Jess Phillips
Main Page: Jess Phillips (Labour - Birmingham Yardley)Department Debates - View all Jess Phillips's debates with the Home Office
Criminal Justice Bill (Second sitting)
Jess Phillips ExcerptsTuesday 12th December 2023
(2 years, 8 months ago)
Public Bill CommitteesRead Full debate Criminal Justice Bill 2023-24 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 12 December 2023 - (12 Dec 2023)
Jess Phillips (Birmingham, Yardley) (Lab)
Q
Harvey Redgrave: No, it needs to be attached to more resourcing.
Jess Phillips
Q
Harvey Redgrave: I am assuming there is an impact assessment and a cost that has been attached to the Bill.
Jess Phillips
Q
Harvey Redgrave: I do not think it would be able to happen if you took current resource levels as the baseline. Some piloting is already going on in some forces, I think. I do not know how much of that has been allocated in future years.
Jess Phillips
Q
Harvey Redgrave: No. It is a good step forward, but not sufficient.
Jess Phillips
Q
Harvey Redgrave: I would agree, yes.
Jess Phillips
Q
Harvey Redgrave: Sorry—I would agree with the premise of your question.
Jess Phillips
Q
Harvey Redgrave: If I could also add one further thing on violence against women and girls—
Jess Phillips
Please feel free.
Harvey Redgrave: One of the good developments that has taken place in the last couple of years is Betsy Stanko’s work on rape and Operation Soteria, which is now being rolled out across the country. As you know, it takes a new approach to the way that rape is investigated. There is a very good case for widening that to look at all violence against women and girls, because some of the same principles apply. I would look very closely at whether that requires legislation, and if it does not, at what is required to broaden that approach.
Jess Phillips
Q
Harvey Redgrave: Potentially.
Vicky Ford (Chelmsford) (Con)
Q
Rebecca Bryant: Yes, it is.
Jess Phillips
Q
Andy Marsh: Yes, I do. That is a periodic hard stop, let us say, where there is a full review, but there should be a number of different control measures, both automated data searches and a duty—a responsibility to report and self-report—that will occur in real time between those vetting periods.
Jess Phillips
Q
Andy Marsh: Whichever timeframe you chose, you could see reasons why it wouldn’t be right.
Jess Phillips
Q
Andy Marsh: Ten years is the current one. I think to change that without massively increasing the capacity of vetting units would be to, let us say, write a cheque they couldn’t cash.
Jess Phillips
Q
Andy Marsh: If you were to legislate then the police would have to find the money, and it is often—
Jess Phillips
Q
Andy Marsh: I would say, “What is the best way of ensuring a trusted, ethical workforce that actually is enforcing highly frequent—I would debate highly frequent—more frequent, hard-stop vettings which would be very costly, with back-office capability?” That might, in my opinion, not be the best way of doing it. I would rather move to a more agile, 21st-century—
Jess Phillips
Database, AI and so on.
Andy Marsh: Yes. So many of the searches that are required for vetting can be put into robotic processes, with ultimately the human being making the decision at the end.
Jess Phillips
Q
Andy Marsh: To directly answer your question, I don’t know. Possibly not.
Jess Phillips
The answer is no. I do know.
Andy Marsh: But actually, if you had a multiple domestic abuser, I am pretty confident that they would be flagging on other systems.
Jess Phillips
Q
Andy Marsh: Excepting that.
Jess Phillips
Okay. Excepting the four in five that don’t come forward.
Andy Marsh: I take your point.
Jess Phillips
Q
Andy Marsh: Yes.
Jess Phillips
Q
Andy Marsh: Will you permit me a little commentary, rather than a yes to that?
Jess Phillips
Go for it, mate.
Andy Marsh: I will tell you an anecdote, which I think will explain why this is dangerous. People can use the police complaints system for reasons other than simply securing justice and fairness for having been treated unfairly. As chief constable of Avon and Somerset, I became aware of two reports that I had in fact—and you will be shocked by this—raped the police and crime commissioner, Sue Mountstevens. I certainly had not, and the lady reporting that was in a mental ill health institution, but the crime recording rules required the police force to record that there was a rape, and I was named as a suspect. I would have thought that it would be farcical, wouldn’t it, for me to be suspended under such circumstances, given that there was not a grain of truth in that? There is a danger—
Jess Phillips
Q
Andy Marsh: Fairness and justice are for everyone, particularly victims of violence against women and girls; if you look at everything I have said and done in my career, you will see that that is what I genuinely believe. However, I believe that an automatic suspension would be swinging the pendulum way too far. I have given you a very simple example, which is of course ridiculous. What I have learned through 37 years in policing is that there are many, many different shades of ambiguity around situations.
Jess Phillips
Q
Andy Marsh: That is shocking and disgraceful, and it should never have been allowed to happen.
Jess Phillips
Q
Andy Marsh: In the circumstances that you just described, of course. But I will say to this Committee that I think each case should be treated on its merits, with a very low threshold for suspension.
Jess Phillips
Q
Andy Marsh: I can write to you with that information, but I am afraid that I do not have it to hand.
Jess Phillips
Q
Andy Marsh: I do not think I said that I was confident that all the powers in the Bill could be implemented. I was answering the question about traceable property and the power to gain entry—that was the element that I was confident about.
Jess Phillips
Q
Andy Marsh: I am supportive of the measures in the Bill. Some will undoubtedly come with a requirement to increase the resource.
Jess Phillips
Such as?
Andy Marsh: The drugs testing would be a good example. I do not believe that there is currently a latent capacity waiting to do that.
Jess Phillips
There is currently not the capacity available to do that.
Andy Marsh: No.
Mark Garnier (Wyre Forest) (Con)
Q
Andy Marsh: Well since you make the observation, I am not sure, as a police officer, that most police officers would agree that the standards of conduct in Parliament are necessarily higher than the standards of conduct for a police officer—if you don’t mind me saying.
Jess Phillips
Q
Dame Vera Baird: No.
Jess Phillips
Q
Dame Vera Baird: I think it is a good piece of flag waving, and it ought to be something that ups the attention of the relevant parties. A lot of people do not get protected sufficiently by MAPPA.
Jess Phillips
Q
Dame Vera Baird: I do not know about the numbers, but it is not a foolproof system. When it works, it works well, I think, and it can be quite subtly tuned for particular kinds of offender. But I do not know that it works so well with domestic abuse generally. In fact, what does?
Jess Phillips
Q
Dame Vera Baird: I hope so. It is pretty straightforward. It started off with a nice private Member’s Bill, and it was good for upskirting, but it was very taken with the intention of the individual. Taking a photograph and upskirting—frankly, if you do it, it is a crime, I would have thought. Struggling to find out whether they had done it for their own sexual benefit or to sell it online or whatever: I do not think that matters. I think the Law Commission have got to, “If you do it at all—make an intimate image—it’s an offence. If you do it with that intention, it’s worse. If you do it with this intention, it’s worse,” and that looks as if it works well.
I do not know why deepfake is not banned. Everybody knows what that is. The Minister will tell me there is a Standing Order going through. You just gave me a shocked look. Deepfake is not in the Bill, is it?
Jess Phillips
No, deepfake is not in it.
Dame Vera Baird: So that is where you could have possibly even a performative person doing deliberately provocative, maybe naked actions. You can take their face off, put mine on instead and put that online. That is dreadfully, dreadfully damaging—every bit as much, possibly more, because of the potential bravado of the act, which would then be blamed on you. That needs making unlawful, and it needs dealing with.
The other problem is that there are no orders to get rid of the stuff that is online already. I asked Penney Lewis—who is coming presently, so she will tell you—why they did not try to tackle the question of taking down stuff. She said that their terms of reference relate to criminality, not the civil orders. My view is that there should be a new look at that, because the pain of being a victim of intimate images is knowing that they are online.
There is a heroic academic at Durham called Professor Clare McGlynn who has done a huge amount of work on this. The impact on somebody of knowing that there is a naked picture of them somewhere online makes them withdraw: they cannot face anybody new, because they think that inevitably they must have seen them online and will have a poor view of them. That is how it gets internalised.
So it is urgent. If the Law Commission was not asked to look at taking stuff down, which I understand is done effectively in Canada, it should be asked to look at it again, or you must find another mechanism for it. The pain is from knowing that it is still up.
Jess Phillips
Q
Dame Vera Baird: Now that I understand that the mitigation relating to being coercively controlled will go into law, at least at a lower level—although I do think it should be in this statute—I am less worried. There is some possibility, isn’t there, if it is about murder or manslaughter, because a lot of victims who have been coercively controlled and strike back are convicted of manslaughter—
Jess Phillips
Losing their parental responsibility, you mean?
Dame Vera Baird: Yes. That would be a woman who had been persecuted. You are talking about sex offences?
Jess Phillips
Yes, specifically sex offences. That bit of law is in the Victims and Prisoners Bill—the law on murder and manslaughter, which I believe has some carve-out. Not to inform the Minister of this, but that is the reason why it is going through the Lords today: the carve-out, which is in that Bill, not this one. But what I was talking about was a proposal to take parental responsibility away from men convicted of sexual offences against children.
Dame Vera Baird: I am less convinced by that, because the definition of a sexual offence may be quite a wide one. I think it needs some reflection. I appreciate that if there is a sexual risk order, you can have a man who is banned from being in touch with all children except his own.
Jess Phillips
I think that’s the problem.
Dame Vera Baird: That is the point, so it needs tackling. But just sex offences—does it apply to flashers or people online? I do not know. I think it probably needs tuning a bit.
Jess Phillips
Q
Dame Vera Baird: It is long overdue to be decriminalised, as it is in Northern Ireland. This Parliament decriminalised it in Northern Ireland. Why on earth is it still a criminal offence to do what is a tragic thing that nobody wants to do, and have a late abortion? The last time the offence was in play was quite recently: it was about six months ago. The Court of Appeal was amazingly benevolent towards the woman and accepted entirely that she needed support, not criminalisation. The Court of Appeal seems to be ahead of this Parliament on that at the moment. You used to have women from Northern Ireland coming over here for help with abortion; now, women from here go over to Northern Ireland to avoid the risk of criminalisation if they are a week late. It is quite odd.
The Chair
As there are no further questions, may I thank you, Dame Vera, for your evidence? We will move on to the next panel.
Examination of Witness
Jonathan Hall KC gave evidence.
Jess Phillips
Q
Professor Lewis: Missing from the projects that are implemented or missing from other projects?
Jess Phillips
Q
Professor Lewis: No. We are still awaiting a Government response on the vast majority of our recommendations in the hate crime report.
Jess Phillips
For example, women—
Professor Lewis: No, that is the one they responded to, because we recommended that sex or gender not be added for the purposes of aggravated offences or enhanced sentencing. You may remember that there was a statutory requirement for the Government to respond to that, and they responded accepting our recommendation not to add it. They have not responded to the rest of the recommendations, including our recommendation that there should be an offence of stirring up hatred on the basis of sex or gender as well as equalising the treatment of all the other protected characteristics in relation to stirring up hatred.
Jess Phillips
Q
Professor Lewis: I cannot comment on whether it could have been in the Bill.
Jess Phillips
You can put anything in it if you want— I am going to.
Professor Lewis: It is not in the Bill, and we await a response from the Government on the vast majority of our recommendations.
Jess Phillips
Q
Professor Lewis: I have to accept—in fact, I am pleased to accept—that in terms of projects that I have worked on, more than half of them have been implemented in the last year. The implementation rate of Law Commission criminal law projects at the moment is—
Jess Phillips
That is good to hear.
Professor Lewis: We are really pleased to be able to work with the Government to implement our recommendations in so many projects; I think it is five in the last year.
Jess Phillips
Q
Professor Lewis: Compensation for victims is a really important issue and one of the things that we recommended in the confiscation project, because compensation was not part of that project directly, is that there needs to be a separate review of compensation for victims.
None the less, we made recommendations where there is overlap. For example, we described it as giving priority to the payment of compensation. We recommended that where a compensation order is imposed at the same time as a confiscation order, the Crown court should be required to direct that compensation should be paid from the sums recovered under the confiscation order. At the moment, that happens only if the defendant does not have enough money to pay both orders, but we recommended that, even if the defendant does have enough money, the first lot of money should go on compensation.
Similarly, when multiple confiscation orders are imposed, priority should be given to the payment of compensation and after that to the confiscation orders. Paragraph 11 of schedule 4 basically implements those recommendations, saying that the court “must direct” that
“sums recovered under the confiscation order”
be applied to “ priority order (or orders)”. Priority orders are defined in the Proceeds of Crime Act 2002 as including compensation orders. Therefore, although you may not see the word “compensation” in that paragraph, it very much is in there, and the paragraph prioritises the application of funds to victims, whether that means that you as an individual victim are seeking compensation funds—
Jess Phillips
Q
Professor Lewis: Yes.
The Chair
Thank you very much. That brings us to the end of the time allotted for the Committee to ask questions. On behalf of the Committee, I thank the witness for the time that she has given us today.
Ordered, That further consideration be now adjourned. —(Scott Mann.)
Jess Phillips
Main Page: Jess Phillips (Labour - Birmingham Yardley)Department Debates - View all Jess Phillips's debates with the Home Office
Criminal Justice Bill (Fifth sitting)
Jess Phillips ExcerptsThursday 11th January 2024
(2 years, 7 months ago)
Public Bill CommitteesRead Full debate Criminal Justice Bill 2023-24 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 11 January 2024 - (11 Jan 2024)
Chris Philp
As we have discussed, clauses 1 to 4 introduce new offences to criminalise the importation, manufacture, modification, supply, offer to supply and possession of particular articles used in serious and organised crime. They currently apply to England and Wales only, but after consultation with the devolved Administrations in Scotland and Northern Ireland, the Government tabled amendments 14 to 22 and 41 to extend the criminal offences to the whole of the UK. This follows a request from the devolved Administrations, which we are happy to agree to.
Clause 2 contains a delegated power for the Secretary of State to amend the list of items covered by the clause. At the outset, we cover the templates for 3D-printed firearms, pill presses and concealed compartments. This creates a power, using an affirmative statutory instrument that is subject to full parliamentary scrutiny, to add additional items as we become aware of them. It is impossible for us sitting here to foresee or anticipate what items criminals may come up with in the future, so it is important to have this power to future-proof against criminal innovation.
The practical effect of amendments 40, 44 and 49 is to add these offences to the Proceeds of Crime Act 2002, which means that when a person is found guilty of an offence, they will automatically be considered guilty of having a criminal lifestyle when the court is making a confiscation order. I am sure that the Committee will agree that when someone is involved in serious criminal activity, we would want the proceeds of that criminal activity, particularly if it is serious organised crime, to fall into the scope of the POCA regime. I have already mentioned the items included, which are listed in clause 2, and I have also referenced the affirmative statutory instrument process for adding additional items in the future.
On clause 3, it is important that we include measures on vehicle theft in the Bill. I am sure that all of us have been contacted by constituents who are concerned about their cars being stolen, particularly from their home address. Criminals do that using various forms of technology that enable them to either pick up the signal from a key fob, or hack into a vehicle’s control system, disable the immobiliser, and activate and unlock the vehicle. They then drive off. Unfortunately, that is relatively prevalent.
There are things that constituents can do, such as put their key fob into a so-called Faraday bag—a little bag with an iron mesh around it—but that could be stolen. More modern vehicles, particularly in the past two or three years, have better security measures. Nonetheless, we parliamentarians want to do everything we can to prevent this kind of technology falling into criminal hands. That is why we are providing for two new criminal offences relating to vehicle theft using electronic devices such as signal jammers, but there are others also. The first offence criminalises possession of those devices, and the second criminalises importing, making, adapting, supplying or offering to supply those devices.
Jess Phillips (Birmingham, Yardley) (Lab)
I might be showing my entire ignorance of signal jammers, but is there no other use for these bits of technology? I can see whether there is when it comes to stamping things on pills and plans to build a gun on a 3D printer, but my ignorance about signal jammers means that I do not know whether there is another use for them.
Chris Philp
I thank the hon. Lady for that very good question. These two offences require a reasonable suspicion that the device will be used in connection with vehicle theft. The judge or the jury, depending on whether we are talking about magistrates court or the Crown court, have to be satisfied there is a reasonable suspicion that that is what the device will be used for. It is important that the police have the powers to arrest and prosecute people involved in this kind of activity. The offences should help a great deal in stopping these electronic devices getting into criminal hands.
We have talked a little bit about the evidential burden of proof in clause 4, and I will not rehearse those points at great length, in the interests of Committee members’ patience and time. As many of the articles that we are talking about can be used only for criminal purposes, it is reasonable to construct the clause this way. Members of the Committee will recall that we took evidence on this issue from a number of people in law enforcement, including Graeme Biggar, the director general of the National Crime Agency. Law enforcement—both territorial policing and the NCA—strongly welcomes these measures as strengthening the police’s armoury in the fight against organised crime. Through this regulation-making power, Ministers and Parliament will be able to keep up with changes in technology, which is extremely important given how fast technology is moving these days.
Chris Philp
It is not reliant on that. It is simply that the data does not exist. The chief inspector of constabulary Andy Cooke said in his state of policing report last June that we are arguably safer than we have ever been before. If we look at the crime types for which we do have continuous data going back to 2010 and before—such as burglary, robbery, the vehicle theft figures that the shadow Minister himself quoted recently, violent and seriously violent crime—we see that all of those individual crime types have fallen dramatically.
Chris Philp
In a moment. Bicycle theft is down by 39%, vehicle crime by about 50%, and violent crime by around 50%. It is not the case that some sort of artifice going on and that if we added fraud, that would paint a different picture. Whichever crime type we look at, we see that it is going down according to the crime survey. We all know why police reported crime sometimes shows different trends. It is because the police are being driven by—we are getting a bit off topic here, so I am probably going to get told off in a minute.
Chris Philp
Yes. There is probably another time to debate this point, and perhaps now is a good moment to give way to the hon. Member for Birmingham, Yardley.
Jess Phillips
I think I am at risk of offending you in the Chair, Dame Angela, but may I have the data for whether rape, child abuse or domestic violence have gone up or down?
The Chair
I have been quite lax because I prefer a free-wheeling debate in Committee. It is important that people are allowed to make arguments in a slightly wider way, but we still have to stay in order. I was happy to listen to the fraud debate, given the clauses we are debating, but let us get back to order.
Jess Phillips
Main Page: Jess Phillips (Labour - Birmingham Yardley)Department Debates - View all Jess Phillips's debates with the Home Office
Criminal Justice Bill (Sixth sitting)
Jess Phillips ExcerptsThursday 11th January 2024
(2 years, 7 months ago)
Public Bill CommitteesRead Full debate Criminal Justice Bill 2023-24 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 11 January 2024 - (11 Jan 2024)
Jess Phillips (Birmingham, Yardley) (Lab)
I missed Clare Wade’s evidence because I was unwell when she gave evidence to this Committee. Are we to assume that the clause will be used in the prosecution of cases where self-harm is caused by incidents within domestic abuse relationships or as a result of grooming, sexual violence and broader violence against women? I think that it was clarified during the evidence session that that was the case.
Laura Farris
I thank the hon. Lady for her question. It is quite clear that Parliament’s intention, in the way that we are framing the clause, and how the clause might actually play out when it comes before the courts, are probably quite different. I have been thinking about that myself. This is very much an extension of what I may call—I hope you will forgive me if I use this as a shorthand—the “Molly Russell” principle, which was established by that tragic case and led to all the new principles of the Online Safety Act—bringing them into line with the offline environment.
However, I think that you are quite correct; when we read clause 11, we see that it belongs in a range of different circumstances, all of which I have thought through. Yes, I think that you are right to say that it could very easily exist within a domestic—
Laura Farris
My apologies. I am sorry for being too informal; I am not familiar with this. I think that it is the case that the issue is readily identifiable within certain forms of domestic abuse scenario, and that the clause would apply in those circumstances. It is obvious in the statutory language.
Jess Phillips
I will speak more broadly about the issue in a moment, and I am pleased to hear what the Minister has said; that is what we would all want to see. However, I am concerned about the each-way offences that the Minister outlined. Let us say that in a case of suicide a coroner found that domestic abuse had been involved—I mean, chance would be a fine thing in most cases—and a manslaughter charge was laid and then the perpetrator pled guilty. There has only been one case of this. I just wonder how these summary limits and these each-way offences would work in that situation.
Laura Farris
I thank the hon. Lady again for her question. Actually, I think that we would have to concede immediately that it would be on the charge sheet. However, the hon. Lady has raised the topical, important and very difficult issue of whether or not a domestic abuse perpetrator has elicited suicide in circumstances where, as she will know, there are evidential difficulties. There is a discussion happening within Parliament, and more widely within the legal profession, about the offence of manslaughter and its ambit when it takes place in the context of suicide.
Perhaps I can reassure the hon. Lady, though, by saying this: if we stop short of suicide—very much mindful of the fact that that engages quite difficult legal issues—and we think about the offences created under clause 11, I think that it is almost inconceivable that there would be a circumstance in which a clause 11 offence existed and was not accompanied by an offence of coercive control under the Domestic Abuse Act 2021. I just do not think that, in a domestic abuse context, those two things would not exist in parallel. Therefore I think that we would already be looking at a more serious form of sentencing if we were into an “eliciting self-harm” clause 11 offence. It would also be automatically brought under the ambit of the Domestic Abuse Act, and it is already a more serious offence in that context.
Clause 12 is the facilitation element of the offence, and subsection (1) provides that anyone who arranges for somebody else to do an act capable of amounting to inducing self-harm is also committing an equivalent offence. Subsection (2) provides that an act can be capable of encouraging or assisting self-harm even when done in circumstances where it was impossible for the final act to be performed. For example, if pills were provided to a person and they ended up not to be the pills that were intended, it is exactly the same offence. Equally, if something harmful was sent by post but never arrived, the offence and sentence are the same irrespective.
Subsection (3) provides that an internet service provider does not commit the offence merely by providing a means through which others can send, transmit or publish content capable of encouraging or assisting serious self- harm. Subsection (5) provides that section 184 of the Online Safety Act 2023 is repealed in consequence of these provisions, which create a much broader basis, bringing the online and offline environments into parity.
Jess Phillips
The Minister and I have had some back and forth on this. I rise really to hammer home the point regarding the good intentions of the clause, but the need to think about it in the context of a domestic abuse, grooming or sexual violence situation. It is undoubted in any professional’s mind that one of the consequences of violence, abuse and coercion against an individual, specifically in young women, is self-harm and suicide.
As the Minister rightly says, it is important that we recognise that in the vast majority of cases self-harm falls short of suicide. There is a huge amount of self-harm going on across the country, genuinely encouraged as a pattern of domestic abuse, and we need to ensure that this piece of perfectly reasonable legislation, which was designed for those on the internet trying to get people to be anorexic and all of that heinous stuff, which we are all very glad to have not had to put up with in our childhood—I look around to make sure that we are all of a relatively similar age—also covers that.
