prayers were about to start. He said that if he was not allowed in he would go back to the wing and ‘start smashing up staff’. I looked around to ascertain the whereabouts of staff and as I turned my head to the right I felt a blow to the left hand side of my head, knocking off my glasses and causing a cut to the side of my nose. He was immediately restrained by staff and taken to the segregation unit. I was attended to by healthcare staff. I remained on duty as the visiting Imam was a friend and I wanted to ensure that all went smoothly and that he was able to get off the premises after prayers.”


This chaplain received excellent care from colleagues working in the prison but should be supported through the law, as an emergency worker.

I would add that, in the last 12 months, I have spoken to two prison chaplains in my own area; one was assaulted and the other explained the fear they now face because of the amount of lone working they find themselves doing and how often there is no one nearby if something were to occur. It cannot be right that some front-line prison workers are protected while others are not.

In conclusion, prisons that are dangerous for staff are dangerous for prisoners too and disrupt the essential task of rehabilitation. Will the Minister give assurance that the Government are committed to making prisons safer working environments for all staff?

[Lord Paddick (LD)]

My Lords, I have Amendment 10 in this group. According to the Times newspaper, in an article dated 10 March this year, Chris Philp MP, the then Parliamentary Under-Secretary of State at the Home Office and Ministry of Justice responsible, according to the article, for sentencing, said that

“detailed research had found that the likelihood of being caught and punished was much more important in discouraging people from committing crime than length of jail sentences.”

Answering a Parliamentary Question about the deterrent effect of longer sentences, he said, again according to the Times:

“The evidence is mixed, although harsher sentencing tends to be associated with limited or no general deterrent effect. Increases in the certainty of apprehension and punishment have consistently been found to have a deterrent effect.”


I subsequently discovered that this was the Answer to a Written Question on 19 February from the Conservative Member for Rother Valley about pet theft—of which more on another day. The Bill certainly is the gift that keeps on giving.

Noble Lords around the Committee will be aware that we on these Benches have consistently said that longer prison sentences do not deter criminals and now, according to the Government, harsher sentences have limited or no deterrent effect. So why do we have Clause 2 in the Bill? Noble Lords may be surprised that, as a former police officer, I am not supportive of this measure. Something needs to be done about assaults on emergency workers, but an increase in the maximum sentence is not what is needed. What is needed is a change in attitude among the general public, in society and in the courts towards assaults on emergency workers in general and on police officers in particular. It appears to me to have become accepted by many that being assaulted is part of the job of a police officer or an emergency worker. But no one should be expected to tolerate abuse or assault because of the work they do, whether they are a Member of Parliament or an emergency worker.

The type of assault covered by this clause is common assault. Anything that causes a significant injury, even if it is not permanent, such as a bruise, can and should result in a charge under Section 47 of the Offences Against the Person Act 1861, for which the maximum term of imprisonment is already five years. We are talking about relatively minor physical harm. Can the Minister tell the Committee how many cases of assault on an emergency worker to date have attracted the current maximum penalty of 12 months in prison—or a sentence of imprisonment at all?

The reason for my amendment, in effect for the Sentencing Council to review its guidance for the existing offence where the existing maximum penalty is 12 months’ imprisonment, is to ensure that the courts and the Crown Prosecution Service reflect the seriousness of this offence in their decision-making, rather than what we see week after week reported on social media, where assaults on emergency workers in general and police officers in particular are treated by the CPS and the courts as part and parcel of the job. That sends a message to criminals and the general public that you can assault emergency workers with impunity, because in court you will be just be given a slap on the wrist—if it even gets that far. What is the point of increasing the maximum penalty for an offence to two years when the Government themselves acknowledge that harsher sentences have little or no deterrent effect and the courts, which can currently send someone to prison for up to 12 months, rarely if ever do so?

The Government may say that in some cases severe penalties can have a deterrent effect—but an increase from one year to two years for an offence often committed in the heat of the moment during the course of a confrontation between a police officer and a member of the public is unlikely to be one of them. Far better that the Government mount a publicity campaign stating that it is completely unacceptable to attack emergency workers who put their lives on the line every day to protect and serve the public, than that they make a minor adjustment to the maximum penalty that is likely to go unnoticed by those it is targeted at, either as a deterrent or in court following conviction, unless there is a significant change in the attitude of judges, prompted by a change in the sentencing guidelines.