There is one particular risk: how does the clause interact with institutions? Perhaps the Minister could assist me with that. The Minister for Crime, Policing and Fire, a Home Office Minister, is sat in front of me. I was a few minutes late for the sitting this morning because I was in court with one of my constituents in a case—I am afraid to say—where we were on the other side from the Home Office. My constituent literally had to take medication during the court proceedings, such is the mental health trauma that has been caused to her by the Home Office. I wonder how this piece of legislation might be used. I suppose I worry that there is too much opportunity for it to become useful, in that there are so many ways in which institutions and individuals cause people to end up in a self-harm and suicidal situation. I seek clarity on that, unless Ministers wish to be found wanting by the Bill.
Alex Norris
I commend my hon. Friend the Member for Birmingham, Yardley for offering a powerful dose of reality about what is happening and the risks. We know that abusers will find every possible gap and try to use them to perpetrate their abuse and these heinous crimes. We must follow them and close those gaps the best we can—or, even better, get ahead.
Clauses 11 and 12 make good the recommendations of the Law Commission in its 2021 “Modernising Communications Offences” report. The Minister described that as important and I echo her comments. The clauses also finish what was started during consideration of the Online Safety Bill. We supported it at that point, and the Bill was well scrutinised, so I will not rehash that debate.
The Government amendments extend the provisions to Northern Ireland. I wonder whether there is a different story about Scotland, because most of the Government amendments expand provisions to Scotland as well as to Northern Ireland. I would be interested in the Minister’s comments on that.
I will finish on the point that my hon. Friend the Member for Birmingham, Yardley made about institutions. Throughout my time in Parliament, the issue of conversion therapies has been at the forefront. We wish that we were getting on with banning them today—goodness knows how much longer we will have to wait—but we know that very harmful self-harm practices can be part of those therapies. Will the Minister say, in responding to my hon. Friend the Member for Birmingham, Yardley, how accountability will fall in cases like that? That is important; if there is a gap for a certain organisation, perhaps we need to return to this. It might be that we will be assisted by the provision in clause 14 that, where a significant senior person in an organisation commits a crime, the organisation can be held accountable. Perhaps that is the way to close the gap—I do not know. I will be interested in the Minister’s view.
Laura Farris
Well, okay, but I struggle to conceive of circumstances, other than very unusual and extreme ones, where it would be said that a statutory body was doing an act with the intention of eliciting the consequence of self-harm. Anyway, the point has been made and I have responded to it. I know the hon. Lady’s case is an emotive one.
Jess Phillips
I am not going to talk about my case, but with regard to the charge sheet, coercive control legislation does not currently cover adults who are sexually exploited in grooming situations. In the case of a woman who is sexually exploited by an adult, like the woman I was with this morning, coercive control legislation does not apply. However, self-harm—I mean, I am going to say that literally being forced to be raped by 20 men a day is self-harm—is absolutely part of the pattern of coercion and abuse that those people suffer, so we would assume that adult-groomers would be covered by the Bill.
Laura Farris
I thank the hon. Lady for her intervention. I think a very helpful fabric of possible scenarios has been identified this afternoon. I simply say that in the different circumstances that she has just outlined, there are different criminal offences that would also apply. My simple point is that a case of the nature that she has described would not be confined to a section 11 offence under the Criminal Justice Act 2024, as I hope it will become in due course; there would be a range of serious criminality connected to that.
Jess Phillips
There isn’t. I hope, as the Minister hopes, that there will be by the time we have got to the end of our scrutiny of the Bill, but there is no crime of grooming adults in sexual exploitation; that exists only for children as an aggravating factor in offences. I suppose pimping legislation would not count in the case I mentioned if self-harm was caused. I do not think there are other bits of legislation for adult victims of sexual exploitation.
The Chair
Order. We are having a very important and thoughtful debate, but can we please try to observe the normal procedures so that Hansard colleagues, and those who are watching, can catch all of the proceedings?
Laura Farris
The clause is the latest in a sequence of legislation dealing with intimate image abuse. People may correct me if I am wrong, but I think I am right to say that we have not dealt with intimate image abuse until this Parliament. The first time it hit the statute book properly was the Domestic Abuse Act 2021. I think it is also right to say that, as a Parliament, we have framed it correctly as something that is more often than not just another ugly incarnation of coercive control. It is highly intrusive, humiliating and distressing conduct.
In November 2022, following the passage of the Domestic Abuse Act, the Government announced their intention to create a suite of new offences to deal with intimate image abuse, closely based on the Law Commission’s recommendations in its July 2022 report. Under the Online Safety Act 2023—I hope the Committee will not mind if I spend a moment on the chronology and the legislative journey on intimate image abuse—the Government repealed the offences of disclosing or threatening to disclose private sexual images, replacing them with four new offences of sharing or threatening to share intimate images.
The Bill goes further to tackle the taking of intimate images without consent, and the process of installing equipment for that purpose. First, it repeals two voyeurism offences related to voyeurism of a private act and taking images under a person’s clothing, for which we use the shorthand “upskirting”—although that precedes the life of this Parliament, so I am wrong about that. Anyway, both those offences are reasonably new and have resulted in amendments to the Sexual Offences Act 2003. The Bill will replace them with new criminal offences to tackle the taking or recording of intimate images without consent and the installing of equipment for such purposes.
Those taking offences build on the sharing offences identified in the Online Safety Act to provide a unified package of offences using the same definitions and core elements. That addresses the criticism that there was previously a patchwork of protection, which the police told us led to gaps in provision when it came to this type of behaviour. I pay tribute to my right hon. Friend the Member for Basingstoke (Dame Maria Miller), who is not a member of the Committee. She has done a lot of work on the issue, and identified this problem in particular. As we know, one of the issues was proving intent.
I am grateful to the Law Commission for its work. It consulted widely with the police, prosecutors and legal practitioners, so we could not only read its report, but hear from a range of experts, including those supporting and campaigning on behalf of victims, and others who are far more knowledgeable than any of us.
The clause will insert a suite of new provisions after section 66 of the 2003 Act. The clause will create three new offences: the taking or recording of an intimate photograph or film without consent; and two new offences about installing equipment to enable a taking offence. I will go through them briefly.
The first provision of the clause is the creation of what we call a base offence of taking any intentional image of a person in an intimate state without their consent. That amounts to what we will call a section 66AA offence. It removes the requirement for a reason or motive. It does not matter if the person was doing it for a joke or for financial payment, or even if their reason was not particularly sinister. The base offence would be met if those elements were established. The offence is triable summarily only and will attract a maximum prison term of six months.
The wording of the two more serious offences mirrors some of the language that we are familiar with; the offences refer not just to “intentionally” taking an image, including of a person in an intimate state without their consent, but to having the intent of causing them “alarm, distress or humiliation”, or taking the image for the purpose of “obtaining sexual gratification” for themselves or another person. The offences are serious and carry a maximum sentence of two years. The three offences are designed to achieve the right balance between the protection of the victim and the avoidance of any over-criminalisation. I will return to that when I speak to new clause 20, tabled by the hon. Member for Birmingham, Yardley.
The base taking offence is subject to a defence of reasonable excuse, such as a police officer taking an image without consent for purposes connected with criminal proceedings. Similarly, a base sharing offence is subject to the defence of reasonable excuse; for example, images taken for the purpose of a child’s medical treatment would meet that threshold, even if the victim was distressed by that. There is another exemption—I do not know who came up with this example, but it is a good one—if the image is taken in a public place and the person shown in the image is in the intimate state voluntarily. A distinction is therefore drawn between, for example, a photo of a streaker at a football match, and that of someone who had a reasonable expectation of privacy; that would relate to upskirting, for example.
We are also creating two offences to do with the installation of spycams, which I am afraid we see more and more of in cases going through the courts: an offence of installing, adapting, preparing or maintaining equipment with the intention of taking or recording intimate photograph or film; and an offence of supplying for that purpose. To be clear, it will not be necessary for the image to have been taken; if equipment was installed for that purpose, that is enough to meet the requirements of the offence.
Overall, the clause amends the Sexual Offences Act 2003 to ensure that notification requirements can be applied, where the relevant criteria are met, to those convicted of the new offence of taking for sexual gratification and installing with the intent to enable the commission of that offence. I commend the clause to the Committee. I will respond to the new clause later.
Jess Phillips
I will be brief. New clause 20 would extend the definition of “intimate image” to include specific categories of image that may be considered intimate by particular religious or cultural groups—for example, instances of a person not wearing modesty clothing such as a hijab or niqab when they would normally do so.
Laura Farris
I am very sensitive to the issues that have been raised and will respond to them, but I will also explain why we do not accept the new clause.
We have steered very close to the course recommended by the Law Commission in what we have defined in law as an intimate image. It includes anything that shows a person who is nude or partially nude, or who is doing anything sexual or very intimate, such as using the toilet. It is a wider definition of “intimate” than was used in the revenge porn provisions under the Domestic Abuse Act 2021. We have expanded it, but we have confined it to what we think anyone in this country would understand as “intimate”.
One of the challenges in adopting a definition of “intimate” that includes, for example, the removal of a hijab is that we are creating a criminal offence of that image being shared. It would not be obvious to anyone in this country who received a picture of a woman they did not know with her hair exposed that they were viewing an intimate image and committing a criminal offence. The Law Commission has made very similar points in relation to showing the legs of a woman who is a Hasidic Jew, or showing her without her wig on. This would be grotesquely humiliating for that victim, but that would not be completely obvious to any member of the public who might receive such an image of them.
Laura Farris
I will, but I would like to develop this point a little bit more.
Jess Phillips
I strongly suggest that the hon. Lady does not come from the same community as me. I described images being sent to the community; the nature of the image would absolutely be clear to lots of people where I live.
Laura Farris
I was going to complete the point. If the hon. Lady will forgive me, I will do so before I give way again. We have to create laws that apply equally to everybody in the United Kingdom. If we are to create an offence of sharing intimate images, we have to have a translation of intimacy that is absolutely irrefutable to anybody sending that image around. Even if they do not know the person in the image, it has to be absolutely clear to the sender that they are sending an intimate image. I have already made the point that it would not be immediately obvious to everyone in the United Kingdom that an image of a woman showing her hair was a humiliating image of her. It would not automatically be an intimate image even if the person sharing it knew that the woman in the image was Muslim, because some Muslim women do not wear headscarves.
The hon. Member for Birmingham, Yardley described a very dark case. She mentioned the language of blackmail and honour-based violence. She intimated coercive control. My simple point is that in the circumstances she has identified, there are a host of serious criminal offences being committed in conjunction with the use of the intimate image. We would say, very respectfully, that we think that kind of crime belongs much more comprehensively within other offences.
Laura Farris
I am not going to engage in a case-by-case discussion. It is so difficult for me to do that; I do not have the papers in front of me. I understand the issue about community-based events, but if the purpose of sending the image is to blackmail a person, they have already engaged another element of the criminal law, and there is already aggravation, in that the perpetrator is being domestically abusive or is committing an honour-based offence, as the hon. Lady described.
I want to make it clear that by introducing the base offence, this legislation is removing the need to show an intention to cause distress. That is the issue that Georgia Harrison had, but managed to circumvent when she got that very successful and high-profile conviction against Stephen Bear, who went to prison for two years. She had an evidential difficulty in proving intent in her case. Although she did, she then became a really powerful advocate for removing intent from the offence, and we have done so.
I am not for a moment suggesting that there will not be cases of maximum sensitivity in which somebody is humiliated, but as I say, in the case that the hon. Member for Birmingham, Yardley described, in the background, other offences were materialising. Our view is that it is more appropriate that they are dealt with under other elements of the law, rather than our muddling the police response, or even creating offenders where we do not mean to, because under the hon. Lady’s offence, the offender does not know they are committing an offence. They might think that they are sharing an image of a glamorous woman, not knowing that it is grossly offensive that they have shown a picture of a woman who does not have her hair covered as she normally would, because they do not know her.
I hope that answers the hon. Lady. With great respect, I urge her not to press her new clause. However, I would like to hear from her, because I did not give way to her a moment ago.
The Chair
The rules allow the hon. Member for Birmingham, Yardley, to come back again—and the Minister can, in fact, respond again, if she would like to.
Jess Phillips
I understand exactly where the Minister is coming from. I understand not wishing to over-criminalise anybody for something accidental. I will just say that chance would be an absolutely fine thing. In the case that I was talking about, the police laughed at the woman when she went to them about it. Sometimes we on these Committees say, “Well, there’s already an offence for that,” and I think, “Is there?” In real life, there is not, when the rubber hits the road. I am not sure how many times people in this room have tried to get these criminal cases across the line. I do it every single week. In my life, I have done thousands and thousands.
The argument is the same for this legislation: what is the point of having it? Take Georgia Harrison’s case—let me give her a shout out. Good luck to her on “Love Island: All Stars”. I will definitely be supporting her; she is a friend of mine. There are probably all sorts of bits of legislation around posting an image of an ex partner. We say about spiking, “Well, there is already legislation for that,” but it does not work. Our job is to try to make laws that work in real life. I am afraid to say that there will be lots of cases of the kind that I am talking about. There just will, and the women involved will not be able to rely on this legislation.
The Minister said, “We try to make laws for all people in our country.” It does not always feel like that. We leave loads of people out. I will not press the new clause to a Division, because my point has been made. I am drawing a line in the sand when it comes to people in this Committee telling me, “There is another law for that,” when I know fine well that those other laws do not work.
Alex Norris
The hon. Member for Wyre Forest makes a very good point. The reason that I stopped short of doing that is that I was trying to stay within the “intimate” framing, but he is absolutely right. As we go into an election year, we will see, both in the States and over here, that being a real challenge to our democracy and to how we conduct campaigning. This provision would certainly not be right for it, but a new clause might be. That is good inspiration from the hon. Member, and I am very grateful for it.
The Committee heard about this during the evidence sessions for the Bill. Dame Vera Baird, the former Victims’ Commissioner, made the point very powerfully. She said that this use of deepfakes
“needs making unlawful, and it needs dealing with.”––[Official Report, Criminal Justice Public Bill Committee, 12 December 2023; c. 62.]
Indeed, she said she could not understand why they had not been banned already, and I agreed with her on that point. Amendment 57 is designed to address that. It will make it an offence for someone to intentionally create or design
“using computer graphics or any other digital technology an image or film which appears to be a photograph or film of another person...in an intimate state”,
whether that be for “sexual gratification”,
“causing alarm, distress or humiliation”
or offences under the Sexual Offences Act 2003.
The amendment is an important addition to what we have. Some important progress was made with the Online Safety Act 2023, but I think this finishes the job. I am interested in the Government’s view on whether where they went with the Online Safety Act is where they intend to finish, as opposed to going that little bit further. I will close on that point, but I will be very interested in the response.
Jess Phillips
I rise to support both amendments, and, in fact, what the hon. Member for Wyre Forest said as well. No one should have the ability to host an image of a person that they did not want out there in the first place. Unfortunately, what people tend to get back is that it is very difficult to place these things, but all sorts of things around copyright are traced on all sorts of sites quite successfully. We put a man on the moon 20 years before I was born, and brought him back. I reckon we could manage this and I would really support it.
Turning to the point made by the hon. Member for Wyre Forest and the issue of faking intimate images, I am lucky enough to know—I am almost certain that most of the women in this room do not know this about themselves—that deepfake intimate images of me exist. As I say, I am lucky enough to know. I did not ever once consider that I should bother to try to do anything about it, because what is the point? In the plethora of things that I have to deal with, especially as a woman—and certainly as a woman Member of Parliament in the public eye—I just chalk it up to another one of those things and crack on, because there is too much to be getting on with. But on two separate incidents, people have alerted me to images on pornographic websites of both me and my right hon. Friend the Member for Ashton-under-Lyne (Angela Rayner); they have a thing for common women, clearly. There is nothing that even somebody in my position can do about it.
The first time I ever saw intimate images of me made on “rudimentary” Photoshop, as my hon. Friend the Member for Nottingham North called it, if I am honest, like with most abuses against women, I just laughed at it. That is the way we as women are trained to deal with the abuses that we suffer. They could only be fake images of me, because, unlike my children, I do not come from an era where everybody sends photos of everybody else naked. As a nation, we have to come to terms with the fact that that is completely and utterly normal sexual behaviour in the younger generation, but in that comes the danger.
The reality is that this is going to get worse. Rudimentary Photoshop images of me were sent to me about five years ago, or even longer—we have been here for ages. Covid has made it seem even longer. The first time I saw fake images of me, in a sexualised and violent form, was probably about eight years ago. Over the years, two, three or four times, people have sent me stuff that they have seen. I cannot stress enough how worrying it is that we could go into a new era of those images being really realistic. On the point made by the hon. Member for Wyre Forest, I have heard, for example, two completely deepfake recordings of my right hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer) that were put out and about. To be fair to Members on the Government Benches, they clearly said, “This is fake. Do not believe it; do not spread it.” We must have that attitude.
However, it is one thing to stop something in its tracks if it is the voice of my right hon. and learned Friend the Member for Holborn and St Pancras saying, in that instance, that he did not like Liverpool, but that is nothing compared with the idea of me being completely naked and beaten by somebody. It is like wildfire, so I strongly encourage the Government to think about the amendments and how we make them law.
Laura Farris
Opposition Members have made two very good points, which I will respond to. The issue of publishing or hosting unlawfully obtained internet photographs is salient. It was probably thrown into its sharpest relief by Nicholas Kristof at The New York Times when he did a big exposé of Pornhub. I have never read off my phone in any parliamentary sitting before, but I will briefly do so, because the opening to his article is one of the best that I have read about Pornhub:
“Pornhub prides itself on being the cheery, winking face of naughty, the website that buys a billboard in Times Square and provides snow plows to clear Boston streets. It donates to organizations fighting for racial equality…Yet there’s another side of the company: Its site is infested with rape videos. It monetizes child rapes, revenge pornography, spy cam videos of women showering”.
The point is very well made.
Under the Online Safety Act 2023, we have ensured that all user-to-user services in scope of the illegal content duties are required to remove that type of illegal content online when it is flagged to them or they become aware of it. That would cover something such as the Pornhub apps I have described. We believe that the robust regulatory regime for internet companies put in place by the Act, with the introduction of the offence of sharing intimate images, which extends to publication, are the most effective way to deal with the problems of the spread of that material.
Our essential answer is that under the Online Safety Act a host site—I have given a big name, because I am critical of that particular site—would be under a legal obligation to remove content flagged to it as featuring prohibited content, so it would have an obligation under the law to remove an intimate image of an individual created without their knowledge or consent or to be subject to criminal sanctions. Under the Online Safety Act, those are substantial; Parliament worked collectively to ensure that meaningful sanctions would be applied in that regard.
There is a concern that creating a new offence would partially overlap with existing criminal offences—for example, that we would basically be duplicating some of the provisions under section 188 of the Online Safety Act. We worry that that would dilute the effectiveness with which such activity will be policed and charged by the Crown Prosecution Service. I understand that the provisions under the Act have not yet been commenced, so we would be legislating on top of legislation that has not been commenced. Respectfully, I invite hon. Members to allow the Act to come into force comprehensively before we make an assessment of whether we need to legislate again on the issue of hosting unlawful content. However, I am sympathetic to it, and I think the whole House agrees with the principle.
Equally, the Law Commission was asked to look at the issue of deepfakes, which it considered and responded to. I will remind the Committee of how it undertook its inquiry into the issue. It undertook a full public consultation on the point and engaged with the CPS and police, and it concluded that making a deepfake offence was not necessary. It identified certain associated risks, including difficulties for law enforcement and, again, the risk of overcriminalisation, which potentially would outweigh the benefits. The Government share the view of the Law Commission and have decided not to create a separate making offence.
I will provide hon. Members with some reassurance: nobody is in any doubt about the risk. The hon. Member for Birmingham, Yardley described harmful, culpable conduct relating to her personally and to other senior politicians in this House. My hon. Friend the Member for Wyre Forest gave hypotheticals that could easily materialise, and we all know that there is an increased risk of that as we move into an election year on a global scale, because elections are happening all over the world this year. Nobody doubts the risk. I want again to provide the reassurance that such conduct generally involves sharing of these images, or threats to share, both of which are criminalised by offences under the Online Safety Act, or by other offences—communication offences and harassment offences—so it is already captured.
The secondary issue identified by the Law Commission concern the prosecution difficulties, because it would be difficult to prove some elements of the offence, such as an intention to cause distress, in circumstances in which the image had not been shared—by the way, I take out of that a circumstance in which the defendant has told the victim that they hold the image, because that has already crossed the threshold. The question that I asked officials—I have now lost the answer, but they did give it to me. Hang on a minute; someone will know where it is. Will the Committee give me one moment?
Laura Farris
I thank the hon. Gentleman for his forbearance. Just to pick up on that point, I think he is right to hold the Government’s feet to the fire on the commencement of the Online Safety Act, because it is all very well having these provisions in law, but if they are not actually operational, they are not doing any good to anyone. I accept that tacit criticism as it may be advanced. I recognise that implementation now is critical; commencement is critical.
I will disclose the question that I put to officials. I was interested in the question of what happens if, for example, a schoolboy creates a deepfake of another pupil and does not share it, so that it is not covered by the Online Safety Act but is none the less an offence. I am told that that is covered by two separate bits of legislation. One is section 1 of the Protection of Children Act 1978, which includes making indecent images of a child, including if that is a deepfake, which would be covered by the statutory language. The second provision is section 160 of the Criminal Justice Act 1988, which is possession of any indecent image of a child and would include where it had been superimposed.
I am satisfied that the current law, including the Online Safety Act—I have already accepted that there are commencement issues—deals with deepfakes. I am sensitive to the prosecutorial difficulties that I have identified and I think that these are covered, particularly by the Online Safety Act. We accept the Law Commission’s very careful work on the issue, which was a detailed piece of research, not just a short paragraph at the end. On that basis, I very respectfully urge the hon. Member for Nottingham North to withdraw or not press the amendments.
Jess Phillips
On the answer that the Minister got from her officials, there are so many bits of legislation about abuses of children, sexual violence towards children, sexual grooming of children and sexual exploitation of children, and there are none about adults, as though such behaviour is not harmful when someone turns 18. If the same kid in the same class is 17 and makes images of a person who is turning 18, the view is that one day it would be a problem and the next day it would not, as though the abuse of adult women is just fine. The Online Safety Act does not say the word “woman” once, so I will gently push back on the idea that it deals with this. I am going to scour Pornhub now—I will not do it while I am in Parliament in case somebody sees me—to look for these images, and I will rise to the Minister’s challenge. I am going to go to the police once the Online Safety Act is in force and we will see how far I get.
Laura Farris
I thank the hon. Lady for her point. She is making very, very good ones, as she always does. That is a legitimate challenge. I just would also ask her to bear this in mind. She has heard our answer. First, we are accepting the Law Commission’s recommendation for now. Secondly, we think the Online Safety Act covers what she has described in terms of sharing. The third point that I draw her attention to is the pornography review launched today. That is a critical piece of work, and she made the good point that we focus extensively on children. There is a really important element of that.
First, we know that there is a dark web element where a lot of online pornography is focused directly on child pornography. We also know that adult pornography not only contributes to the pubescent nature of abuse that we see in the violence against women, but also violence against women much more widely. I have spoken about this; the hon. Lady has spoken about this—we have been in the Chamber together numerous times talking about it. I hope that that review will get on top of some the issues that she is raising today. I hope she will accept our gentle refusal of her amendment and maybe consider withdrawing it.
The Chair
—informative and important. I would be very grateful if she could save them up and use them in her interventions so that we get them on the record, rather than overhearing them from a sedentary position, if she would be so kind.
Criminal Justice Bill (Seventh sitting) Debate
Full Debate: Read Full DebateDepartment: Home Office
Jess Phillips
Main Page: Jess Phillips (Labour - Birmingham Yardley)Department Debates - View all Jess Phillips's debates with the Home Office
Criminal Justice Bill (Seventh sitting)
Jess Phillips ExcerptsTuesday 16th January 2024
(2 years, 6 months ago)
Public Bill CommitteesRead Full debate Criminal Justice Bill 2023-24 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 16 January 2024 - (16 Jan 2024)
Chris Philp
It is a great pleasure, as always, to serve under your chairmanship this morning, Mrs Latham.
This series of Government amendments and associated clauses expands the police powers to drug test on arrest to include locations outside of custody. That includes introducing a new police power into part 3 of the Police and Criminal Evidence Act 1984 to drug test persons on arrest at a location outside of the custody suite when certain conditions have been met. It also amends part 3 of the Drugs Act 2005 to provide the police with a power to require people who test positive to attend an initial assessment—and, when appropriate, a follow-up assessment—in respect of their drug misuse.
The Government are keen to get more people into treatment: something that we have funded with £300 million of extra cash over two or three years, with the aim of creating 54,500 extra drug treatment places. I am sure that we can all agree that the best thing is to get people off drug addiction, to prevent criminal behaviour.
The assessments that I have just referred to will enable those people to be referred into treatment or support services, whose funding has just been increased, as I mentioned. The new power will operate alongside the existing power, as expanded in the Bill, to drug test people on arrest or charge in police detention under section 63B of PACE.
Jess Phillips (Birmingham, Yardley) (Lab)
During the evidence sessions it was made very clear, by both experts in the field and the police officers, that currently there is absolutely no possibility of this resource being available. Will the Minister please outline what resources the Home Office will put in place to ensure that the drug testing that he is rightly outlining will be able to take place?
Chris Philp
I thank the hon. Lady for raising the point. It is important to have capacity to deliver the testing. As I mentioned a couple of moments ago, we are now in the second year of a three-year funding commitment, as part of the 10-year drug strategy, to fund 54,500 extra drug treatment places across the country, delivered in partnership with local public health bodies. Those places have been created. There are now also liaison and diversion officers, I think, in every—or almost every—custody setting and in many courts as well, to help identify people who have a drug addiction.
Just before Christmas, I visited the custody suite in Northampton, where I met liaison and diversion officers. They speak to people who have been brought into custody and, if there is a substance problem, get them referred as we are describing. I accept that there is a need for resources, but those investments are being made. The implementation is being tracked by a cross-Whitehall taskforce that meets on a regular basis and includes officials from lots of Departments.
Jess Phillips
I thank the Minister for that and am fully in favour of more drug support services. What I was asking was whether the police have the resources to undertake the drug testing that the clause outlines. The police said no; this is not about whether somebody then gets referred on—the police, in the evidence session, said no. The Casey review into the Metropolitan police last year found that samples from rape cases were being kept next to packets of sandwiches in a police officer’s fridge. Yesterday, there was the story about the foetus in Rochdale. Also, if—
Jess Phillips
Okay. There are just not the clinical resources in police stations currently. Will the Minister outline how the testing will be funded?
Chris Philp
I have talked about the liaison and diversion officers and the treatment capacity, but on police resources, which the hon. Lady was asking about, we have just completed a substantial police recruitment programme. We now have 20,951 more officers than we had four years ago and 3,500 more than we have ever had before. The training takes two to three years; as officers complete their training, more and more will be available for frontline deployment. In addition, we are also—
Chris Philp
Well, the actual tests often get administered by police officers, and the hon. Lady asked about police officer capacity.
We are also removing some of the administrative burdens on policing by reforming the Home Office counting rules—that has already saved half a million hours of police time per year. Furthermore, the NHS are in the process of picking back up mental health cases where there is no criminality or threat to public safety. That is right; people in a mental health crisis need medical treatment, not the police. Once that is fully implemented, and we are in the middle of doing it now, it will free up more than a million hours of police time. In addition to record police numbers, we are removing some of the burdens keeping them from frontline activity, including what we are discussing.
I am satisfied that both police resources and medical treatment resources are available. If anything, the challenge is actually that we are not using all the treatment places available. Some of the proposals in this legislation will help the police refer more people for that initial assessment, which we hope and expect will lead to treatment in the extra places that we funded.
I do not want to stray too far from the clause, Mrs Latham. Following the community safety partnerships review and antisocial behaviour powers consultation, we are, as I mentioned, expanding drug testing on arrest to locations outside of custody so that the tests can be done quickly and easily and take up less time, to answer the point made by the hon. Member for Birmingham, Yardley. That expansion, in addition to the expansion of drug testing to class B and class C drugs, as the Bill already provides, will ensure that police have all the necessary powers to identify people with a drug problem and get them into treatment.
The Government amendments confer a power on the police to drug test when a person aged 18 or over has been arrested for an offence and the officer has requested that the person give a sample. The power is discretionary, to be used when the officer feels that it is an appropriate course of action. It is also worth being clear that when drug testing takes place outside of police detention—that is, not in a police station—only a non-intimate sample, such as a swab or saliva, may be taken, for obvious reasons.
As with the current powers to drug test in police detention, testing may take place only when a person has been arrested for a relevant trigger offence, or another offence where an officer of at least the rank of inspector has reasonable grounds to suspect that the misuse of a specified controlled drug has caused or contributed to the offence and expressly authorises the test. A refusal to provide a sample without good reason will be a criminal offence, as is currently the case with the existing regime for drug testing on arrest.
Jess Phillips
In many domestic abuse cases—the fatal ones, sadly—the fact that the perpetrator was on drugs is used as a mitigating factor to get, for example, a manslaughter charge rather than a murder charge; I could cite many cases, but I will not stretch the Chair’s patience. Will drug testing be done in cases of domestic abuse, and has the Minister thought about how that might help the perpetrator?
Chris Philp
As I just set out, drug testing might be done, particularly if the inspector thinks that drug abuse might have contributed to the offending. If someone is on drugs that are causing them to commit domestic abuse, I am sure we would all want that identified so that action can be taken.
On the hon. Lady’s point about homicide versus manslaughter, that is not in the scope of this Bill—we are not making any changes in that area. I do, however, share her concern about the cases of people who murder their partners. We should not be somehow excusing their behaviour or seeking to diminish their culpability by saying, “Oh, they’re on drugs,” and getting the charge dropped from homicide to manslaughter. Although that is not the topic of this Bill—the Bill makes no changes as far as that is concerned—I share the hon. Lady’s concern. I hope that the legal community have heard the point that she has just made, with which I have enormous sympathy. I think it sounds reasonable.
The safeguards for the new power include that it can be used only by approved constables; that the statutory PACE codes of practice must include provision about how the new drug testing power is to be exercised; and that the sample may be taken only for the purpose of a drug test. That is to ensure that the power is used proportionately and only by those with appropriate experience.
The individual being tested must also be given a notice setting out why, when and where they were tested, and the result of the test. Following a positive test, a person can be required to attend an assessment with a drug-support worker, as is the case with the current drug testing regime. Non-attendance without good reason will itself be an offence. We will probably debate Opposition amendment 133 later; that tries to go further on this issue.
The trigger offences and specified controlled drugs will be set out in secondary legislation. The Secretary of State will, in line with the regime for drug testing in police detention, have the power to specify in regulations those trigger offences within the scope of drug testing in locations outside of custody, and the controlled drugs to be tested for. Such regulations will be subject to the affirmative and negative procedures respectively. That will ensure appropriate parliamentary scrutiny and allow for the regime to be varied if circumstances require.
The amendments also make various—I hesitate to use this term after the comments from the shadow Minister, the hon. Member for Nottingham North, last time—technical and consequential amendments; I think we should excise the word “technical” from our discussions in future to avoid triggering the shadow Minister. The amendments make various important and consequential changes to ensure that the drug testing regime outside of custody has the same legal effects as drug testing in police detention.
In talking through the amendments, I have explained the intent behind clauses 15 to 17. I will rest my remarks there and reply later to any further points raised in the debate.
Jess Phillips
I am not offended by the fundamentals of the clause—the idea that everybody is drug-tested. I can foresee possible abuses of the discretion that the Minister described, and I will not be surprised in a couple of years’ time if that discretion is used with black people more than it is with white people, for example, but time will tell. Let us have the triumph of hope over experience that this occasion will not be like every other one that came before.
But as somebody who deals with police forces and forensics and testing, I really do have to challenge the idea that the capacity currently exists to take even just a swab from someone. I do not understand this. What is the timeframe? How long will it take to get the results? I am currently working on a case that I started in May last year, and where are we now? Seven months in I am still waiting for lab results from my local police force. It is not some backwater, but the second largest force in the country.
In reality, I do not believe that this will happen for every person who comes into a custody suite. Let us say it takes a week for the results to come back. The Minister should feel free to intervene to say that the system will work like in an airport, where a bag can be tested to see if it has cocaine in it—not that I have any personal experience! He should feel free to say that every police force will get new machines to enable a result within the time that somebody is kept in custody, and that an intervention will be put in place sensitively. I would be delighted to hear that the world is completely not as I recognise it from being in custody suites just over this past year—not over many years, but just this year. This situation just does not stack up in reality.
The lag in getting a result could be a week—again, let us go for the triumph of hope over experience—but we are much more likely to be talking months. Will that slow down charging? I want to understand exactly how this is going to work in an already overstretched system. In the case from May that I talked about, a victim of multiple rapes, forced marriage and 10 years of abuse has waited seven months for anything. We just get, “Sorry, we’re waiting on forensics.”
Mark Garnier (Wyre Forest) (Con)
The hon. Lady’s points are well made and important, but, at the end of the day, does she fundamentally agree with the principle behind the measures? Is it just the process that she is worried about?
Jess Phillips
I believe in so many principles that I know in reality cannot be realised. I believe in the principle that when someone is in crisis with suicide, there should be a telephone line that I can call that means that they get what we used to call—because it used to exist—a safe and well check. I have done that many times myself. I believe in principle that that should happen. If a Minister were to stand in front of me and tell me that that was the policy, it would be like them telling me that the sky is green. It may very well be the policy, but the reality is completely different. In the evidence sessions, all the experts in the field backed me up.
I want to know how this will actually work. I absolutely want it to work, but, to the hon. Gentleman’s point, I am very concerned about some of the safeguards. One of the things that people who work in the criminal justice system notice is the trends in how wrong ’uns, essentially, start to get away with things—there is always some new defence coming down the line. In the days when we did not believe victims of domestic abuse and they could just be ignored—see yesterday’s report on Rochdale—people did not need a response. The current favourite of a domestic abuse perpetrator on a summary or more serious offence is a counterclaim against the victim—“Well, she’s abusing me”—and my God, does it work! The amount of women who are victims of domestic abuse currently being accused by police forces across the country of being perpetrators, not victims, of domestic abuse is plentiful.
We also know that if we look at our female prison population, or at the roll of women in any substance misuse service, we would go a long way before we found one who had not been a victim of domestic abuse or sexual violence—in childhood and adulthood—and exploitation. There is a reason why women end up substance-dependent. Incidentally, there is a reason why men do too, but the main reason why women end up substance-dependent is abuses they have suffered. It is very likely that a counterclaim that brings a woman into a custody suite will find that she smoked a few spliffs the day before. That will go against her not just in the criminal court, where she is much more likely to be convicted of those crimes than her partner, if we look at all the data on female convictions, but in the family court, where she will lose her children as a result of that evidence.
If a woman is distressed because she has just been attacked or has lived with fear and she is behaving erratically—who wouldn’t?—and somebody says, “I think she might be on drugs,” it will be used against her. On the defences I talked about, if a person commits domestic abuse and is on drugs, that will be considered a mitigating factor. I have seen it lots of times; in the most serious cases, it is the difference between manslaughter and murder. Let us flip it around: if a person murders or harms someone who is themselves on drugs, it is seen as an aggravation on their part, and they get manslaughter again. If a person kills a woman who is behaving erratically because she is on drugs, jackpot—manslaughter! If a woman takes drugs and is killed, it is a reason to give a man manslaughter. If a man takes drugs and kills someone, it is a reason to give him manslaughter. Frankly, the cards are stacked against us.
I agree with the principle of the clause, but what happens if there is a counterclaim and the woman is drug-tested and found to be on drugs and the man is not, or the other way round? Either way, there is a possibility—well, it is not a possibility, because every other law we have tried to change has been used by perpetrators; they are better than us in this regard and know their way around the system, as do their lawyers—that he will get a lighter sentence.
I wish the police were trained well enough, but only 50% are trained on coercive control, for example. We have to make sure that there is guidance so that, in cases of domestic abuse, where the woman has a potential counterclaim, these things are not taken into account; otherwise, they will be used to take her children off her—they will be used against her. I can already see it in my future. I ask that that is given some really serious thought, because I am a bit frightened about how this is going to play out.
As somebody with decades-long experience of living side by side with a heroin, crack and cocaine addict, who I am pleased to say is well now and has dedicated his life to the service of other people in that situation, I have to say that the idea that a person “has to” go to one session—it is about the compulsion—means that they are just going to go and tick a box. My mum sent my brother halfway round the world to have different interventions. They did not work. Thousands of pounds were spent trying to get somebody off drugs.
I hear what the Minister says about more money being put into this, and my brother was and continues to be part of Dame Carol Black’s review. However, there is this idea that just one interview will do the job. In reality, it is a tick-box exercise, and it will not work unless people’s initial trauma is dealt with. You would have to go a long way to see somebody with problematic substance misuse who has not suffered some form of trauma. Loads of people take drugs recreationally, and it does not harm them; they are not allergic to it and do not become problematic addicts. The reason why that happens to some people and they go on to commit crimes is that something else is wrong. One meeting will not a problem solve. If one meeting had been what it took, my mother would have died in a happier position than she did.
This proposal is not a panacea, unless we work with things such as the 12-step programme—I declare that I am on the all-party parliamentary group for 12 step recovery. The programme is completely free, so commissioners do not understand it; they do not know how to behave when no one is asking them for any money. I cannot stress enough that if this proposal is just to make a nice headline—“We are going to drug-test everybody”—rather than something that will work in reality, it is a massive waste of police time; it is pointless. I will leave my comments there.
Chris Philp
I will try to respond to some of the points made on this group of amendments and clauses. On mental health, as the national partnership agreement is rolled out, we are asking the NHS to do more to treat people when it is just a medical condition, and that is what the NHS should do, because a medical crisis requires a medical response.
To respond to the point about resources, the NHS is this year receiving an extra £3.3 billion above and beyond what was planned. A lot of extra money is going into mental health specifically, and things such as mental health ambulances and mental health places of safety are being invested in to create the capacity required for the NHS and the ambulance service to take on people who have, in the last few years, wrongly been picked up by the police.
On making sure that the roll-out is done as thoughtfully elsewhere in the country as it has been in Humberside, we are not taking a “big bang” approach; we have not just flicked a switch and said that it is going to happen nationally from tomorrow. Implementation is happening on a force-by-force basis. In each area, the police are working with the local hospital trust, the mental health trust and the ambulance trust to make sure that the capacity is in place before things get switched over.
The roll-out has already happened in some areas. In London, I think it went live on 1 October or 1 November, but it may not be implemented until the end of this year in other areas, because they are going through the process of making sure that the NHS side of the equation has the capacity and is ready. Things are being done in a thoughtful and measured way around the country to replicate the success in Humberside, to which the shadow Minister referred.
I will try to address one or two of the other questions.
Chris Philp
We are getting a little way off topic. Briefly, since the shadow Minister has raised the question, the roll-out is happening in a thoughtful way, rather than immediately, to make sure that such issues are addressed. As I said a moment ago, extra money is being put in. The NHS workforce plan, which is now in place, is designed to make sure that the people needed are there to meet the challenges, not just in mental health, but across the whole NHS spectrum.
Fundamentally, we all want to see people who have a mental health condition treated medically. Where there is no criminality and no threat to public safety, it is completely inappropriate to get a police response, which has been happening in recent years. Those people need to be treated, not put in a police custody cell, for example. That is the right thing to do, not just for the police, whose capacity is freed up to protect us and our constituents and to catch criminals, but for patients, who need and deserve a medical response. We are now working to ensure that that happens across the country, building on the successful trailblazer in Humberside, which shows that this can work.
On the question from the shadow Minister, the hon. Member for Nottingham North, about using the negative versus the affirmative procedure in Government amendments 25 and 26, no substantive change is being made. Essentially, changing the list of specified controlled drugs is subject to the negative procedure, the trigger offences are subject to the affirmative procedure and, if the changes are some mix of the two, that is subject to the affirmative procedure. That does not substantively change the current position.
Let me turn to the questions that arose on drug testing outside of a custodial setting. To be clear, we are conferring a discretionary power on the police. We are not compelling them to test; we are leaving it up to the police officer. There may be occasions when, for operational reasons and to test more people, they find it more operationally appropriate to test on the spot outside of a custodial setting. It may be that they do not plan to take the person back to a custodial setting. That will save police time. This is a discretionary power, not an obligation; the police can use it where they judge it to be helpful.
The shadow Minister also asked about time. These tests are not sent away to the laboratory. I accept that we need laboratory tests to be a lot faster, as the hon. Member for Birmingham, Yardley highlighted in her remarks. However, these are on-the-spot tests, similar to those that might be seen in an airport—by the way, I think those are testing for explosives.
Chris Philp
I am relieved, but not surprised, to hear that. The result of these on-the-spot tests takes between 13 and 35 minutes to come back, so it is pretty quick.
I said these were so-called non-intrusive tests, and the shadow Minister asked, “What about urine samples?” To be clear, non-intrusive tests are defined in section 65 of the PACE code. That does not include urine samples but does include hair—excluding pubic hair—saliva and a swab taken from a non-intimate place, such as under the armpit. We are talking about pretty non-intrusive stuff.
Chris Philp
The clause provides a new power for the police to seize, retain and destroy any bladed article—a knife, for example—held in private when they are on the private premises lawfully, but where they have reasonable grounds to suspect that the item is likely to be used for unlawful violence. Such knives are legal and held privately, but the police are concerned they might be used for unlawful violence.
Data shows that incidents with a knife or sharp instrument have fallen by 26% since December 2019, but it is still disturbing to see the number of cases admitted to the NHS every year—we look at NHS hospital admissions data because that is the most reliable measure of knife crime. As I say, hospital admissions for injuries with a bladed item have fallen by 26% in the last four years.
Currently, the police have no power to remove potential weapons from individuals unless those are to be used as evidence in an investigation or are subject to a ban. Even if the police come across several potentially dangerous knives while they are in a property with a search warrant for an unrelated matter—for example, a drugs charge—the only way they can legally remove those knives, even if they have reason to suspect they will be used unlawfully, would be if they were to be used as evidence in the investigation. These knives do not fall foul of the definition of knives that are inherently illegal, which we discussed in our previous Committee proceedings. We will widen the definition of illegal knives shortly via a statutory instrument, and such knives are always illegal, even if possessed in private. We are talking here about knives—a kitchen knife, for example—that will remain legal. I commend my hon. Friend the Member for Southend West for her campaigning on the issue of banning a much wider range of knives completely.
It might assist the Committee if I share a case study to illustrate the need for this measure. A police officer might be conducting a search in the residence of a male arrested for murder involving a firearm. The person might have multiple links to local gangs. A quantity of drugs might be recovered from the premises, along with a number of knives. Although there were drugs offences, if the knives found were not related to those offences, the police would have no power to seize them, even though they were found in the possession of a known criminal.
Jess Phillips
I seek clarity. There is a load of big kitchen knives on the wall in my house, and I can see them when I walk in. I deal with the issue of violence in a domestic setting all the time, but would that count?
Chris Philp
No, it would not count. For the police to exercise the proposed power, they must have reasonable grounds to suspect that the item is likely to be used for an unlawful purpose. I do not think there would be any reasonable grounds to suspect that kitchen knives hanging on the wall of the hon. Member for Birmingham, Yardley would be used for an unlawful purpose. By contrast, if the police were in the residence of a known prolific drug dealer and gang member, drugs had been recovered from the premises and they had been arrested or convicted for previous violent offences, that would be an instance where a quantity of knives—perhaps different knives beyond kitchen knives—would meet the threshold that I just set out. I hope that sets out the rationale.
In his evidence to the Committee on 12 December, Chief Constable Gavin Stephens, chair of the National Police Chiefs’ Council, said that giving the police this power is
“a very important preventive measure.”––[Official Report, Criminal Justice Public Bill Committee, 12 December 2023; c. 11, Q18.]
That is why are seeking to introduce the provision, justified in the way that I have set out. If somebody believes that their property—their knife—has been seized in error, they will be able to make a complaint to the police, as with any other police matter. In addition, we are providing a right of appeal in court to have the item returned, if the court agrees. If somebody did unreasonably seize the kitchen knives of the hon. Member for Birmingham, Yardley, she would be able to complain to the police in the first instance. If they did not address her complaint and return the knives, she would then be able to go to the court and get them returned.
It is also important to say that there is no additional power of entry associated with the new power. The police would need to be in the property lawfully, which, presumably, would also not be the case in the hon. Member’s house. For example, they would need to be there as part of an investigation into an unrelated matter or invited into the property. We will amend code B of the Police and Criminal Evidence Act 1984 to ensure that the codes of conduct reflect the new power, so that it is used in a fair and reasonable way.
Finally, amendment 32 is a minor technical amendment —we must not forget that—which clarifies that for the purposes of clause 18(8)(b), the final determination of an application includes the determination of any appeal. This provision will help the police to take dangerous knives off the street, or out of people’s houses, even if they are legal, where they are suspected of being used for unlawful violence. It is a useful additional power. The police asked for it in their evidence to the Committee, and I hope that it will command cross-party support.
Jess Phillips
Main Page: Jess Phillips (Labour - Birmingham Yardley)Department Debates - View all Jess Phillips's debates with the Home Office
Criminal Justice Bill (Eighth sitting)
Jess Phillips ExcerptsTuesday 16th January 2024
(2 years, 6 months ago)
Public Bill CommitteesRead Full debate Criminal Justice Bill 2023-24 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 16 January 2024 - (16 Jan 2024)
Chris Philp
The hon. Gentleman is making a very reasonable point. In fact, I was going to come on to it later, but I will address it now. As for the current deployments of live facial recognition in places such as Wales, Croydon, Southend, Chelmsford, Soho and elsewhere, a framework was set out by the case of Bridges v. South Wales Police. There is authorised professional practice from the College, but that framework is there. The hon. Gentleman is, however, making the valid point that it would be useful to set out—outside of this Committee, as he said—a broader strategy, framework or explanation of how the technology can be used. That is not just the case for live facial recognition, but also for the retrospective recognition, which I will come on to in a minute. It is all set out, and we could perhaps debate and discuss it in the round.