On Amendment 11, proposed by the right reverend Prelate the Bishop of Gloucester, clearly, prison officers are as vital a uniformed force as police, fire and rescue services, the ambulance service and the coastguard, and they are afforded similar protection. I quite understand how others working in prisons feel that they are more vulnerable and, as the right reverend Prelate said, they feel they have a target on their back because they are excluded. He gave the appalling example of an assault on a prison chaplain that resulted in bruising to the chaplain. But, again, I say that that offence could have been prosecuted under Section 47, where there is an even greater penalty available than for an assault on an emergency worker. So we are not supportive of the increase.

On Amendment 9, in the name of the noble Earl, Lord Attlee, of course, if such substances are actually thrown at a prison officer or other emergency worker, it would amount to assault and therefore it would be covered by existing legislation around assaults on emergency workers, with a similar penalty to the one the noble Earl is proposing in his amendment. So we feel that there needs to be a change in attitude towards the apparent acceptability of assaults on emergency workers, rather than simply a cosmetic increase in the maximum penalty.

[Earl Attlee (Con)]

My Lords, I think the noble Lord and I are in agreement that the problem is that we are not prosecuting these offences, rather than the outcome in the courts. Because, for the prisoners, it may be that even another three-month penalty for my new offence would be enough to deter them—or, using the existing penalties, as the noble Lord said, it is the probability of being prosecuted that matters.

[Lord Bach (Lab)]

My Lords, of course we want to change attitudes and that is what we must try to do, however long it takes us, but I have to say, from my experience over five years as a police and crime commissioner—I am sorry to keep on about this—this wrong seems to have increased on a fairly enormous scale. That is only anecdotal, but the truth is that many more of those who are about to be arrested seem to think that it is okay to have a go at the police in order not to get arrested. That seems to me to be very unfortunate, and it is going to take a long time before it changes. It puts the police, and obviously other emergency workers, in a nearly impossible position sometimes—and when I talk about the police, I am really referring to other emergency workers as well.

Like the noble Lord, Lord Paddick, I do not want to see higher sentences for the sake of higher sentences, and I do think that their effect is often very limited, but I have to say—it seems odd, coming from these Benches, I suppose—that I have a certain sympathy with the Government here, because it seems to me that the position has to be dealt with immediately in some way, and one of the purposes of raising the maximum sentence available is to try, in the best possible way, to convince the courts that this is a more serious offence than sometimes they think it is. It is not always minor, I am afraid—sometimes it is undercharged—but it is a really serious problem that every emergency worker, and in particular every police officer, faces every time he or she makes an arrest, and I do not blame the Government for wanting to do something about it.

I am not saying it will be very successful; I think it is a much wider societal problem. But I do think it is something the Government are entitled to at least think about in this way. I do not say that with any happiness at all, but to claim that it is not a real problem is just untrue: it is a real, everyday problem.

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[Lord Wolfson of Tredegar (Con)]

I think I made it clear earlier that I was making two points in response to this amendment. The point that we are focused on at the moment is whether we could have more—and I say this respectfully—felicitous drafting than the drafting of the amendment that we currently have. I have accepted in principle that one could, and I made that clear in my previous answer and my answer to the right reverend Prelate. However, I do not want us to lose sight of my first response, on the point of principle: we have a definition in the 2018 Act of “emergency worker”, and that was regarded in 2018 as suitable and fit for purpose. It treated that definition as a separate status and a distinct group, and the Government’s position is that definition was good in 2018 and remains so now.

[Earl Attlee (Con)]

My Lords, I am grateful to all noble Lords who have taken part in this debate. On Amendment 11 from the right reverend Prelate, I am aware of the problem that he describes, but I did not make my new offence cover other Prison Service staff. I deliberately excluded probation officers just for reasons of simplicity, but if I managed to make my potting amendment find favour with the House, I would have to decide who was to be protected by it.

I am slightly disappointed by my noble friend’s response, because I thought that I was offering him the best thing since sliced bread, but he turned me down. The problem for the Minister running the Prison Service is that he cannot direct the police force to investigate these issues and, as he carefully explained to the Committee, he cannot direct the Crown Prosecution Service to pay greater attention to these offences either. My noble friend has no tools to protect prison officers—so I suspect that the Prison Officers’ Association will be a little bit disappointed with his approach.

I think we identified the underlying issue, which is the probability of being prosecuted for these sorts of these offences, and we need to have another look at that. I shall, of course, withdraw my amendment, subject to the usual caveats and discussions with the Opposition Front Bench.

Amendment 9 withdrawn.