The hon. Gentleman is making a reasonable point about something that I had in mind to do in the relatively near future. That is something that I am working on in the Home Office, and his suggestion has spurred me on to expedite that. We want to have this set out transparently and comprehensively so that everybody can look at it and know where they stand. It has actually been done in relation to live facial recognition, but it would be helpful to set it out in a broader context.
Jess Phillips (Birmingham, Yardley) (Lab)
The point that my hon. Friend the Member for Bootle (Peter Dowd) made is far more eloquent than mine. The Minister is clearly very enthusiastic and learned about this issue. When he was talking about how live facial recognition does not rely on DVLA data or any photographic data at all, the Minister said that we just need a list. What does that rely on, then? It must rely on some sort of photographic data.
My second point—I will try to be slightly more eloquent and not sound like I am asking my kids to turn the telly on for me because I do not understand it—is about my kids. I do not mind my DVLA data being used; I will tick the box or whatever. It strikes me, however, that my son has a driving licence, and I feel slightly anxious about the way that large groups of young boys get treated like they are a rabble. There are all the brilliant examples of this, such as finding missing people or catching rapists—“Great. Wahey! Let’s lock them all up”—but I feel slightly less comfortable about my son’s photo being used, funnily enough, in what might be a broad-brush police and crime approach.
Chris Philp
I thank the hon. Lady. On the first question, which was about how live facial recognition works, we first of all need a watchlist—the list of wanted people—and then the photographs. Maybe there will be someone who is wanted for rape, and we have that person’s photograph. Maybe it is someone the police have encountered before, but they just cannot find them. Maybe the police have gone to what they think is the person’s home address, and the person is not there, but they have their photograph. They have that data. Then, in the case of the Croydon deployment in early December, there were 12,000 photographs of people who were wanted for different offences—the police had those photographs.
Then, the faces of people walking down the road are scanned. Each time someone walks past, their face is scanned to see whether it matches. For the vast majority, there is no match, and the scan is instantaneously, immediately and automatically deleted. There is no need for any manual intervention; it gets deleted straight away, like this—although I am not sure how my clicking my fingers will be rendered in Hansard. If the hon. Lady or I had walked past, we would be scanned and, one hopes, there would not be a match. Then there would be instant, automatic deletion. If someone is scanned and their photograph is one of the 12,000 on the list, however, there is a flash—that was a double click, for the benefit of Hansard—and an alert is sounded. The officer will then go over and say, “Excuse me, sir”—all of the 17 who were stopped were men, by the way.
Chris Philp
The officer will go over and say, “Excuse me, sir, what is your name?” When he has established that the match is accurate and that they are who the system thinks they are, it is a case of, “You are under arrest for X, Y or Z”.
That is how the live system works. There is no need to access any standing database such as that of DVLA; we just need the pictures of the 12,000 wanted persons. Depending on the deployment, we can choose who goes on that list. In the South Wales deployment, they were particularly concerned about terrorists who might try to cause an explosion in the arena or paedophiles who might seek to prey on the young girls going to the Beyoncé concert. The list can be varied depending on the location. I would hope, though, that any watchlist would always include people who are wanted for offences.
I will now come on to retrospective facial recognition. I repeat that we are not authorising this today by passing this clause; we are simply creating a power to make regulations in the future to do so. I just thought I would be clear about that. We are not creating this power; we are simply creating a legislative framework through which future regulations might be brought forward.
Jess Phillips
On a technical point, could this technology also be used to find witnesses on the bus, for example? I do not expect the Minister to know the answer to that question, but just to add a bit more enthusiasm to his love of this technology, I can see that there might be such uses for it.
Chris Philp
That is a really good question and I do not know the answer to it. However, I can certainly find out and come back to the Committee. I know that this technology can be used to find missing persons. If someone has gone missing, the police can do a search and see if they pop up somewhere.
As for finding witnesses, of course the witness has not committed a crime, so one would have to be a little bit careful about infringing on their rights. However, I will take that question away and get an answer, and I will write to the hon. Lady and the shadow Minister, and indeed the rest of the Committee, because it is a very good question. I am afraid that, as I stand here today, I do not know the answer, but that could help to find witnesses.
Chris Philp
It could be; that is certainly a possibility that I have in mind. If those regulations were brought forward, and maybe there would be some further clarifying codes of practice and so on that will be needed as well, it would in theory be possible to bring forward regulations such that, if the person or the suspect—it might be the murderer in that Coventry nightclub, or the sex offender on that bus. Imagine if their image was not on the custody database; imagine that they had never been arrested, or convicted, or anything. The police did not have their picture; they would not have found them. It would obviously be useful, particularly for more serious offences, to be able automatically to search other facial image databases besides the custody one, in order to catch the rapist, the serious sex offender and so on.
The hon. Member for Birmingham, Yardley asked a question about her son. There is a question of proportionality here. For example, regarding this database, in these regulations one could—this is not for the Committee today, but I am just saying it—specify a threshold, and say that this would only be used for crimes over a certain level of seriousness. Obviously, rape and murder would meet that. GBH, drug supply, firearms, knives and so on, might also be specified, but a parking ticket would probably not be. In these regulations—this is one of the reasons why the wording is flexible—one could specify that threshold, and we would obviously then debate where that balance should lie. One does have to be cognisant of proportionality and privacy considerations, as indeed data protection law in any case requires us to do.
I hope I have given the Committee a bit of a flavour of how these regulation powers—
Chris Philp
It is not often that someone says that after I have been speaking. I hope I have given a bit of a flavour of how this could help catch serious criminals who might otherwise not be caught. We would debate the specifics when the time came. There would, of course, be a code of practice and everything else to set out those guard rails. I have already indicated in response to, I think, the hon. Member for Bootle, that there is a case for a wider policy statement setting out the strategy in this area, which we can discuss and debate.
I appreciate that we have strayed a little beyond the strict confines of this clause, Ms Bardell, but the Opposition raised some reasonable questions that I really wanted to try hard to answer. I will finish by saying that I spoke to my local police commanders, Superintendent Mitch Carr and Chief Superintendent Andy Brittain, encouraging the deployment of live facial recognition in Croydon. I know 17 people got arrested. We have heard how it was done in Essex: in Southend and in Chelmsford. I encourage members of this Committee to talk to their local police and say, “Try it out in your area,” and see who gets caught. At the moment, South Wales police and the Met have the necessary vans, but they will lend them. I think South Wales police lent the vans to Essex. If anyone wants to suggest it, they could ask their chief constable to borrow the van from South Wales police or the Met, try out in their constituency, and see who gets caught.
Amendment 33 agreed to.
Amendments made: 34, in clause 21, page 18, line 19, leave out “police force listed in subsection (4)” and insert “body”.
This amendment and amendment 35 specify in more detail the relevant chief officers of bodies to which the provisions will apply.
Amendment 35, in clause 21, page 18, line 20, at end insert—
“(aa) in relation to a police force listed in subsection (4)(b) to (d), the chief constable of that police force;
(ab) in relation to a service police force listed in subsection (4)(p) to (r), the Provost Marshal of that service police force;
(ac) in relation to the tri-service serious crime unit, the Provost Marshal for serious crime;
(ad) in relation to the Service Police Complaints Commissioner, the Service Police Complaints Commissioner;”—(Chris Philp.)
See the statement for amendment 34.
Clause 21, as amended, ordered to stand part of the Bill.
Clause 22
Powers to compel attendance at sentencing hearing
Question proposed, That the clause stand part of the Bill.
Laura Farris
Let me give the hon. Gentleman a practical illustration. Lucy Letby was not compelled to attend her sentencing hearing. She was a young woman in her early 30s and not obviously a massive danger to the victims’ families or somebody who was going to be disruptive, yet the judge did not compel her attendance. We think that the provisions in the Bill alter that and make it far more likely that somebody would be required to attend their hearing.
Jess Phillips
With regard to that particular case, the Minister is absolutely right. It would seem that somebody could use reasonable force to get Lucy Letby there. The fact that she is a woman and the vast majority of the security staff in the court would be men would, I imagine, make them pause with concern as employers. My hon. Friend the Member for Swansea East just pointed out to me that these court security officers earn around £18,000 a year. If this piece of law is saying that it is still up to the judge, where is the compulsion? Currently, it is up to the judge. In Lucy Letby’s case, it was up to the judge. The measure still says that it is up to the judge. So why does it make a difference?
Laura Farris
The difference it makes is that now we will not necessarily even see a judge consider exercising that discretion. By putting it into primary legislation—I appreciate the word “may” is used, and I am not going to pretend otherwise—you are essentially saying to the judge, “The time has come for you to exercise your discretion. Considering this defendant, in these circumstances in this case, are you going to compel attendance in the circumstances that are set out in the Bill?” There are other examples of where we put things on the statute book that existed somewhat loosely as a practice or in common law and were not been evenly applied, and it has ended up with a much more linear application of something that we think is socially desirable. That is the effect.
I want to make one other point. The hon. Member for Stockton North made some good points about people in riot gear, but I think one of the things he would perhaps gently concede, looking back particularly over the last two to three years of some of the most high-profile cases, is that it has developed into something of a trend. In some high-profile cases, people are aware that they have got away with not going. People say to their lawyer, “Do I have to go?” and the answer is no. The clause changes that. Actually, if you get back into a pattern where the defendant is in the dock for sentencing, you will see much less resistance. I am afraid to say that there has been a bit of contagion around this particularly pernicious conduct, and the clause is aiming to right that wrong. By embedding a practice where effectively they do have to go, or at least they will be video linked up, there will be no way in which the court will not be able to see their face as the remarks are read out to them. In some way or another, I hope that alters this ugly pattern of behaviour.
Laura Farris
I thank the Chair, and remember her direction to direct my own remarks towards her, which I will try to do on this occasion.
I am pleased to speak to the provisions contained in clause 23. In recent years, there have been a number of high-profile cases involving so-called grooming gangs—groups of offenders involved in child sexual exploitation—in Rochdale, Rotherham, Telford, Newcastle, Oxford and Reading, and those are just the ones we know about. The discovery of the network of those grooming gangs was a significant factor in this Government’s setting up the independent inquiry into child sexual abuse, chaired by Professor Jay, who did the initial report into Rotherham. The Government believe that grooming gang members should face sentences that reflect the seriousness of their offending, which is why, last April, the Prime Minister made a commitment to introduce a new statutory aggravating factor to target grooming behaviour.
This new measure, introduced by clause 23, creates a statutory obligation to consider grooming an aggravating factor when sentencing specified child sex offences, including rape and sexual assault. In plain English, that means they will get a longer sentence. It will capture offenders whose offending is facilitated by, or involves, the grooming of a person under 18. The grooming itself need not be sexual.
It is already the case that both grooming behaviour against the victim and acting together with others to commit an offence are high-culpability sentencing guidelines for a number of sexual offences. However, this measure goes further by creating an obligation to aggravate the sentence in instances where the offence has been facilitated by grooming undertaken by a defendant who is a participant in a grooming gang, even if they did not personally groom the victim. That means the aggravating factor will, for the first time, capture models of exploitation not currently directly addressed elsewhere: for example, where an offender assaults a victim who has been previously groomed by another member of the same grooming gang.
The measure requires the courts to consider grooming an aggravating factor when sentencing in relation to any of the listed child sex offences. It will remain within the court’s discretion to consider grooming an aggravating factor irrespective of the offence being sentenced where it is deemed to be relevant to the offending.
Jess Phillips
It is a pleasure to serve under your chairship once again, Ms Bardell. I am pleased that the Minister leaned on it being a year on from the child abuse inquiry—not one of whose recommendations, I think it is fair to say, has yet come to fruition. Well, hope springs eternal for this year! There are plenty of recommendations for the Government to crack on with in this regard, and I look forward to seeing some sort of timeline from the Home Office of any progress in that particular area.
New clause 25, which I tabled, seeks to try to include adult grooming victims on the same footing as children. The grooming of adults is widely and wildly misunderstood, despite there being considerable overlaps of perpetrators and, in fact, perpetrator behaviours and tactics of those seen in cases of child sexual grooming.
At the moment, sexual grooming is a crime only when the victim is a child, but grooming can and does happen to adults as well. It is a technique used by perpetrators to ensure compliance on the part of the victim and to avoid detection, as the victim’s actions are more likely to appear consensual when they are being groomed. Grooming is a deliberate process of limiting the freedoms of a person by gaining control over them and creating a dependency.
New clause 25 would make an aggravating factor of grooming in certain adult cases, including around domestic and sexual abuse. That would both challenge the misconception that adults cannot be groomed and send a message to perpetrators of domestic and sexual abuse that the grooming of adults is being taken seriously and will not be tolerated.
The 2018 Spicer report acknowledged for the first time that not only children but women over 18 are being groomed and sexually exploited. Since 2019, STAGE, the partnership against adult sexual exploitation—I make a declaration that I am the chair—has supported over 700 adult women who have experienced grooming just in the north-east and Yorkshire. The issue is widespread and prevalent in every part of the UK, but is under-represented in UK legislation.
STAGE’s work has confirmed that grooming is a common technique used to manipulate people for sexual exploitation. It has a negative impact on people’s ability to consent and to make capacitated decisions. However, for adults who have experienced grooming, this is often reduced to making “poor life choices”, because of the belief that grooming can only happen to children.
Everything that we heard yesterday about what was said to the girls in Rochdale is being said today to somebody over the age of 18, or even to somebody of the age of 18. Adult victims of grooming are repeatedly asked victim-blaming questions such as “Why did you get back in the car?”, “Why did you stay with them?” and “Why didn’t you leave?” by professionals and services that are meant to be protecting them. This ignores the immense impact of grooming. Because of this, many victims and survivors feel unable to leave their perpetrator, or may not even recognise the abuse that they are experiencing. Until the grooming of adults is recognised in legislation, it will continue to be misunderstood by law enforcement and the criminal justice system, and victims will not be adequately protected. That is why I have tabled new clause 25.
Yesterday, in the light of the Rochdale report, I thought of a woman I had supported. I wanted to make sure, because of the media, that she was okay, because when these sorts of things happen it is pretty traumatic for women who have been exploited in childhood and adulthood. She is 27 years old, so the legislation we are debating would not include her. I needed to search through my email to find her phone number. I found among my emails a letter that I had forgotten, which she had written to the now ex-Home Secretary, the right hon. and learned Member for Fareham (Suella Braverman). I will read it now:
“Following on from your statement on the 2nd of April 2023, I am writing this letter as a victim who has been let down by countless professionals and services, but worryingly the Home Office itself.
I will begin by providing a summary of my experiences. I was groomed at the age of 13 and this then led on to me experiencing sexual and criminal exploitation for over a decade, whereby I was trafficked all-round the country and sold from one gang to another. There were countless times where I was gang-raped, injected with heroin and left black and blue. I was exposed to serious and organised crime and my perpetrators would laugh at how they continued getting away with what they were doing to me and so many other girls. I did not see any of my family for years and my childhood and early adulthood was stolen away from me.
Whilst I acknowledge your statement that you vow to stamp out child grooming gangs, that is a very easy statement to make. Victims of this crime all around the country have heard it all before. Although you’ve announced new measures to tackle the issue, it makes me question how is this achievable when there are so many flaws in the systems already in place, such as The National Referral Mechanism (NRM).
The police did not refer me into the NRM, despite them full well knowing I had been trafficked. I have spoken with several police officers over the years who do not know what the NRM is, let alone know that they are first responders. It took 562 days for me to get my conclusive grounds decision and for most of that time I continued to be exploited. Nearly a year ago, I was sitting in a hotel paid for by the police, after I’d been physically and sexually assaulted. My accommodation was not safe, and I had requested a safe house. After a lot of back and forth, I was eventually told by…the Home Office’s contractor for NRM services, that a safe house was not an option as I was a British national and that there were no other appropriate housing options. I had to return to unsafe accommodation to then be raped and physically assaulted again.
As you have overseen a system that has routinely let vulnerable people down, I would like to know what action has or is going to be taken to improve this?
I spent days and days in police interviews going into as much detail as I possibly could, with the hope that I would get justice and the men who had tortured me would end up behind bars. The reality is so many victims like me must drop out of investigations because we are not safeguarded, resulting in thousands of perpetrators on the streets continuing to exploit and intimidate vulnerable children and adults. If possible, imagine you are at a police station as a victim of this crime and a stream of text messages come through your phone from your perpetrators saying that they know where you are and that if you do not leave, they will kill you and your family. That is just one example of a threat I have received.
This is not going to stop until appropriate measures are put in place to protect us. In the meantime, the trauma victims experience at the hands of their exploiters is exacerbated when we are routinely let down by the so-called systems in place to protect us. I haven’t even covered in this letter, the battles we face accessing support for our mental health and the legal challenges.
I do hope that you read this letter and that it provides you with an opportunity to reflect on an example of someone who has experienced failures from the Home Office.”
I just ask that we do not fail her again and that we recognise the abuses that she suffered. For women who have been sexually exploited in adulthood—by the way, the sexual exploitation of adults is not defined in law; it has no legislation around it, but believe you me, there are some new clauses coming down the line later—I ask that we recognise that the people who groom children go on to groom the same women as they turn into adults, when they do not have the same protections. I completely agree with everything that the Minister has said; I just want it for her as well. That is all that new clause 25 seeks.
Alex Cunningham
As the Minister outlined, clause 23 creates a new aggravating factor to apply when a court is sentencing an adult for a specified child sex offence and that offence was facilitated by or involved the grooming of a children—that is, a person under 18. The court is required to treat the grooming as an aggravating factor, but that does not apply where the person who committed the offence was a child under 18 at the time of the offence.
Clause 23 requires the judge to state in open court that the offence had been aggravated by grooming. It could be undertaken by the offender, or a third party, and committed against the victim of the underlying offence, or a third party. Where the grooming is undertaken or facilitated by that third party, the offence will be considered to be aggravated if the offender knew or could be reasonably expected to have known about the grooming when the offence took place. The person groomed need not be the victim of the offence.
I understand from the Government’s explanatory notes that this is to allow for a case, for example, where child A is groomed to recruit child B and an offence is then committed against child B. Clause 23 also does not require that the grooming be undertaken as part of a gang.
We must not lose the context in which this clause operates, which is horrific cases of offenders preying on the most vulnerable. In recent years, there have been a number of high-profile prosecutions of grooming gangs, including in Rotherham, Telford, Newcastle, Rochdale and Oxford. In 2014, the independent inquiry into child sexual exploitation in Rotherham between 1997 and 2013 identified that at least 1,400 children and young people in Rotherham had been sexually abused or exploited. Who knows how many children there are across the country if one area had as many as that?
Just yesterday, the report on child sexual exploitation in Rochdale was published, again illustrating and demonstrating the extent of the crime. I am sure everyone on the Committee will share my sadness in hearing my hon. Friend the Member for Rotherham (Sarah Champion) speaking in the media over the last 24 hours about how things have not got any better. My hon. Friend the Member for Birmingham, Yardley also talked about how none of the recommendations has yet been implemented.
Laura Farris
Let me start with the shadow Minister’s comments. He asked about the definition of grooming, the nature of the prosecution and the scope of a grooming gang. There is no definition of grooming because of the broad range of behaviour that it can encompass. Identifying a grooming gang is a task for the police working in conjunction with the CPS. One force told me recently about a grooming gang prosecution in which they had to identify the number of defendants. They were talking about tens of defendants and tens of victims, and some of the defendants in the grooming gang had never met each other and had no idea who the other people were. It was quite a difficult exercise for the CPS to judge how best to get a prosecution and a conviction. In that case, they succeeded, but that is why the definition is not set out in law. It is dealt with on a case-by-case basis.
The shadow Minister challenges me to explain what this provision adds, when grooming is already an aggravating factor and is often considered in child sex offences and taken seriously. I hope I have explained, but I will clarify again if he did not understand. We are simply adding that a member of a grooming gang, as defined within the parameters of that case, can be subject to the aggravation provision at sentencing, irrespective of the fact that they did not directly groom the victim of that child sexual offence. They could be a tangential member of the gang—perhaps one of the people who has never met one of the other defendants, such as in the case I just outlined—yet they could still be subject to the aggravation.
The shadow Minister asked about cost. That is a fair question, and I will have to come back to him in writing on that. We will add it to the list.
Jess Phillips
I feel I know what grooming is, but, on the Minister’s earlier point about the Court of Appeal reducing the sentence, without a proper definition of grooming or at least a working definition in secondary legislation or regulation, are we not at risk of appeal? I do not know whether she or any of us has sat through a lot of court cases like this, but the idea that there is heavy knowledge in police forces, the CPS and the judges of our country about exactly what grooming or coercive control are, I have to say, is for the birds. I am a bit worried about the risk of appeal on a loosey-goosey case that could be grooming. Why would someone not just take it to appeal immediately, if their sentence was aggravated?
Laura Farris
I will come back to that. For the purposes of this afternoon’s Public Bill Committee, the issue is not whether the courts have an adequate understanding of grooming.
I will give my experience. I was appointed as counsel to the independent inquiry into child sexual abuse. I worked on that inquiry from 2016 to 2017, and it is on my Register of Members’ Financial Interests. I was also instructed by a Telford victim in a public law challenge—not a criminal law challenge in the High Court—against the local authority in relation to its breaches of various duties to her. So I have direct familiarity with cases of this nature.
There are many, many issues with this kind of offence. I think that the courts understand child sexual exploitation and grooming gangs and that it is left deliberately loose in law so that a range of behaviours can be encompassed. The one that the public are most familiar with is sexual exploitation, but there are other forms of grooming that go much wider and where there is no sexual element. It is right that that flexibility exists so that somebody is not outside the possibility of being a victim of a grooming offence.
Laura Farris
I thank the hon. Gentleman for his intervention and I promise that I will give some thought to that, but I just wanted to come back to the new clause tabled by the hon. Member for Birmingham, Yardley. This is not about creating a new offence. The treatment that the victim the hon. Lady described was subjected to is already covered by criminal law. This amendment is simply about an aggravating element going into statute in relation to grooming.
As the hon. Lady is well aware, the difference is that we are confining our amendment to the grooming of children for sexual purposes. That is our amendment. We have focused our amendment on that because child sexual exploitation by grooming gangs has been so problematic and so serious.
I will go back to some of the examples that the hon. Lady gave, although it is very difficult to respond to an individual’s case in the context of a Public Bill Committee, because I do not know all the details. I think that the hon. Lady said that the person was 27 and had been groomed since the age of 13. The vast part of what she suffered in the early days would be captured by this provision, because she was a child. I appreciate what the hon. Lady said about the continuing grooming—I think she said that that person is still being groomed today.
Laura Farris
But, in a case of this nature, the judge would still have the discretion to consider that treatment as an aggravating circumstance, so there is nothing precluding a judge—they would have to get to the end of the trial, get the conviction and get the offence—from treating it as aggravating. I have not been given an example, in the context of this particular clause, of somebody going to court about a case of this nature, getting the conviction and then getting a sentence that was not sufficiently serious.
Laura Farris
Well, grooming cases are brought to court, and convictions come from those cases.
One thing that I would gently say, since the example of Rochdale has come up a lot, is that the report that was published yesterday relates to the period between 2004 and 2013. When we worked on IICSA, Rochdale and Rotherham directly informed why IICSA was set up and why Alexis Jay was appointed chair of that inquiry. IICSA was informed by all the cases we were looking at, whether it was Dolphin Square, residential schools, the Catholic Church or the Australian migrant scheme. Even though Andy Burnham commissioned that review, it related to a time period that goes quite a long way back, starting from 20 years ago, rather than what is happening in your—[Interruption.]
The Chair
Order. I remind Members how important their contributions are and to please intervene and put comments on the record, so that we can capture them.
Laura Farris
What came out of yesterday's report was shocking, but it was also known. As I said, it informed IICSA. We looked at Rotherham extensively throughout. I did not read the report and say, “I’ve never heard any of this before.” I knew about it, and I had spent time on stuff like this. I am simply saying about the case that the hon. Member for Birmingham, Yardley described—a horrific case—is that the clause would, first, cover a perpetrator being brought to justice who had abused her as a child. Secondly, if her case got to court and she got a conviction on the multiple offences that she seems to be describing, there is nothing to stop the judge from treating it as aggravating and enhancing the sentence.
Jess Phillips
If there is nothing to stop a judge in a case where an adult has been sexually exploited as an adult because of multiple perpetrators over many years—different faces changing, some just in adulthood, some from childhood, but basically a pattern is set when someone abuses a child and that carries on for a lot of their life—is the Minister saying that as we can already aggravate on the basis of grooming an adult, what do we need this piece of legislation for children? Also, to push back heavily, I cited in my speech the 700 cases of adult sexual exploitation found in Yorkshire and Newcastle alone, so if her idea is that adult sexual exploitation is not a big issue in our country, on the same scale if not greater than child exploitation, I suggest that she has not been out to the country.
Laura Farris
I will keep my remarks concise. Let us look at adult sexual exploitation—I accept, by the way, the breadth of the problem without reservation. First, the adult, simply by virtue of being an adult, has more ability to vocalise their experience than a child does. Secondly, there are more forms of exploitation—for example, forced labour or human trafficking, both of which overlapped with what the hon. Lady described. The case of children who are victims of grooming gangs is specific, and it is also a direct thing that we dealt with. The clause is directed just at children.
Laura Farris
I have to take this back to what it is. It is not about creating an offence. It is not about saying, “If you sexually exploit a child, you’ve committed a criminal offence, but if you sexually exploit an adult woman, you haven’t.” That is not what this is about, and I do not want to get lost in that. The hon. Member for Birmingham, Yardley described a series of offences that, if they achieved convictions, would be category A offences. They are unbelievably serious offences. We are not denying that.
The clause, however, is directed at grooming gangs as they relate to children. The purpose of the clause is to capture the wider membership of the grooming gangs so that even if people did not directly groom the victim, they are on the hook for the same aggravation. It is to bring in the entirety of the grooming gang. As I said, that is usually defined by the CPS in terms of how it will choose to prosecute a case. That can be very wide indeed. It can bring hundreds to court, or certainly tens, but that is a decision for the CPS. The clause potentially brings all gang members within the scope of the aggravation, simply because they have been identified as part of the gang, if one of those victims has been groomed. That is the purpose of the clause.
Jess Phillips
I did not for one second think that I was asking for a new offence. If I had been, I would have tried to write it into the clause. The Minister is suggesting that there are not wide-scale gangs grooming adults in our country that need targeting. It is exactly the same. There are grooming gangs. Perhaps we could all spend a bit of time at the National Crime Agency or watch any drama about organised crime, which always includes drugs, sexual exploitation and prostitution. There are grooming gangs grooming adults, both men and women. Especially when we are talking about men, it is very silenced. There is a trade in drug addict, down-and-out men in our country that would make people’s toes curl. I have rarely met a young heroin addict who was not traded for sex by powerful men.
I cannot believe the categorisation of it. I do not believe it, because I know the Minister well. For children it is, “grooming matters more”. For adults, we might as well say, from what I have heard today, “Why did you get back in the car?” I have to say, it is not characteristic and not what I was expecting. I find it very disappointing. There is no crime of adult sexual exploitation. It does not exist. It is as if we just do not care that adults get sexually exploited. It is as if we tolerate it in society.
Mrs Flick Drummond (Meon Valley) (Con)
The hon. Lady is making an excellent point. There is a rise in cuckooing in particular, which is the exploitation of adults. It used to be for drug dealers and so on, but now it is being used for prostitution as well. I just want to add that to the hon. Lady’s excellent comments.
Jess Phillips
I absolutely agree. There is undoubtedly a pattern with cuckooing. Funnily enough, one of the other things we do not define in law, which I am hoping goes through in the Victims and Prisoners Bill, is child criminal exploitation. Apparently the really important grooming gangs in those cases we do not consider important enough to define in law. Let us hope that that changes as these many Bills that all cross over each other pass through. I absolutely hope to see cuckooing in this Bill before the end of its passage.
I want to stand here and make a statement on this idea that it is any different. When adults are sexually exploited, for instance an 18-year-old being sold, raped, beaten, held at gunpoint and frightened, the idea that they could come and speak—it is just unrecognisable to me.
Question put and agreed to.
Clause 23, as amended, accordingly ordered to stand part of the Bill.
Clause 24
Murder: end of relationship aggravating factor
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
New clause 27—Aggravating factor relevant to offence of murder: honour-based violence and abuse—
“(1) Schedule 21 to the Sentencing Code (determination of minimum term in relation to mandatory life sentence for murder etc) is amended as follows.
(2) After paragraph 9(g) insert—
‘(h) the fact that the offender inflicted honour-based violence or abuse on the victim.’”
A new clause to instate honour-based abuse as an aggravating factor in murder cases.
New clause 28—Aggravating factor relevant to offence of murder: strangulation—
“(1) Schedule 21 to the Sentencing Code (determination of minimum term in relation to mandatory life sentence for murder etc) is amended as follows.
(2) After paragraph 9(g) insert—
‘(h) the fact that the offender strangled the victim as part of the homicide.’”
A new clause to instate strangulation as an aggravating factor in murder cases.
New clause 29—Infidelity of victim not to be used as part of a defence to murder—
“When considering a charge of murder, the court may not take into account as part of the defendant’s defence an allegation that the victim was at any time or in any way, physical or verbal, sexually unfaithful to the defendant.”
This new clause would ensure sexual infidelity can never be used as a defence to murder.
Laura Farris
Clause 24 sets out the new statutory aggravating factor for murders that are connected with the end of a relationship. This provision is one of four that the Government are taking forward in response to the independent review of sentencing in cases of domestic homicide that was undertaken by Clare Wade KC. Together they will ensure that the seriousness of murder committed in a domestic context is reflected in our sentencing framework. Around a quarter of all homicides in England and Wales are classed as domestic. In other words, the perpetrator is a partner or former partner of the victim.[Official Report, 1 March 2024, Vol. 746, c. 6MC.] (Correction) The vast majority of these homicides are committed by men against women and usually follow a pattern of years of abuse prior to the homicide.
The legal framework for murder sentencing is contained in schedule 21 to the Sentencing Act 2020, a piece of legislation that was first introduced in the Criminal Justice Act 2003, 20 years ago. While every case of murder carries a mandatory life sentence, this framework sets out the principles to guide the court in determining the minimum custodial term. It is a non-exhaustive list. It is always open to judges to consider aggravating and mitigating factors not contained in schedule 21.
Until now, schedule 21 has contained no express recognition of the seriousness of domestic murders, but over the past 20 years—I would argue particularly in the past five—our understanding of offending committed in a domestic context has improved. As Clare Wade highlighted in her review, our sentencing framework needs to be updated to reflect that. On the overall measures, last year, a statutory instrument was laid before Parliament to introduce both a statutory aggravating factor and a statutory mitigating factor for murder in relation to controlling or coercive behaviour, in line with the recommendations. Where an abusive partner has killed their victim, in recognition of the seriousness of the preceding abuse of coercive control and the experience of the victim before death, the coercive control will constitute an aggravating factor for the purposes of sentencing.
A new mitigating factor will apply in cases where the victim of an abusive partner or family member has killed their abuser, in recognition of their experience as a victim of abuse preceding the killing, which is exactly what happened in the Sally Challen case. This is consistent with the conclusion of the Court of Appeal—it is essentially taking the court’s conclusion and making it a statutory mitigating factor.[Official Report, 1 March 2024, Vol. 746, c. 7MC.] (Correction)
We have also introduced new statutory aggravating factor for murders involving gratuitous and excessive force, sometimes referred to as overkill. That is something that Clare Wade found to be strikingly prevalent in not only domestic murders,[Official Report, 1 March 2024, Vol. 746, c. 7MC.] (Correction) but all the cases she assessed. The perpetrator in cases of overkill—to use that shorthand—was male in all but one case.
Clause 24 introduces the fourth legislative measure that the Government committed to take forward in response to Clare Wade’s recommendations. This provision will make murders connected to the end of a relationship, or the victim’s stated intention to end a relationship, a statutory aggravating factor. In 40% of the murder cases analysed by Clare Wade as part of her review, the murder occurred at the end, or perceived end—an important qualification—of the relationship. The perpetrator was male in all those cases, and, in over two thirds of them, a history of coercive or controlling behaviour was also identified.
Killing in those circumstances is often the final controlling act of an abusive partner. As Clare Wade put it in her report, when the perpetrator learns he no longer has control over his partner because she is going to leave, the final act is homicide—the last way he can control her. The old shorthand used in court is: “If I can’t have you, no one will.” It is striking how often it twins with overkill—the use of gratuitous and excessive violence—at that moment. They often occur at the same time.
While it is for the judge to determine the appropriate weight given to the aggravating factors in each case, we expect that this change, along with the other statutory aggravating factors we have introduced in response to Clare Wade’s recommendations, will have a significant impact on the minimum custodial terms. It will also get the court to consider the nature and context of domestic homicides specifically, which has never happened before. These changes mark a step change in the way our sentencing framework responds to and understands cases of domestic murder. For the first time, the nature of these murders and the unique harms underpinning them will be recognised expressly in our sentencing framework. The perpetrators must serve sentences that truly reflect the severity of their crimes.
Jess Phillips
I will speak to new clauses 27 to 29. I do not disagree on the issue. I worked very closely with the families to get Clare Wade’s review up and running under the then Lord Chancellor, the right hon. and learned Member for South Swindon (Sir Robert Buckland)—who I believe was just speaking in the Chamber, making a nuisance of himself today as well. While we are making these changes, I think that Clare Wade has herself said, as have many of the families involved, that making these limited and piecemeal changes is not good enough. I will place some of my own thoughts on record for the sake of showing the many ways in which the aggravating factors for cases of domestic homicide need to be updated.
Jess Phillips
A girl can dream! I will speak to a number of changes because, if we are going to make a point about the end of a relationship, we have to also think about some of the other aggravating factors to try and level the playing field regarding sentencing. I have a list of case studies here of murderers and how long they went away for: 15 years, twelve and a half years—brutally murdering women—16 years, 15 years for a man who then went on to murder somebody else on his release. So, the level of time that we give for this particular crime is woeful.
New clause 27 would make honour-based abuse an aggravating factor in murder cases. Banaz Mahmod was killed in a so-called honour killing in 2006 by her father—not somebody she was ending a relationship with—her uncle, and five other men. She was murdered for leaving her abusive husband, for desiring a divorce and for meeting a new boyfriend who those men disapproved of. She was murdered because she was accused of bringing dishonour and shame on her family and the community.
The men that killed Banaz had boasted and joked about the murder, and were supported by other members of the extended family, who made investigations and prosecution as difficult as possible. The police estimated that there were about 50 men involved in her murder and related crimes.
Before her death, Banaz suffered greatly, reporting rape and violence, threats to kill and an attempt on her life. She went to the police five times. She named the suspects who would eventually kill her. The police did not hear; they did not act. In 2008, a commissioner for the then Independent Police Complaints Commission found serious failings in the police handling of the case.
For many years, Banaz’s sister Bekhal, who I consider a friend, has campaigned alongside Southall Black Sisters for a law that recognises the horror of honour-based killing explicitly in sentencing. New clause 27 would do that. It would introduce honour-based abuse as an aggravating factor in murder cases.
Such a new clause will increase confidence in the criminal justice system, sending a strong message that this violence can never be accepted, excused or ignored. As the Women and Equalities Committee stated, an explicit reference “would strengthen the understanding that honour-based abuse is taken seriously by the criminal justice system and only ever as an aggravating factor.” That would have an impact upstream, too, ensuring that agencies do not misunderstand, ignore or turn a blind eye to honour-based abuse due to ignorance or to fear of being seen as culturally insensitive or racist.
Those women must be protected. We must reach them before it is too late. That is particularly important, as honour-based abuse is a high-risk crime that involves multiple perpetrators and colluders and sometimes multiple victims, because of shared codes of honour. Too many victims are at risk for us not to act.
New clause 28 argues that strangulation should be classified as an aggravating factor in sentencing murders. From previous times that I have worked on this issue with the Minister present, I know that she cares deeply about strangulation, and the arguments for the new clause seem unquestionable. First, the nature of the violence: strangulation is a gendered form of killing. That is how men brutally and callously kill women. The 10-year femicide census showed that strangulation was the second most common method for men who kill women, and Clare Wade’s review demonstrated its prevalence.
It is hard to find words to reflect the horror of killing someone by strangulation—the vulnerability of the victim, the intimacy of being eye to eye, the length of time that it would take to kill someone in that way, and the fear that the victim must experience in their final moments. Many bereaved families I work with speak to me about how that haunts them. That must be reflected in the sentencing framework.
Furthermore, new clause 28 follows new laws on non-fatal strangulation—the Minister may remember them her time on the Back Benches—which were introduced under the Domestic Abuse Act 2021. How we understand the role of strangulation in domestic abuse is changing. It is now understood as a form of coercive control and an accurate red-flag predicter of homicide. If someone is strangled, they are much more likely to go on to be murdered. We must change how it is considered in sentencing.
A judge can recognise strangulation as serious or sadistic under schedule 21—I say again that that needs review—but strangulation is not being recognised. It is simply not being recognised for the horror that it is. In 59% of the strangulation cases looked at by Clare Wade’s review, the method of killing was not seen as an aggravating factor. Significantly, in 73% of the remaining cases where the offence was said to be aggravated by the nature of the killing, the strangulation was accompanied by either an assault or an attack with a weapon. That suggests that the seriousness of the violence denoted by strangulation in and of itself is not being acknowledged.
In law, we place a lot of emphasis on weapons, but as we see in many gendered murders, many male perpetrators do not need a weapon. Such a perpetrator carries his weapon everywhere he goes, and that is his strength, his arms, his physical power. He does not need a weapon, so his culpability should not be decreased because he did not use one; he did use one. That is not a point in law that has gone unrecognised in other crimes; our bodily differences are recognised. For example, for the crime of rape, the Sexual Offences Act 2003 explicitly states that it can be done only with a penis. That recognises that a man’s body can be a weapon. I am not asking for anything beyond what exists in current law.
A three-year study of 204 adult cases of non-fatal strangulation showed that one in six had been strangled to the point where the victim lost consciousness. Symptoms of such violence include strokes, depression, memory loss, seizures, motor and speech disorders, and paralysis. Studies have shown that victims of non-fatal strangulation are seven times more likely to be murdered by their partner. The true nature of strangulation must be understood, as must its relationship with misogyny. Strangulation is about silencing. It is about exerting power, fear and control. As the member of a focus group who attended for Clare Wade’s review explained:
“It is almost always about the perpetrators wanting the last word but if you work with the perpetrators, you hear this over and over again—like I wanted her to shut up I wanted her to be quiet but I wanted to win you have to have the last word. That is what the whole kind of attacking the throat and putting the hands over the mouth—it is all about silencing.”
I very much hope that the understanding of an aggravation in the use of strangulation in a killing can be considered.
On a slightly different note, new clause 29 would ensure that infidelity can never be used as a defence to murder. The Minister said earlier when commenting on perpetrators attending court that common law practice sometimes needs writing into primary legislation. I very much agree with her, which is why I am seeking for this amendment to be made. While it is still written in our legislation that someone can use infidelity as a defence for murder, it is not used in common law.
Currently, infidelity cannot be used as a defence or mitigation. However, the latter is common-law principle rather than in statute. Section 55(6)(c) of the Coroners and Justice Act 2009 provides that sexual infidelity cannot be relied upon in a defence of a loss of control. That was passed following the wrath about “crime of passion” defences going through the criminal justice system in response to domestic murders, and it revoked previous laws on provocation. The legislative change was brought about due to the incredible work of domestic abuse campaigners.
However, the legislation did not concurrently prevent sexual infidelity being a mitigating factor in sentencing in schedule 21 to the Sentencing Act 2020—I feel like I am really attacking schedule 21 today, but I am not keen on it if I am honest—thereby creating an inconsistency in the law. The law on provocation changed, but the sentencing principle that surrounded it did not. Common-law principles on the whole prevent this inconsistency from playing out. I will spend the entirety of the Committee stage saying, “In real life, that does not really happen.” Well, in real life this does not happen. It is not something that I am mortally frightened of. It no longer happens that someone is allowed to say that because their wife cheated on them it is fine that they killed her. A million other defences are made, but not that one anymore.
The defence still exists in law; however, it is not used, on the basis that precedent allows for factual scenarios to be disregarded in mitigation where they run contrary to the policy behind existing legislation, even where there may not be a statutory bar. Despite that, it is important to regularise common-law principles in statute for the avoidance of confusion and to fill lacunas in the law. New clause 29 ensures that no judge could ever stray and use it as a mitigating factor.
New clauses 27, 28 and 29 speak to the larger issue of how we see and respond to the killing of women. How we sentence crimes reflects how seriously we take them. At the heart of these debates is how seriously we take the violent deaths of women and the stealing of their lives. I am afraid to say that at the moment, and we do not take it as seriously as we take other crimes. Several years ago, two mothers walked into my office, Carole Gould and Julie Devey. Their relentless campaigning, at personal cost, has hugely elevated the issue of how we should hold the people who kill women to account. Their daughters were both murdered in brutal, violent attacks by their ex-partners. Ellie was 17 and Poppy was 24. They had their futures stolen from them by two men who had decided, as Julie once described, that
“if they couldn’t have them no one else could either”.
Their mothers began campaigning to challenge the discrepancy in the sentences given in cases where the victim, often a woman, is killed in the home and in other homicides where the victim is killed in public spaces. The distinction commonly turns on the fact that if a perpetrator brought a weapon to the scene of a crime, the starting point for sentencing is 25 years. If, however, the weapon is not brought but found, as with a kitchen knife—my kitchen knife comes back into play from earlier—the starting point is only 15 years. That is 10 years’ difference.
The example that is repeatedly given to demonstrate that inequality is that if someone brings a knife with them and kills their victim with a single stab, they will receive a mandatory minimum sentence of 25 years; but if the victim is suffocated, strangled, beaten, or stabbed hundreds of times to the point of mutilation with a knife found at the scene, the starting point is 15 years. With the discretion of the judge and the mitigating and aggravating factors, Clare Wade’s research suggested that on average that resulted in a six-and-a-half-year difference between the two sorts of crimes. That cannot be right.
Laura Farris
I thank the shadow Minister for his intervention. We are thinking hard on that point.
I want to check that I have not missed anything from section 55, where anything
“done or said amounted to sexual infidelity is to be disregarded.”
That is still good law. I suggest that the issue of some defendants claiming as a defence that they had killed a victim because she had been unfaithful to them has now been resolved and it is excluded as a qualifying trigger for the loss of control defence.
Clare Wade recommended that sexual infidelity should also be prohibited from being considered as a mitigating factor when it came to sentencing. We published our response to her review in July last year, setting out why we will not take that forward. The domestic abuse sentencing guideline already expressly states that provocation is no mitigation to an offence in a domestic context, except in rare circumstances. No evidence was provided in the review that sexual infidelity was ever being taken into account inappropriately as mitigation. I am therefore satisfied—it is the only point on which I really disagree with the hon. Member for Birmingham, Yardley—that the law already has sufficient protection in place. I urge the hon. Member not to move the new clauses.
Jess Phillips
I do not actually move them yet, as we do not do that for new clauses until the end. I was saying to myself, “I don’t think I have to do anything.”
I have, of course, already taken part in the consultation alongside the Killed Women network, which I work with incredibly closely. To the Minister’s final point, I started my remarks by saying that I do not agree with myself, having to do a piecemeal job. Schedule 21 needs an overhaul, but we will all start tinkering with it until it ends up in the place it already is, with bolt-ons and batons hanging off it, when something much more fundamental, in a modern world, needs doing.
On the final point about the defences, it may surprise the Minister to hear that that definitely came to me from some pretty eminent lawyers who work in the field—maybe even Clare Wade. I will take that back and speak to them about what exactly was concerning them with regard to that particular issue. I will bring it back to the Committee when we discuss new clauses at the end, of which there will be loads.
Question put and agreed to.
Clause 24 accordingly ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Scott Mann.)
Jess Phillips
Main Page: Jess Phillips (Labour - Birmingham Yardley)Department Debates - View all Jess Phillips's debates with the Home Office
Criminal Justice Bill (Ninth sitting)
Jess Phillips ExcerptsThursday 18th January 2024
(2 years, 6 months ago)
Public Bill CommitteesRead Full debate Criminal Justice Bill 2023-24 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 18 January 2024 - (18 Jan 2024)
The Parliamentary Under-Secretary of State for Justice (Laura Farris)
It is again a pleasure to serve under your chairmanship, Ms Bardell.
Clauses 25 to 27 concern the transfer of prisoners to foreign prisons. Clause 25 introduces the measures that are relevant to the transfer of prisoners to rented prison spaces overseas. It defines key terms relevant to the following sections, and establishes the nature of the agreements and to whom those provisions may be applicable. The measures have been drafted to apply to a broad cohort of adult prisoners. This will ensure that the measures are applicable to the final cohort that will be decided on under the terms of any final agreement with a partner state. Prisoners will be subject to a transfer only after an assessment of the individual circumstances of their case. Although the details will be subject to future negotiation and agreement, additional exclusion criteria may apply.
Clause 26 deals with the transfer of prisoners between the territory of the United Kingdom and rented prison spaces overseas. It will allow the Secretary of State to issue warrants for the transfer of individuals from the United Kingdom to rented prison spaces overseas or for the return of prisoners held in rented spaces overseas to the territory of the United Kingdom. It allows for transfers both ways, as needed. Like many of the provisions relating to the transfer of prisoners to rented prison spaces overseas, these provisions may be used only once prison rental arrangements with foreign countries are in place, and may be used only for the specific purpose of transferring prisoners as part of that arrangement. The clause also provides that time spent in a rented prison space overseas will count towards the prisoner’s sentence as determined in England and Wales.
Jess Phillips (Birmingham, Yardley) (Lab)
Will the Minister tell the Committee whether the Government intend to transfer women prisoners? Literally decades of data shows that women prisoners are predominantly victims of domestic and sexual violence, which is often a pathway to their offending.
Laura Farris
The hon. Lady’s question is a good one. She will know that women form a very small part of the overall cohort of prisoners, that women prisoners have unique vulnerabilities and that they experience prison in a very different way from the male cohort. It is true that women are not expressly excluded from the provision, but obviously the United Kingdom Government are bound by the considerations under the European convention on human rights, and one can readily imagine how those will extend to female prisoners. It is obviously more likely that men will be transferred, because of the size of the cohort.
Jess Phillips
Would it not be better to put on the face of the Bill that women are carved out? I do not see any reason why we could not do that, if it is so vanishingly unlikely that a Government would transfer women prisoners. I am afraid to say that Governments are not always great on the issue of women in prison—not just this Government, but any Government, including any that might come in—so would it not be better to include that safeguard?
Laura Farris
I am sympathetic to the hon. Lady’s point, which I will take away. The purpose of the provisions is to set the framework for future agreements, so of necessity they are deliberately quite widely drafted and do not seek to tie our hands. The hon. Lady’s points are irrefutable; I looked at the issue when I was a member of the Justice Committee.
Domestic powers to transfer individuals to rented spaces such as these do not currently exist in UK law, and the provisions, widely drafted though they are, are essential for the operation of a future agreement. Clause 27 contains provisions regarding the operation of warrants, which are proposed in clause 26. The provisions allow the Secretary of State to appoint individuals to escort prisoners in transit to and from rented prison spaces overseas and to provide those individuals with the powers necessary to exercise those duties.
The provisions are similar to existing transport and escort provisions contained in the Repatriation of Prisoners Act 1984 and are built on long-standing operational practices. They are an essential complement to the powers set out in clause 26 and are necessary for the effective operation of a warrant for transfer. The clause also contains provisions to enable designated individuals to detain prisoners who may attempt to escape or who find themselves unlawfully at large in the process of transit to or from a rented prison space overseas. I commend clauses 25, 26 and 27 to the Committee.
Laura Farris
I thank the shadow Minister and my hon. Friend the Member for Meon Valley for their contributions, and I will respond to them as best I can. First, I want to talk a little about the context of the pressure on prison places. As of September 2023, 16,200 people were on remand in prisons in England and Wales. The reason why we have such a big remand population is that during the white heat of the pandemic, the Government took the decision to continue with full jury trials.
I remember listening very carefully to what the right hon. Member for Tottenham (Mr Lammy)—now shadow Foreign Secretary, then shadow Justice Secretary—said on the issue. Colleagues may recall that at one point he called for a reduction in the size of juries. He said that it was imperative to keep the criminal justice system moving, and he advocated for a shift to juries of five, only during covid. He was robustly attacked by Baroness Kennedy in the Lords, a Labour peer, who said that that was an absolute dereliction of article 6 rights. She gave a very passionate speech about it, brilliantly written, and I noticed that the shadow justice team never mentioned reducing the size of juries again.
Respectfully, I say it is reasonable to infer that the Opposition supported our decision to continue with full jury trials. If I am wrong about that, they can direct me to where they called for something different, but as I say there was a tension between the then shadow Justice Secretary and Baroness Kennedy. [Interruption.] It was incredibly difficult, and I think that is why the shadow Justice Secretary got himself into a bit of a muddle.
The decision to continue with full juries of 12 people determining the result of criminal trials during covid contributed heavily to the backlog, and to why we have so many people on remand awaiting trial.
Laura Farris
I will continue a little more. We are undertaking the biggest prison building exercise since the Victorian era. We have committed to creating 20,000 new prison places, and have already got 5,700 of those places on stream, but we are not there yet.
The amendment tabled by the hon. Member for Stockton North gives rise to a number of sensible points. Let me distil them: he thinks that prisoners should not be transferred if they are getting near to the end of their sentence, have a sentence of imprisonment for public protection, are going through constructive rehabilitation treatment, or are implicated in some form of criminal proceeding. All those are very sensible ideas, but we respectfully believe that they are best addressed through policy, based on the appropriate expertise from within the prison system, not set out in primary legislation.
In fact, I think the hon. Gentleman made the point tacitly himself. He gave a number of other very good examples, including prisoners who have serious mental health conditions, are pregnant or are someone’s primary carer. All those factors are highly material. Let me reassure him slightly, if I can. To the extent that the exploratory conversations have begun, we are only having them with other European countries. That means that they are bound by the same obligations under the European convention on human rights, which would be material in the types of cases the hon. Member for Stockton North has suggested.
Laura Farris
I have never been involved in a case of that nature; cases where the offending is really serious tend to be much more straightforward. There is flexibility, because we can take such cases to court to appeal the removal. Obviously, when someone is already a victim of crime, that is a different context, so I do not know how the courts would deal with it. The law itself, however, is set out under the established immigration rules, in primary legislation and has been operational for 12 years now. That is not part of the dispute today.
To continue, it is right that we take innovative measures to ensure that we always have sufficient prison capacity to fulfil the orders of the court and to punish the most dangerous offenders. I reiterate at this stage that the powers simply lay down the foundation for future arrangements. I repeat: all the points raised by the shadow Minister, the hon. Member for Stockton North, about the considerations that might apply were relevant, but this is about future arrangements so that we will have the power to transfer prisoners to rented foreign prisons. No foreign prison rental agreements are yet in place, however. As he is aware, there is precedent in Europe: both Norway and Belgium have similar arrangements with the Netherlands at present.
Jess Phillips
I want to respond to some of what the Minister said. She told us not to worry about people’s families visiting, because 10% of them are foreign nationals. She went on to say that foreign nationals have children abroad. I represent loads and loads of people who are not British nationals but who definitely have family in the UK, so the idea that 10% of the prison population do not have any families who want to visit them, or that the families of all non-British nationals in UK prisons live back home, is wrong. Welcome to the world—people move about and they have babies with people here in this country. That is a bit of a reality check on some of what was said.
I also did not understand the Minister saying that we now have a massive backlog because the justice system carried on during the pandemic. Was the justice system due a three-year break to stop the backlog? Do we normally have a three-year break to make sure that we have enough prison places? That is a weird justification, which I did not really understand.
On human trafficking, there are more victims of human trafficking in prison than there are human traffickers; the woeful rates of conviction of people who people-smuggle or commit modern slavery are well charted. Last week, I was in a meeting with the bishops, the Lords Spiritual—I always think “Lords Spiritual” sounds like a rock band—about this exact issue. Prison wardens and governors from a variety of prisons were there to give evidence, as was the Bishop of Gloucester—I believe her role is as the overarching Lord Spiritual for prisons—the office of the United Nations High Commissioner for Refugees and lots of organisations who work with trafficking victims, including the Salvation Army and others. I was there, and the prison governors made it very clear that lots of people in prison have a pattern to their behaviour.
If we look at the Rochdale case from last week, we see that a young girl was criminalised as a pattern of her sexual abuse. That is not uncommon or unknown; it is in fact the opposite—it is well known, well charted and well evidenced. There is a huge amount of evidence for that, so I absolutely want to see a carve-out in that particular space for anyone identified as a victim of modern slavery.
The Minister asks us to wait for policy to feel comfortable about this, rather than writing things into the Bill. I totally understand that legislation does not necessarily need to be very detailed, but I would have liked, for example, to have had the word “women” once in the Domestic Abuse Bill—but, you know, we can’t be picky.
The trouble is that I have seen what happens when we leave things to policy that is skew-whiff and ambiguous in the Home Office, especially when it comes to cases of human trafficking. As the Minister said in response to my hon. Friend the Member for Swansea East, she has not been involved in any particular cases.
Currently, Government policy is a bit skew-whiff on how we remove or deal with victims of human trafficking. It is not exactly clear, and even the lawyers are not clear, both those from the Home Office and those seeking to represent victims of human trafficking who are threatened with deportation. Last week, I was with a barrister in a case, and she clearly said that the policy is to remove all victims of human trafficking from Albania, which the Government have said is a completely safe country—perhaps, unless you are a young woman who has been trafficked repeatedly, in which case all of the evidence suggests that Albania is incredibly dangerous.
I was in court because the Government were trying to deport a victim of human trafficking who had stayed within the national referral mechanism—in fact, had had her therapy paid for by that very same Home Office —for three and a half years. The Home Office had agreed yes, she is a victim of human trafficking. Literally, she has a piece of paper from the Home Office—it might as well have been signed by the Home Secretary—to say, “You are a victim of human trafficking.” She had two children, and both had lived in Britain for seven years, both born here of the rapes that she had suffered. But the Home Office was trying to deport her to Albania, a place they had already deported her to once; she had been re-trafficked from there immediately after reporting to the police. So excuse me if I do not trust something not being written into a Bill about how to handle these difficult cases.
I want to see on the face of this Bill provision so that no woman, no victim of human trafficking and no one with autism—the number of people with autism in our prison estate is phenomenal. Where are the safeguards so that barristers such as the one I was with last week have something to lean on when the Home Office decides that its policy is a little bit grey and so it can actually do what it wants?
Laura Farris
I thank the hon. Lady for her submission. I will confine myself simply to arguments as they relate to the prison transfer issue. Furthermore, this part of the Bill is Ministry of Justice, not Home Office.
Let me address two points. I am sorry if I was insufficiently clear when I talked about foreign-born offenders. Of course I do not make the crude assumption that none of them will have connections with the United Kingdom, including family, but some will not. We know we have problems with foreign gangs coming over. My simple point in response to the hon. Member for Birmingham, Yardley, is that not every single prisoner will have strong local ties in the United Kingdom, because that is not true and will be a relevant consideration in assessing the cohort for transfer.
On my other point, I am again sorry—perhaps it was my mistake—if I was confusing about the decision to maintain full jury trials during covid. That decision was a controversial one because of the number of jurors required. Those were physical trials at the time, and having the number of jurors required to sit together in a courtroom during a period when social distancing was set out in law was incredibly difficult. Without doubt, that delayed the process of the criminal justice system, so much so that some Supreme Court justices urged the Government to dispense with juries altogether. As I said in an earlier observation, the then shadow Justice Secretary, the right hon. Member for Tottenham (Mr Lammy), suggested we shrink juries rather than abandon them altogether. Other eminent lawyers—I cited one—thought that that was the wrong idea.
This was a very difficult decision on how to operate criminal trials, but in the end we decided that it was imperative, in the interests of justice and of article 6, the right to a fair trial, that everyone who was charged with a criminal offence in the Crown Court had the right to have justice administered as fairly as possible, so we stuck with the juries. That has led to delay, and that is why the remand population—in other words, people still awaiting trial—is higher than it otherwise would be, which has caused pressure on prison places. I apologise if that was insufficiently clear. That concludes my remarks.
Laura Farris
We are committed to ensuring that any foreign prison will be subject to an inspection arrangement; it is simply the terms of that inspection arrangement that we are not putting into primary legislation.
Amendment 67, tabled by the shadow Minister, is important. Arrangements for the independent inspection of escort arrangements in England and Wales already engage HM inspectorate of prisons to some extent, and the Prison Act 1952 allows the Secretary of State to investigate any matter connected to prisoners and prisons in England and Wales. We are committed to ensuring that effective scrutiny of escort arrangements is in place but, again, the exact terms of the arrangements are yet to be concluded and it is inappropriate to attempt to distribute specific responsibilities without prior agreement.
Amendment 68 addresses deaths in custody. This is an important point and must be subject to high-level scrutiny. That is especially true where there may be a death in custody that occurs overseas. This matter will be of primary importance to us during negotiations with any partner country. We are committed to ensuring that we are able to comprehensively investigate any deaths that may occur in rented prisons overseas.
This subject is a prime example of how we intend to use the delegated power we are seeking in clause 29. Once we have agreed arrangements with a partner country, we intend to use our delegated power—by potentially extending the remit of relevant bodies in England and Wales, for example. Until those arrangements are finalised it would be inappropriate to bind any potential body or person, including coroners, in law.
We are also committed, of course, to upholding the human rights of prisoners, including their rights under articles 2 and 3 of the European convention on human rights. That is legally binding on us, and those are absolute rights. We are currently considering only entering into arrangements to rent prisons from countries that can demonstrate that their prison conditions and capabilities—including for death investigations—comply with that same human rights law and our expectations on the fair treatment of prisoners.
On the basis that this is an important issue for future negotiations, or is non-negotiable given our international obligations, it is too early to begin considering how issues such as death investigation will be accounted for without first making precise arrangements with a partner country. I therefore urge the hon. Member for Stockton North to withdraw this amendment and to not press the other amendments in his name in this group.
I will speak now to clause 28, which concerns oversight arrangements for rented prison spaces. I have said already that the clause establishes a duty on the Secretary of State to appoint a controller. I have also set out their responsibilities for ensuring that any prisoner transferred to a foreign prison will be returned before the end of their sentence to allow for sufficient time for resettlement and reintegration back into the United Kingdom before release.
Clause 28 also extends the remit of His Majesty’s inspectorate of prisons to allow for inspections of any rented prison spaces overseas and subsequent reports to the Secretary of State on their findings—respecting their operational independence. Consideration of prison conditions and the treatment of prisoners has been, and will remain, central to our decision making.
Jess Phillips
On the point of saying here, and the law even saying, although the law does not say it, that prisoners will be returned to the UK before the end of their sentence, is there—well, I imagine that there is—a chance that their sentence might be extended because there is no place for them to be brought back to?
For example, our modern slavery laws say that we would have to wait for 45 days of reflection in cases of modern slavery. In reality, it is 700 days at the moment. So, laying out a term: is there any worry that, if we say that prisoners have to come back here before they are released to do a period of parole, we will in fact be extending people’s sentences because there are not any places for them to come back into?
Laura Farris
Can I just clarify that I have understood the hon. Lady’s intervention?
Laura Farris
I think it would have to be part of the planning for any prisoner who was going to be transferred for there to be space for them to be returned, because that is part of the policy—that they will be brought back into a domestic prison before release so that there can be proper engagement with the parole and probation services. That is, as hon. Members would expect, to facilitate a smooth release back into the community, as with any prisoner.
We are mindful of the need to ensure that effective inspection and monitoring provisions are in place. While the exact arrangements will be subject to future negotiation, we will ensure that those are sufficient, and they will also be subject to further parliamentary scrutiny. I commend clause 28 to the Committee.
Jess Phillips
Main Page: Jess Phillips (Labour - Birmingham Yardley)Department Debates - View all Jess Phillips's debates with the Home Office
Criminal Justice Bill (Tenth sitting)
Jess Phillips ExcerptsThursday 18th January 2024
(2 years, 6 months ago)
Public Bill CommitteesRead Full debate Criminal Justice Bill 2023-24 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 18 January 2024 - (18 Jan 2024)
Jess Phillips (Birmingham, Yardley) (Lab)
I have just said that I would not contribute because I want to get off, but obviously I have not stuck to that. How many people will this clause bring in line with the law? We have some evidence from Refuge, which I cannot put my finger on right now—I am sure I will be able to manage that in a moment. I know and remember from the evidence sessions that a tiny, tiny fraction of people receive a sentence of more than 12 months in cases of coercive control. Would the Minister provide us with some understanding of exactly what this groundbreaking realignment of the law will actually bring about?
We still fail to recognise, though we must recognise it, that no one is convicted in the vast majority of cases of coercive control, domestic abuse-related crime or sexual violence. The monitoring that is needed must come before the instance. Schemes are currently being run by the Metropolitan police around the 100 highest priority at-risk offenders. In reality, however, although I am delighted that the Minister heralded some previous amendments of mine in a Bill Committee not dissimilar to this one—she is welcome—that is not what we are talking about in this clause. If it is more than 200 people, I would be surprised to hear that. I will find the data while she responds.
The Government are proposing legislation that allows us to monitor people as we do for terrorism, but in cases of terrorism no convictions are needed to undertake the type of monitoring that we hope our security services are doing day in, day out to prevent terrorism. To suggest that monitoring will happen only on conviction is absolutely not in line with terrorism. We still have a two-tier system, where the actual domestic terrorism that occurs in people’s homes is still very much allowed to happen.
Alex Cunningham (Stockton North) (Lab)
The clause makes a straightforward amendment that would provide for the automatic, rather than discretionary, MAPPA management of offenders convicted of controlling or coercive behaviour in an intimate or family relationship who are sentenced to 12 months or more. As a result, such offenders will be treated as category 2 rather than category 3 offenders for MAPPA purposes.
It should come as no surprise to the Government that we enthusiastically support the clause. Labour has committed to halving incidents of violence against women and girls within a decade. For far too long, those dangerous criminals have been let off and victims have been let down. Indeed, the multi-agency public protection arrangements were introduced by the last Labour Government in 2001 under the Criminal Justice and Court Services Act 2000, being strengthened again in the Criminal Justice Act 2003. Those arrangements see the police, probation and prison services working together to ensure the proper management and monitoring of sexual or violent offenders. In a joint thematic inspection of MAPPA, I have seen them called
“one of the success stories of the criminal justice system”.
The inter-agency approach of MAPPA improves public protection by bringing together criminal justice organisations, as well as others, in a structured way to address and actively manage the behaviour of offenders who can sometimes be difficult to accommodate and who may pose serious levels of risk. Labour is in complete agreement with the Government that perpetrators of coercive and controlling behaviour should be brought more directly under the remit of MAPPA. As Women’s Aid said, this signals that the crime of coercive and controlling behaviour, which is central to so much domestic abuse, is being taken more seriously by the justice system. As it also points out, bringing CCB offenders automatically under the remit of MAPPA is particularly important given the links between coercive control and homicide.
For cases where there is high risk of domestic abuse, the active management and inter-agency engagement that MAPPA provides can be an effective response. However, a report by His Majesty’s inspectorate of constabulary and fire and rescue services in 2021 identified a lack of multi-agency management of individuals who posed the most significant risk of harm to women and girls through domestic abuse. As part of the inspection, HMICFRS asked forces to identify the five individuals whom they considered posed the highest threat to women and girls within the local force area. Of the 40 individuals identified, only three were being managed under MAPPA.
Additional guidance for category 3 offenders who are perpetrators of domestic abuse has been welcome, but HMICFRS noted in its 2022 MAPPA review that there
“is still not a clear enough pathway for those who pose a risk of harm through domestic abuse, particularly for those who commit lower-level offences over a sustained period of time but pose a real risk of harm to their victims through long-term abuse.”
The impact that the clause might have, while welcome, as my hon. Friend the Member for Birmingham, Yardley said, is relatively limited, given the number of individuals who have been convicted of coercive and controlling behaviour since the introduction of the offence in 2015. Fewer than 2,000 people have been convicted of that offence, and yet—I think this is probably one of the most important points that I will make during this Committee—the data from the crime survey in England and Wales estimates that 2.1 million people experienced domestic abuse in the year ending 2023. Not every case of domestic abuse will include instances of coercive and controlling behaviour, but given the centrality of such offending behaviours in many cases of domestic abuse the number of CCB convictions still appears very low. Since the provision will apply to that relatively small cohort of offenders, it is difficult to discern what huge impact it will have.
I am interested to hear from the Minister about any additional provisions that her Department has been looking at in preparation for the Bill in relation to MAPPA and perpetrators of domestic abuse, particularly if it has looked at other measures that would make individuals who have committed domestic abuse MAPPA-eligible, because repeat perpetrators of this appalling violence against women and girls too often get away with their patterns of criminality and go on to commit more violence and cause more harm.
As I said, we fully support the clause and will vote with the Government, but we fear the level of impact that it will have. The criminal justice system is in crisis, and the Government are completely failing to address the shocking levels of violence against women. As with much of the Bill, we do not oppose the measures, but we are left wondering if these tweaks are all that the Government have to offer a system in crisis.
Laura Farris
I thank the shadow Minister for his speech and for supporting the clause. In answer to his final criticism that we have abandoned women and girls, the Serious Crime Act that created the offence of coercive, controlling behaviour received Royal Assent in February 2015. With respect to the hon. Member for Birmingham, Yardley, it predates her arrival in Parliament, but we created that criminal offence and we have been evolving its implementation since.
Laura Farris
I will make some progress. I want to respond to the points raised by the shadow Minister. [Interruption.]
The Chair
You do not need to apologise, but we are more freewheeling in Committee. If the hon. Lady wants to come back in later, she can.
Laura Farris
The provision has been welcomed by the Domestic Abuse Commissioner. She said:
“This provision will help to ensure that perpetrators are properly managed in the community and victims can be kept safe from further harm. The Commissioner welcomes this provision and will continue working with the government to develop proposals for the effective management of perpetrators.”
In answer to the hon. Lady’s question, in the data we have, which is from 2022, 566 people were convicted of coercive control, and it is estimated that, as she suggested, around 200 would be serving 12 months or more and would have been eligible for MAPPA management. We simply make the point that the MAPPA framework is used for the most serious offenders; whether it is a sexual, violent or terrorist offence, people qualify for MAPPA if their sentence is one year or more. We are not doing anything unorthodox or irregular in having that criteria in relation to coercive control.
I will respond to one of the shadow Minister’s final points. He asked whether there was provision for other forms of domestic abuse to fall under MAPPA management —the answer is yes. We strengthened the statutory guidance to clarify that MAPPA management can be considered by the relevant agencies in all domestic abuse cases. I hope that answers his query.
Jess Phillips
I did not find the piece of paper from Refuge, but I knew it would be about 200 people. Just to make it clear for the record, in one ward in my constituency there will be 200 violent perpetrators of domestic abuse. To the Minister’s point that she did not wish to take my intervention on the piece of legislation that was passed, I will never, ever criticise this Government on that. They have passed lots of legislation, so the skins of goats have had lots of words written on them. It means absolutely nothing—pieces of words on goat skin mean absolutely nothing if they are not then properly resourced, managed and implemented in our communities. The women in refuge accommodation speak of little else than what a nirvana it has been recently under this Government.
Laura Farris
I don’t—[Interruption.] Yes, it has.
The clause extends eligibility for polygraph testing to offenders who have been convicted of murder and are assessed as posing a risk of sexual offending on release. It extends eligibility to those who are serving multiple sentences where the index sex offence will already have expired. To give a rather grim illustration of what that might look like, if somebody is sentenced for convictions of rape and murder, by the time of their release the sentence for the sex offence will have expired, and they would therefore not automatically qualify for polygraph testing without the extension that the clause provides.
The clause also extends polygraph testing to a cohort of individuals who have received non-terrorism sentences. At this point, I want to pick up on what Jonathan Hall told the Committee in evidence just before Christmas. This measure could apply, for example, in the case of someone who was convicted of conspiracy to murder but whose offences were an act of terrorism, took place in the course of an act of terrorism or were committed for the purposes of terrorism, if they committed their offences before the relevant legislation came into force.
The way in which we make that assessment will depend on the judge’s sentencing remarks. If, in sentencing, the judge made an express reference to the offending being in the course of terrorism, the extension provided by the clause would make polygraph testing applicable. We define this cohort as historical terrorism-connected offenders, and the polygraph testing licence condition is currently unavailable as a tool to manage the risk that they pose, although it would be available for an individual who commits the same offence today.
The intention of the clause is to fill the gap and provide more effective risk management in the community. I reassure the Committee that that does not mean that the person can be recommitted to prison. It is an assessment of their licence conditions. It affects their risk management. If it should later transpire that they have breached licence conditions, they could be recalled, but not by the polygraph test alone. As a whole, the clause will ensure that polygraph testing can be used to strengthen the management of those who pose a risk of sexual offending and those who committed historical terrorism-related offences.
Jess Phillips
I absolutely do not expect the right hon. Gentleman to have right now the data that I am about to ask for; that would be unreasonable. He raised the case of DVPOs, which are not in practice being used quite yet; it is still just a pilot up in the north-west. I wonder how many cases we have seen where this has happened under the restraining order that he outlined. I just want to feel confident that courts will actually do this, because I can envisage thousands of cases where it would absolutely be the right thing to be happening, but I have personally never seen it in cases of acquittal. I just wonder whether some sort of data—I do not expect it now—could be provided to the Committee about how it has worked with regard to restraining orders.
Criminal Justice Bill (Eleventh sitting) Debate
Full Debate: Read Full DebateDepartment: Home Office
Jess Phillips
Main Page: Jess Phillips (Labour - Birmingham Yardley)Department Debates - View all Jess Phillips's debates with the Home Office
Criminal Justice Bill (Eleventh sitting)
Jess Phillips ExcerptsTuesday 23rd January 2024
(2 years, 6 months ago)
Public Bill CommitteesRead Full debate Criminal Justice Bill 2023-24 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 23 January 2024 - (23 Jan 2024)
Chris Philp
It is a pleasure to serve under your chairmanship, Sir Robert—I think for the first time, though I hope it is the first of many. I am grateful to the shadow Minister for explaining his two amendments to clause 38, which provides for nuisance begging directions. Before I respond to his amendments, let me provide a little wider context for clauses 38 to 64, which the Committee will be relieved to hear I do not propose to repeat at the beginning of our debate on each clause.
These clauses will replace the Vagrancy Act 1824, which was prospectively repealed by the Police, Crime, Sentencing and Courts Act 2022, as the shadow Minister said. The hon. Member for Stockton North and I fondly remember our extensive debates on that subject some years ago. This package includes directions, notices and orders where someone is nuisance begging or nuisance rough sleeping; offences for nuisance begging and for facilitating organised begging; and a replacement offence for being found on enclosed premises for an unlawful purpose.
The Government and, I think, the House as a whole take the view that nobody should be criminalised simply for being destitute or homeless. That is why we are committed to bringing into force the repeal of the outdated Vagrancy Act 1824, using regulation-making powers under the PCSC Act—a Henry VIII power to which I presume the shadow Minister does not object. We have put in place a substantial package of support for people who are genuinely homeless, sleeping rough or at risk of doing so. Engagement and offers of support must continue to be the starting point in helping those who are begging genuinely or sleeping rough to move away from a life on the streets and into accommodation. However, we have heard from frontline local authority partners and police that there is still a role for enforcement where that engagement does not work.
It is important not to conflate begging and rough sleeping—although of course the two can be linked—which is why we treat them separately in the Bill. The Government consulted on replacing the Vagrancy Act in 2022 and the majority of respondents were in favour of introducing replacement begging offences, recognising the harm that it causes. We set out our plans in more detail in the antisocial behaviour action plan, published in March 2023.
Accordingly, clause 38 provides that where an authorised person, defined in subsection (7) as a police constable or the relevant local authority, is
“satisfied on reasonable grounds that the person is engaging, has engaged, or is likely to engage, in nuisance begging”,
they can issue a direction to move on. We will come on to the definition of nuisance begging, which is set out in clause 49. Such a direction will require the person to leave the specified location and not to return for up to a maximum of 72 hours, giving respite to those who are negatively impacted by the nuisance. It can also include a requirement for the person to take their belongings, and any litter they have been responsible for, with them. The direction must be given in writing, and it is an offence not to comply with it. The penalty for failing to comply is up to one month’s imprisonment or a level 4 fine, which is up to £2,500, or both.
Jess Phillips (Birmingham, Yardley) (Lab)
Can the Minister tell me how somebody looks likely to beg?
Chris Philp
That is a facts-specific determination, but it might, for example, be that someone is carrying a sign soliciting funds, has positioned themselves in a particular location with a receptacle for collecting money, or is positioned near an ATM. It might be that someone has been begging and, although they have not been observed doing so by a police officer, there is a reasonable suspicion that they might do so in the future.
The meaning of nuisance begging is not any begging; it is quite precisely defined in clause 49, which we will come to. Begging in general is not being criminalised. That was the purpose of repealing the 1824 Act, which was very wide in its scope. We are defining nuisance begging in this Bill to be quite precise and targeted. Obviously, we will discuss that in detail, probably in the next hour or so.
Jess Phillips
What concerns me, regarding certainty of referral, is if there are cases where people—where I live in Birmingham, the biggest problem in nuisance begging is Romanian women who are clearly being trafficked; there are no two ways about that. I fear their criminalisation more so than their traffickers’ criminalisation, which is nil. I wonder whether there could be a mechanism for referral directly to the national referral mechanism. Both the police and local authorities act as first responders in the national referral mechanism already, so that would not need a change in the law. Maybe that is a compulsory referral that could be made.
Chris Philp
The hon. Lady raises an important point. As she says, first responders, among others, are already under an obligation—I think a statutory obligation—to make referrals into the national referral mechanism. I suspect that it was the Modern Slavery Act 2015—I am looking to my colleague, the Under-Secretary of State for Justice, my hon. Friend the Member for Newbury, for assistance; it probably is that Act—that enacted our obligations under the ECAT, or Council of Europe convention on action against trafficking in human beings, treaty. So, those obligations already exist. I would certainly agree with the hon. Lady that, if first responders—either the police or indeed local authorities—think that someone is a victim of trafficking or modern slavery, they should certainly make the referral into the national referral mechanism.
In terms of potential prosecution, obviously there are provisions in the Modern Slavery Act 2015, where someone is the victim of trafficking, that provide protection in those circumstances. I would also say that there are some circumstances in which referrals into support are not necessary. There are many cases—probably the majority of cases—where they are necessary, and I would expect that to happen in those, whether it is the police or a local authority, but there are also circumstances in which it is not necessary, or where the help has been repeatedly refused in the past. I therefore think that a blanket requirement on the face of the Bill, as per the amendment, probably is not appropriate.
However, again, I agree with the spirit enshrined in the shadow Minister’s amendment, and I would like to put it on record that the expectation from the Government, as well as, I suspect, from the Opposition, is that, where somebody needs support—mental health support, drug treatment support, alcohol treatment support, domestic abuse support, or protection from trafficking and other vulnerabilities—the police and local authorities will make the appropriate referral. But that will not necessarily apply in all cases, whereas the amendment, as drafted, covers everyone, regardless of whether there is a need or not.
Amendment 141 is similar to amendment 140, which was in the previous group. As I said then, I am not sure that it is possible or desirable to set out all the possible circumstances in which an individual may need access, so guidance is the right place to put that.
Jess Phillips
The expectation, rather than necessarily the duty in law, is a referral. Beyond a referral, what happens if a woman nuisance begs in the 1,000 days that it takes to get referral through the national referral mechanism? It takes women 1,000 days to get a conclusive grounds decision, and it takes men 500. Or what if someone is waiting for a mental health referral? As I think every Member will know, you might as well wee in the wind. What happens if they nuisance beg in the 1,000 days, or a year, from when they are first helped to when they can get counselling in a domestic abuse service? What happens in the gap?
Chris Philp
If someone is given a nuisance begging prevention notice, the expectation will be that they comply with it. If there is any prosecution for a breach, it may be that the protections in the Modern Slavery Act would apply. Again, if a police officer or local authority officer thinks there is a problem with trafficking, it may well be that they think it inappropriate to make the prevention order. It is a power, not an obligation; they do not have to give the notice. We would expect the officer to have regard to the circumstances of the individual, which might include those the hon. Lady described. The national referral mechanism can take quite a while, although it is speeding up, but it may be that other support is available much more quickly than the support that follows an NRM reasonable grounds decision.
To repeat the point, the expectation is that support is made available where it is necessary, but support could be provided hand in hand with a nuisance begging prevention notice. The authorities could seek to prevent nuisance begging, which is bad for the wider public, by using the notices and other powers, while at the same time ensuring appropriate safeguarding. The two are not mutually exclusive; it is possible to do both at the same time. I also draw the Committee’s attention to clause 39(7), which is relevant to the intervention. It says it is only an offence to breach the conditions “without reasonable excuse”. For example, if someone has been coerced into behaviour that results in a breach, that coercion could—it would be for the court to determine—be a reasonable excuse, and therefore a defence.
I hope that that explains the purpose of clauses 39 to 42. Although I understand and agree with the spirit of the amendments, they are not necessarily the right way to achieve the objectives that the shadow Minister set out.
Alex Norris
I am grateful for the Minister’s response. The “reasonable excuse” provision in clause 39(7) gives a degree of comfort, but the reality is that, particularly in the trafficking cases mentioned by my hon. Friend the Member for Birmingham, Yardley, individuals will not say that they have been coerced into nuisance begging. Instead, they will take the punishment; they will not be able to proffer what would be considered a reasonable excuse. That is our concern.
The debate on amendment 141 mirrored previous debates, and I am happy not to move it on the basis of the answers I have had. On amendment 142, I hear what the Minister said about the three-year duration being a maximum, not a target, but I fear that because it is in the Bill, it will become a magnet. With regards to police constables, we know about their training and codes of practice, so we can be confident about the criteria that they are expected to apply, but we are concerned that the Bill is—for good reason—drafted in such a way that very junior local authority officers could be making that decision.
Alex Norris
Who do not know anything about the national referral mechanism and have no criteria to make a judgment against. Frankly, an authorised person who works frequently in a town centre or on a high street might just really not like someone. This power would be available to them, with minimal oversight, and there would be little recourse against it, which is why I think that three years is too much. I will push the amendment to a Division as a result.
I am grateful for what the Minister said about amendment 138 and support first; I completely take him at face value, and that is clearly what he said. My anxiety, as we enter the final year of this Session of Parliament, is that I have done lots of these Bills, and Ministers change. I thought that I had a really good concession from a Minister on the Levelling-up and Regeneration Act 2023, and the next day the Minister changed; I have learned from that. What is in the Bill is important, and I am really keen that that message be in it, so I will also push amendment 138 to a Division.
Question put, That the amendment be made.
Chris Philp
I would like to deal first with clause 49, which defines, as I said earlier, the concept of nuisance begging, which underpins the behaviours being targeted in the preceding clauses that we have debated this morning.
The definition has two parts. First, subsection (2) defines a number of specific locations where begging will automatically be considered to constitute nuisance begging. These are locations where people are likely to be handling money or are less likely to be able to get away from the person begging. The locations include forms of public transport, including bus, tram and train stations, buses, trams and trains, taxi ranks, outside an area of business, near an ATM, near the entrance or exit of retail premises, and the common parts of any buildings.
Subsection (3) provides that it will also be considered to be nuisance begging when a person begs in a way that causes or is likely to cause: harassment, alarm or distress to another person; a person to reasonably believe that they or anyone else may be harmed or that the property may be damaged; disorder; and a risk to health and safety. Where necessary, those terms are further defined in subsection (4).
Distress includes distress caused by the use of threatening, intimidating, abusive or insulting words or behaviour or disorderly behaviour, or the display of any writing, sign or visible representation that is threatening, intimidating, abusive or insulting. That can include asking for money in an intimidating way or abusing people who refuse to give money, all of which I hope hon. Members will agree are behaviours that should not be tolerated on our streets and to which people should not be subject.
Jess Phillips
This is quite an exhaustive list, but much of the law is often London-centric. One of the problems where I live, certainly as a woman driving late at night, is people stopping traffic at road intersections. The feeling of intimidation can differ from person to person, but as a woman on her own at a crossroads in Birmingham, it feels intimidating to have people standing outside my car. How can we deal with that particular issue?
Chris Philp
I recognise the hon. Lady’s point that we need to legislate for the whole country, not just London, and I say that as a London MP. We want to look after the entire country. I accept and agree with her that being approached in one’s car when in stationary traffic or at a junction can be very alarming and worrying for everyone, but particularly for women. There are two things in the Bill that I think may assist. Clause 49(2)(e) specifically references a carriageway, which is defined in subsection (4) as having the meaning given by the Highways Act 1980, and I think that includes a road, so that would be covered.
Secondly, and more generally, clause 49(3) provides that the nuisance begging definition is engaged, or the test is met, if the person begging does so in a way that has caused or is likely to cause harassment, alarm or distress. That means that there is a “likely to cause” protection as well. I think that the combination of those two provisions—but especially the first, which expressly references a carriageway, meaning road, as defined in the 1980 Act—expressly addresses the point that the hon. Lady has reasonably raised.
To return to the substance of the clauses, it is important to include in the definition of nuisance begging behaviours that constitute a health and safety risk. There are many instances, exactly as the hon. Lady has just said, where people approach cars stopped at traffic lights. In addition to being on a carriageway, as caught under clause 49(2)(e), and in addition to potentially causing or being likely to cause harassment, alarm or distress, as caught under clause 49(3)(a), it may also be the case that they are causing a road traffic risk. Moreover, they could be causing a health and safety risk if they are blocking fire exits or routes that emergency services may need to pass down. I hope that shows that we have thought about this quite carefully.
Alex Norris
Again, I will not speak in great detail, because we have covered most of the arguments under previous clauses. Clause 48 creates an offence of nuisance begging, with a punishment of up to a month in prison or a fine up to level 4 on the standard scale. I just want to understand a little more why the Minister thinks that the crime is needed as well as the three orders—the three different civil powers—in the legislation. Presumably, he would assume that those steps would be taken before this measure would be used and someone would not be sent straight to prison. It is really important to say that we do not think, particularly in the case of people with substance abuse or mental health issues, that a merry-go-round of short-term prison sentences is likely to prove effective, because it never has done previously.
Clause 49 is a particularly interesting one, because it gives the definition of nuisance begging and tests the Minister’s point that the intent or the effect of the legislation is not to criminalise or prohibit all begging. That is a challenging argument to make, because if we look at subsection (2), on the locations where nuisance begging is engaged, and if we take those 10 locations together—in aggregate—that is a huge winnowing of the public space; indeed, it is virtually the entire town centre or high street. I think that that is by design rather than by accident. I think that if we talked to the public about those locations, they would think that they are the right ones. This is not an argument against it, but it is about understanding that the effect of the decision being taken here will be a prohibition on begging in the entirety of an amenity, because all that is left after 5 metres is taken from the entrance or exit of a retail premises is just a little bit of curtilage or carriageway—but, actually, the carriageway itself is excluded, as the Minister said, so after that there really is not very much left.
Alex Norris
As my hon. Friend says, there would just be fields.
I am keen to understand from the Minister that subsection (3) is an “or” provision to subsection (2) and not an “and” provision—[Interruption.] The Minister nods. Subsection (3) is therefore a significant increase, in the sense that the locations cease to matter quite quickly so long as the nuisance begging
“has caused, or is likely to cause”—
has yet to cause, but may well cause—harassment, possible harm or damage, or a risk to health or safety. This is a very broad and subjective test. I understand what training we could give to a constable, but I am interested to hear from the Minister about what training we can give to local authorities, or at least what guidance he intends to produce regarding the application of this subjective test. We do not intend to oppose this clause but, combined with the clauses before it, the total effect will be that the distinction between begging and nuisance begging, about which the Minister made a point, will not exist in any practical sense. The provisions are drawn broadly enough to apply in virtually any case where an individual wants to beg. We need to know what criteria the authorities are supposed to be working against, so I am keen to hear the Minister’s answer.
Chris Philp
In relation to the first question about why the offence is set out in the clause when we already have the notices, orders and directions—three interventions—that we have discussed already, there may be some particularly egregious or persistent cases where the criminal sanction is necessary.
Of course, it is for the court to decide what is appro-priate. We have already discussed that there is now a presumption—or there will be shortly, once the Sentencing Bill passes—against short sentences for those people not already subject to a supervision order from the court, so a custodial sentence is very unlikely to occur for a first conviction in any case. For offences of this nature, it is open to the court to impose a non-custodial sentence, even for subsequent offences where there is already a supervision order from the court in place. That might include a mental health or alcohol treatment requirement, a drug rehabilitation requirement and so on. It does not follow that the court having the power to impose custody will mean that it will necessarily choose to do so. I hope that answers the hon. Gentleman’s question. It is a last resort power, but it is important that the police have that available to them.
In relation to the definition of nuisance begging—to which no amendments have been proposed—we want to make sure that people are able to go about their daily business; the hon. Member for Birmingham, Yardley set out in her intervention how nuisance begging can cause intimidation. The list of locations is based on feedback received from local authorities, business improvement districts, and retail associations and their members, based on their own practical experience. That feedback came from the consultation we conducted in 2022 and subsequently, and it is why the list of locations has been constructed in that way that it has.
Jess Phillips
As the Minister has said, I have outlined the places where I do feel intimidated. There was a homeless man—he died recently—who used to sit outside the local Asda where I live. He was a lovely man who chatted to everybody, and he was not intimidating at all. Would this definition account for him? He did not do anything wrong and I do not think he caused anyone any offence. Would he have fallen under this definition?
Chris Philp
Well, if he was sitting within 5 metres of the retail entrance, then yes, he would have come under this definition. However, I would point out that he would also have come under the definition set out in the current Vagrancy Act 1824; indeed, under that Act, he would have been in scope wherever he sat. If he was begging at the Asda entrance, then he was already breaking the existing law. This change is narrowing the definition a great deal. The fact that he was technically infringing the current Vagrancy Act, but was not arrested or enforced upon, probably illustrates the point that the police and local authority officers do exercise reasonable judgment. If they were not, he would have been arrested.
I hope that what would happen in such cases is as we discussed earlier; if someone like that man needs assistance of some kind—with mental health support, alcohol support, or whatever the issue may be—the expectation of the Government, and probably the Opposition, is that that intervention will happen. It would be interesting to find out if any attempt was made by the local authority in Yardley to assist that gentleman with whatever issue or challenge he may have been struggling with. To repeat the point, the provisions in this clause significantly narrow the scope of criminalisation in the law as it has stood for the last 200 years.
Question put and agreed to.
Clause 48 accordingly ordered to stand part of the Bill.
Clause 49 ordered to stand part of the Bill.
Clause 50
Arranging or facilitating begging for gain
Question proposed, That the clause stand part of the Bill.
Jess Phillips
I feel differently about begging compared with nuisance rough sleeping. I have taken the words of my later mother on board. My brother lived on the streets for about six years in total, on and off, while he was in and out of various institutions. He used to annoy me. I did not like the trouble that he brought to my family’s door. He was, without a shadow of a doubt, a nuisance. I remember my mum saying to me, “Would you swap places with him? You seem to want to rail against him. Do you want his life? Would you prefer to be sleeping outside, desperate for a fix of something because of traumas you have suffered? Would you want to swap places with him?” When I hear the view that people like my brother are merely a nuisance to businesses, all I have to say is, “Walk a mile in his shoes.”
Do not get me wrong—my brother was not perfect. He was a nuisance to my family; indeed, he was much more than that. Having worked for years with homeless people—actual homeless people—I find that Ministers often try to mix up the definitions of “rough sleepers” and “homeless people”. The issue of homelessness in our country is massive. For example, at any one moment there are at least 116 people in my constituency living in hotel accommodation. They are the kind of people who end up on the streets in the end, and we seem to mix up rough sleeping, rooflessness and homelessness quite badly.
In my years of working with both the roofless and the homeless, I have never met a person who would not move on. They might have been asleep. They might even have been off their faces and physically not capable of moving on when a copper, or even a shopkeeper, came up to them and said, “Look, mate, can you shove out the way?”
While waiting for a train at Leeds station after a music festival, I myself have slept in front of the WH Smith there. When they opened the barrier behind me and said, “Could you shift it?”, I got up and shifted it. That is also my experience with homeless people. What I find frightening is the idea that we may go on to problematically criminalise them further, making their situation much more complicated. The Minister speaks with verve about the Government’s commitment to tackle rough sleeping, but that is a triumph of hope over experience. If we go to any street in any city, or even town, we will see that rough sleeping is on the up. Anyone who has worked in this area will know of the ridiculous headcounts that are done but that do not account for the actual reality of homelessness. The figures are totally, completely and utterly fudged. They do not, for example, take account of women who are sofa-surfing because they are being sexually exploited by men. The data is total nonsense.
A single man on the housing waiting list in Birmingham has to wait a minimum of three years to get a property. They are put in terrible temporary accommodation, which the Government refuse to regulate, despite the fact that they are paying millions of pounds to landlords who are literally exploiting both the taxpayer and the homeless person. They will be off the street, but if people want to talk about them being picked up in luxury cars, they should knock themselves out by looking at some of the exempt accommodation, which the Government refuse repeatedly to regulate.
It is no wonder that Leonard in my constituency knocks on the door of my office week in, week out, asking for a sandwich, because he cannot bear to go back to the exempt accommodation that he shares with drug addicts. He is an elderly man, so he goes out and sits and begs again. Yes, the Government figures might say that he is off the streets, but let me say to all Members present that those people are in dangerous, unsafe accommodation.
Chris Philp
I will in a second. The Opposition are not proposing any constructive alternative to protect shopkeepers, for example. Both sides agree that the first step should always be support, that we need to end homelessness by tackling its causes and that, first of all, we need to support people to get off the streets and into accommodation. We should address underlying causes such as mental health issues, drug issues and alcohol issues. We agree on all that. However, if those interventions do not work, we need to make sure that there is some residual power as a backstop or last resort when a business premises or high street gets to the point of being adversely affected. That is what we are proposing here.
Some other jurisdictions—some American cities such as San Francisco, for example—have either ceased to apply rules like these or have completely abolished them. That has led to a proliferation of people sleeping in public places and has really undermined entire city centres. I understand the points that the Opposition are making, but we need something that will act as a backstop to protect communities and high streets. We have tried to construct the clause in a way that gets the balance right, and we will debate the details when we come to clause 61.
I will make a final point about moving people on before I give way to interventions and conclude. The hon. Member for Birmingham, Yardley said that, often, if police or local authorities—she gave the example of people running a train station—ask people to move on, those people tend to comply. That is because of the sanctions in the 1824 Act. If we completely repeal that without there being anything to replace it—that is what the Opposition essentially seem to be suggesting—and an officer goes up to someone and says, “Would you mind moving on, please?” then that person could just say, “No, I don’t fancy moving on”. There would be no power to do anything. The officer, the person running the train station or the shopkeeper would have to say, “Look, I am asking you nicely: can you please move on?” If the person in question said, “No,” then nothing could be done at all.
The shadow Minister mentioned trespassing legislation, but the streets are public and that legislation applies to private property. It does not apply to a pavement. It would not apply outside a train station—maybe it would apply inside; I am not sure. I am just saying that, if the statute book were to be totally excised and someone was asked to please move on, there would be no ability to ensure that that happened. I accept that a balance needs to be struck, and we have tried to do that through a definition in clause 61, which we will debate.
I posed questions back to the Opposition, but, with respect, I do not think I heard the answers in the Opposition’s speech. I am sure that we will continue to debate the issue after lunch, particularly when we come to clause 61. We will no doubt get into the detail a bit more then. I had promised to give way to the hon. Member for Stockton North.
Chris Philp
I have a great deal of respect and affection for the hon. Gentleman; he knows that, having spent so many hours with me in Committee. With respect, the question to ask is not about the current situation—although there are examples; I will show him photographs after the meeting of tents on Tottenham Court Road that retailers do not particularly appreciate. The question to ask is about what would happen in the future as a consequence of a total repeal. That is the question that needs to be answered.
Chris Philp
We are about to hit the time limit, so maybe we can discuss further when we debate the other clauses.
The question is: what would happen if we were to repeal? To see what would happen as a result of what the Opposition propose, let us look at other cities around the world; I am not doing that because I have imperial designs, but as a case study. Other places such as San Francisco have done it, and the results have been terrible. That is why I am a bit wary of doing what the Opposition propose.
Question put, That the clause stand part of the Bill.
Criminal Justice Bill (Twelfth sitting) Debate
Full Debate: Read Full DebateDepartment: Home Office
Jess Phillips
Main Page: Jess Phillips (Labour - Birmingham Yardley)Department Debates - View all Jess Phillips's debates with the Home Office
Criminal Justice Bill (Twelfth sitting)
Jess Phillips ExcerptsTuesday 23rd January 2024
(2 years, 6 months ago)
Public Bill CommitteesRead Full debate Criminal Justice Bill 2023-24 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 23 January 2024 - (23 Jan 2024)
Chris Philp
First, I thank the shadow Minister for giving consideration to the comments I made before the lunch break. That was very helpful and perhaps facilitates a more thoughtful debate.
The shadow Minister referenced the comparison I have drawn with San Francisco and other cities on the American west coast and elsewhere. The point I was making was a slightly broader one. Essentially, some of those cities—Oakland, California is another on the bay—have adopted a very permissive approach to public drug consumption, antisocial behaviour, rough sleeping and things such as shoplifting, which we have debated previously.
A consequence of that very liberal approach has been widespread disorder on the streets of San Francisco and other cities. That has really undermined the quality of life in those places, and I do not think it has done any favours to the people who end up living those lifestyles either. There is no doubt that there is also a lack of treatment and support, but that very liberal approach has led to very bad outcomes. Some of those American cities, which are generally Democrat controlled, as the Committee can probably imagine, are beginning to reverse some of the measures on drug liberalisation, for example, because they have led to such bad outcomes. A complete removal of current laws would be a significant step in that direction, and that would concern me. That was the broader point that I was making.
Jess Phillips (Birmingham, Yardley) (Lab)
To go back to a conversation that we were having prior to the sitting about fentanyl in the US, does the Minister agree that the very strict rules about these sorts of things in various other US states have also led to terrible outcomes with regard to substance misuse?
Chris Philp
The tolerance of drug consumption in public places that we see in San Francisco and elsewhere has led to very bad outcomes. There are also serious problems with synthetic opioids in North America, which are, thankfully, not replicated in the UK. We are very anxious to prevent that from happening, as the hon. Lady can imagine.
The shadow Minister also suggested that there were other powers that could be used in some circumstances. He specifically referenced CPNs. We will debate those a bit more later, but they do not have the same powers as the notices that we are discussing. For example, a CPN does not allow for positive requirements to be set out—a requirement to attend treatment, for example—so it is not quite the same thing. CPNs also require individualised consideration. Many of the notices that we are discussing do too, which is fine, but they are quite intensive instruments to use.
Finally, the shadow Minister denigrated the approach taken in these clauses by saying that they simply criminalise rough sleeping without offering any support. They obviously do not do that. They criminalise nuisance rough sleeping, with “nuisance” defined in clause 61. [Interruption.] I can tell that he is eagerly anticipating our discussion of the precise provisions of clause 61.
On the support point, the purpose of some of these provisions is to help people into support. I think all of us would agree that the first step should be to support people with mental health issues, drug problems and alcohol problems, and to support them into housing. Everybody agrees that support should be the first step. That is what the police and local authorities should do initially, but if that fails and the rough sleeping is preventing a business from operating or adversely impacting other members of society, there needs to be some backstop power. That is the balance that we have tried to strike in these clauses, as we discussed before lunch.
Question put, That the clause stand part of the Bill.
Chris Philp
The behaviour concerned might actually cause damage, distress or disruption, but it might also be capable of doing so. For example, someone might set up a tented encampment in a place that blocks a business premises. Let us imagine that they set it up at 4 o’clock in the morning, when the business is closed and there is no one coming in or out. At that point, it is not actually causing disruption. Let us say that the business wants to open at 6 o’clock in the morning. Would we want the police to wait until the business opens and the customers or the employees try to come in, when disruption is actually caused and the provisions are engaged? The police might want the power to take action not when the disruption is actually caused, but when it becomes reasonably foreseeable that it will be—in this case, in advance of the business premises opening.
Members can imagine circumstances like the one I just outlined where, although disruption is not being caused at that moment, it is clear that it is capable of being caused, and it is reasonably foreseeable that such disruption will be caused.
Jess Phillips
I just wonder what else that is annoying that might be outside the front of someone’s business that we could criminalise. The bin lorry? It seems like there are loads of things. Cars get parked outside the front of businesses where I live, and it impedes the Warburtons van bringing in the loaves. The literally happens outside the corner shop right next to my house—bloody criminal! Why is it just homeless people that are a nuisance? I find cars to be a massive nuisance all the time. There are loads of things that are a nuisance. Kids going in and out of school? Nuisance. Criminalise ’em!
Chris Philp
I thank the hon. Lady for her characteristically emollient intervention. We are defining precisely what “nuisance” means, not using it as a general term. It means damage, disruption, distress or a health, safety or security risk. We are being precise about what we mean. We are not using it in a general sense; we are being specific.
The hon. Lady mentions a car blocking the highway and asks whether we should criminalise that. I refer her to section 137 of the Highways Act 1980, with which she is no doubt intimately familiar, which does precisely that. It criminalises wilfully obstructing a highway. We are not just picking on people whose disruption is associated with rough sleeping. There are plenty of other things on the statute book, including wilful obstruction of the highway, that seek to do similar things. I do not think it is reasonable to say that this is a unique set of provisions that have no analogues anywhere else on the statute book. [Interruption.] Would the hon. Lady like to make another intervention?
Jess Phillips
Oh yes, absolutely. It seems to me that there is this idea that it would cause distress to somebody to see a homeless person in a tent. I have greater faith in the British public than that. They are not just immediately distressed by somebody who is down and out. I am not immediately distressed by homeless people; I am distressed that they are homeless, but my distress is directed at the Government—who, by the way, I also find to be quite a nuisance, but I am not for one second suggesting that we should criminalise the Minister.
Chris Philp
I thank the hon. Lady for her forbearance. Of course we want to combat homelessness. That is why £2 billion is being spent for that purpose. On the serious point, the Government’s position is categorically not that homeless people—or rough speakers, to be precise—cause distress. That is not what the Bill says. Distress is defined in clause 61(5) as being caused by
“the use of threatening, intimidating, abusive or insulting words or behaviour, or disorderly behaviour”.
The Bill is not saying that rough sleepers in general automatically cause distress. It is only saying that threatening, intimidating, abusive or insulting words are taken as causing distress. It is really important not to mischaracterise what the clause does. It is very precise and specific, and it is very limited, for all the reasons that the Opposition have been pointing out.
Jess Phillips
Just to push my example, if I am obstructed in my daily life by a group of schoolchildren doing exactly that—using abusive, insulting words, saying “bitch” and things when I walk past—why is that any different? Surely causing distress to people is already illegal, so we do not need to define it in terms of rough sleepers.
Chris Philp
The hon. Lady asked what happens if she was insulted in the way she describes, which I am sure rarely happens. There are provisions in the Public Order Act 1986, particularly sections 4, 4A and 5—
Chris Philp
I am not sure if Hansard is going to record that, but I will take it as a compliment. I do try to stay on top of the detail. There are provisions in that Act that would afford the hon. Lady some protection in those circumstances.
This definition is very important, and we are trying to strike a balance. We do not want to criminalise rough sleeping in general or make a generic assertion that rough sleeping causes distress automatically. It does not, and the Bill does not say that. We are trying to define some very precise circumstances for when this clause is engaged to ensure that if interventions to support people either do not work or get declined, there is some backstop power to ensure that members of wider society do not suffer adverse consequences. We are trying to achieve that protection, and this clause is carefully crafted to strike the right balance.
Jess Phillips
I will not speak for long. The Minister and I have had a back and forth, and for the benefit of Hansard, when I called him a geek it was definitely a compliment. He is without a doubt on top of the detail not only of this Bill but of how it interacts with other legislation. It is a pleasure to sit on a Committee with a Minister in that position. I am a massive geek about how all these nice subsections will actually pan out in reality.
My main problem with the clause, although I appreciate it is less specific than the one on begging that we debated this morning, is that I am still at a loss about why we need laws specifically about nuisances caused by the most vulnerable people in society. There are so many things in the public realm that cause me much more nuisance than homeless people or people rough sleeping, such as the sexism that women experience in the street all the time. I get that we have to replace the vagrancy law and that we need guidelines, but do we really need specific laws about those people? Absolutely we need the provisions in the Public Order Act 1980, the year before I was born—
Jess Phillips
Oh, 1986. I was actually five years old then. I was a big fan of it back then.
But why do we need a specific law about this group of people? Why can they not be covered by the laws on the nuisances, insults and harassment that we can all define easily? That is the bit that I find alarming. If people are shooting up in the street or are openly engaged in dangerous practices such as pimping people, we are talking about a different thing, but there are laws covering those things already. If only I were the Minister, I could tell the Committee which ones. I am not him, but I am fairly certain they exist.
My brother, who slept on the streets, said to me, “It isn’t the drugs that will kill me; it’s the stigma. The stigma is the thing that is going to kill me.” He has been clean for seven years, and he said that when he stands at the school gate to pick up his children, he feels like everyone knows he was a homeless drug addict. The idea that you are less—that you are a vagrant, a tramp—never leaves you. That is why I do not want to see people like my brother, who, as I said earlier, was a nuisance to me on many occasions—I just do not want to write that stigma into the law.
Andrew Jones (Harrogate and Knaresborough) (Con)
I rise to make a couple of points. The Minister made a very important point: we have to get the balance absolutely right here. We have a case in Harrogate at the moment concerning a pavilion in Crescent Gardens that was used by rough sleepers in a series of tents in September. They were there for two weeks, and it has been fenced off ever since.
I have absolutely no doubt that when the hon. Member for Birmingham, Yardley says that she and the British public are not distressed by homelessness, she is absolutely correct. People want to see homeless people supported into accommodation and the underlying causes tackled. At the same time, there was a significant number of complaints from local residents about antisocial behaviour coming from that group of tents. Getting the right balance between protecting communities and offering support to homeless people is very difficult. In our case, we have a very impressive homeless charity, Harrogate Homeless Project, which is next door to my office in the middle of my constituency.
I just want to make sure that the Minister is clear that the balance is critical. I have been much reassured by his words, but it is an important balance, and we are dealing with some of the most vulnerable people in our community.
Alex Norris
I got really excited; I thought we would sneak one through! It would have been a good one, as well. I will be honest: new clause 42 is probably my favourite out of all of them. There is a certain cruelty in the fact that I am yet again to be disappointed.
I start briefly with clause 71, which we do support. I have to say that given the number of reporting requirements that I have sought to put on the Home Office, which, sadly, have been rebuffed on each occasion, I am very pleased and amused that the Minister himself is now putting reporting requirements into the Bill, in this case on local policing bodies.
Alex Norris
Exactly, on someone else. But those are important reporting requirements, actually. Having that evidence will be of interest to local communities. I think that transparency could, at times, be challenging for local policing bodies, but that would not be a bad thing.
There are, again, issues relating to antisocial behaviour reviews. We want them to be done properly. We do not want people to get through to the end of the process and feel that they have not been listened to—that would be a double insult, given what they would have already suffered. I do fear that the lessons have never really been learned on the failure of community trigger over the past decade. We do not want to see, particularly with regard to the statistics reviews, a desire to localise blame for failures that often happen at a national level. Nevertheless, that is an argument to have at a later point. We have no issues with the requirements at all.
I have sought to improve the Bill with new clause 42, and I hope the Minister will be minded to show his support for it in other ways, if not directly. If the new clause were to be agreed to, that would be a really important building block in restoring neighbourhood policing for communities across England and Wales, and it would be at the frontline of our battle against antisocial behaviour. As I have said, the diminution and denuding of community policing over 14 years has had a significant impact. That is why half the population now say they rarely ever see the police on the beat—a proportion that has doubled since 2010.
People feel powerless to deal with antisocial behaviour, even though it happens right on their doorstep. That is compounded by the reduction in drug intervention services, as we have discussed in previous debates. Youth service budgets have been cut by £1 billion. Community penalties have halved, and there is a backlog of millions of hours in community payback schemes. We are creating the challenges we face because we are not contesting public space, and we must do something about it. That is what clause 42 offers. It is not a silver bullet, but it would entail rebuilding the fundamentals of good policing: officers serving and protecting their community, which requires the restoration of neighbourhood policing. Communities should know their police officers and be able to approach them directly if they need to.
We know that putting in the hard yards and building relationships makes the difference, and new clause 42 would be the first step towards achieving this. It would introduce a requirement that the
“chief officer of each police force in England and Wales must appoint a designated officer for each neighbourhood…to act as the force’s lead on work relating to anti-social behaviour”.
In other words, there should be a named officer leading on antisocial behaviour in every community. No longer would members of the public feel that, when they report antisocial behaviour, nothing is done and it disappears into the ether. Perhaps they do not have any contact with the police, or perhaps they have to ring 101 and get promised a call-back that does not happen. Instead, an officer embedded in the community—a face and name they recognise—would act as the lead on antisocial behaviour.
That is what the new clause would do, and it does not take much to imagine how an officer could work in this way. They could visit schools, community groups and youth clubs, engage with young people, build trust, try to prevent youngsters from being drawn into antisocial behaviour, and build relationships with parents where there are early concerns. That is what policing used to be, and it is what policing could be: policing in the community and serving the community. I know that there is demand among police officers, who want to be doing this sort of policing. The new clause would be a real enhancement to the Bill, so I hope the Minister is minded to accept it.
Chris Philp
Let me respond to the shadow Minister’s comments on new clause 42. I sympathise with the intention behind it, which is to make sure that there is a named officer working on ASB issues, but we have an important principle: the operational independence of policing.
Neither the Government nor Parliament direct the police to operate or behave in a certain way; they are operationally independent. That separation of powers is a fundamental principle, and instructing the police on how to structure their operations probably crosses the line of operational independence. However, I am sure that police and crime commissioners and chief constables will have heard about the Government’s focus on antisocial behaviour via our ASB action plan. They will have heard our debates in Parliament, including this one, and will understand the significance that we attach to this particular issue.
On accountability and local connections, most forces have safer neighbourhood teams, who are typically attached to a council ward. We certainly have them in London, and they exist in many other places as well. Three or four months ago, we extracted from the police a commitment to always follow all reasonable lines of inquiry in relation to all crime, including where antisocial behaviour crosses the criminal threshold. That is a National Police Chiefs’ Council commitment and we expect all forces to deliver it, including for the criminal elements of ASB.
On local accountability, we also have police and crime commissioners. If the public want to make sure that the police are held to account for delivering the commitment to always follow up on criminal offences, including criminal ASB, they can contact the police and crime commissioner, who is elected. Their job is to hold the local police forces to account for doing exactly the kind of thing that the shadow Minister outlined.
Jess Phillips
The Minister has somewhat answered my question, but what happens if the police do not follow up on every line of inquiry? Let us be honest: we will all have cases in our constituencies where that has happened.
Chris Philp
That is a great question. We have reached this national commitment, and the National Police Chiefs’ Council has agreed to do this. But how will we know whether it happens? How can we ensure that the police deliver on that promise? First, we in the Home Office are following up via the National Policing Board. We have a meeting next week—I think it is on 30 or 31 January—and the first item on the agenda is investigations into crime. I will press the police chiefs particularly on the delivery of this commitment. Secondly, Chief Inspector of Constabulary Andy Cooke, former chief constable of Merseyside police, will conduct a thematic inspection of this issue in the spring, checking up on every police force in the country to ensure that they are actually doing this.
Thirdly, the commitment is being incorporated into the regular cycle of Peel inspections. Every couple of years, every police force is inspected. The commitment is going to be checked up on as part of that regular series of inspections. I also expect Members of Parliament and police and crime commissioners to hold the police to account. If we ever hear examples of the police not delivering this commitment, we should be asking the police about that.
The measure was inspired by the work done by Chief Constable Stephen Watson in Greater Manchester, which Sir Graham and I were discussing before the Committee started. He was appointed a couple of years ago and instituted this policy: always following up reasonable lines of inquiry for every criminal offence; no such thing as minor crime. That approach led to a 44% increase in arrests in Greater Manchester, and some previously closed down custody suites and magistrates courts had to be reopened because a load more people were being arrested. We are looking to apply that approach nationally. Of course, the police are never going to get it 100%, but it is the job of parliamentarians and the chief inspector to hold them to account and get as close to 100% as possible. We discussed facial recognition. CCTV evidence, for example, is a critical part of that for ASB and for all crime types.
Jess Phillips
The Minister’s story about Manchester was great and a delight to hear; I hope that is replicated elsewhere because of this scheme. Are the Government committing to opening magistrates courts that have been closed in order to deal with that capacity?
Chris Philp
Magistrates courts are, of course, a matter for the Ministry of Justice. I am sure my MOJ colleagues will do whatever is necessary to ensure appropriate arrangements are in place. I know that they labour night and day—“labour” meaning work—to make sure the right arrangements are in place. I fear I may be about to stretch Sir Graham’s patience in terms of scope.
I hope that the shadow Minister, the hon. Member for Nottingham North, will hear that I am in great sympathy with the spirit of the new clause. However, for reasons of police operational independence and because the police and crime commissioner has a role in terms of accountability, I do not think new clause 41 is appropriate. But I understand and appreciate its intent.
Criminal Justice Bill (Thirteenth sitting) Debate
Full Debate: Read Full DebateDepartment: Home Office
Jess Phillips
Main Page: Jess Phillips (Labour - Birmingham Yardley)Department Debates - View all Jess Phillips's debates with the Home Office
Criminal Justice Bill (Thirteenth sitting)
Jess Phillips ExcerptsThursday 25th January 2024
(2 years, 6 months ago)
Public Bill CommitteesRead Full debate Criminal Justice Bill 2023-24 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 25 January 2024 - (25 Jan 2024)
Jess Phillips (Birmingham, Yardley) (Lab)
The enormous list of amendments in my name—it is time for everybody to strap in—is not necessarily a criticism of police forces, but is real recognition that women in our country do not trust the police. That is dangerous, because the women I work with have no choice but to trust the police. It is not a privileged position that they can take; they have to trust them, but they do not.
Clause 73 relates to the College of Policing’s code of ethics, but there is nothing at all about police-perpetrated abuse in it. Neither the code of ethics nor the standards of professional behaviour makes clear that police-perpetrated domestic abuse is contrary to the standards required by a police officer. Clause 73 should be amended to make it explicit that ethical policing also entails zero tolerance for violence and other forms of abuse against women and girls by police officers and staff. Amendment 135 does just that.
Why that is important should be pretty obvious. Conduct that constitutes domestic abuse or sexual violence should be clearly specified as being a breach of the code of ethics and of standards of professional behaviour, whether committed on or off duty. It is necessary to spell that out in legislation, because police forces still frequently take the approach that domestic abuse committed while an officer is off duty discredits the officer personally, but does not constitute a breach of the code of ethics or the standards of professional behaviour, as it occurred in the officer’s private life.
The Independent Office for Police Conduct’s guidance says:
“The Standards of Professional Behaviour and the obligations that they impose will be assessed in context, which includes whether they are on or off-duty at the material time. Police officers have a right to a private life”—
they do not have the right to be a domestic abuser, though—
“which must be factored into any assessment. Assessments of seriousness and public interest should include consideration of whether an off-duty behaviour discredits the police service.”
David Carrick was off duty when he raped all those women.
Forces are seizing on this in some cases to say that domestic abuse is personally discrediting for the officer, but not the police service. Jackie, an experienced police officer, was the victim of domestic abuse by her police officer husband. She reported the abuse to her force, but no criminal charges were brought, on the basis that there was not a realistic prospect of conviction because it was her word against her ex-partner’s. Misconduct proceedings were not pursued on that basis; the conduct alleged by Jackie had taken place while both she and her ex-partner had been off duty. It was therefore deemed to be part of their private lives. As a result, Jackie felt unable to continue working for the force. Meanwhile, her ex-partner had been promoted, and holds a leadership role in the force’s violence against women and girls strategic command.
Jackie’s case and others like it send a clear message about the force’s true attitude towards domestic abuse. Other officers have said that seeing how officers such as Jackie have been treated when they have tried to report domestic abuse speaks volumes, and that they would not report domestic abuse themselves, having seen how Jackie and others were treated by the force. Regardless of what the force says about operational pledges or other initiatives, the way it responds to allegations of police-perpetrated domestic abuse has a much greater impact on the willingness of other victims to come forward.
The relevance of abusive behaviour towards women to an officer’s suitability to hold the office of police constable and the impact on public confidence when perpetrators of domestic abuse hold positions in the police are being overlooked. Therefore, there needs to be a clear and unequivocal statement that domestic abuse committed by a police officer, whether on-duty or off-duty, will always discredit the police service if that officer is permitted to continue serving on that force.
Furthermore, subsection 2A(a) in amendment 135 refers to,
“sexual relationships with members of the public whilst acting in their capacity as a police officer”.
Section 1 of the Covert Human Intelligence Sources (Criminal Conduct) Act 2021—some of us were on that Bill Committee as well—amended part II of the Regulation of Investigatory Powers Act 2000 so as to enable the authorisation of CHIS. That includes enabling under- cover police officers to participate in conduct that would otherwise be criminal.
A number of groups, including the Centre for Women’s Justice, the End Violence Against Women coalition, Justice, Women’s Aid and Police Spies Out of Lives, are very concerned about that in light of the significant history of undercover officers engaging in deceitful sexual relationships during the course of their under- cover deployment. A specific prohibition against such relationships should be included in the police code of ethics, making it clear that any such relationship is a breach of the code of ethics and of the duty under the standards of professional behaviour in schedule 2 to the Police (Conduct) Regulations 2020—to
“behave in a manner which does not discredit the police service or undermine public confidence in it, whether on or off duty.”
Amendment 136 aims to ensure that there is independent external oversight to the code of practice from bodies that represent the interests of the victims and survivors whom this code seeks to protect. The Bill currently sets out a range of organisations that need to be consulted regarding the code of practice relating to ethical policing. However, while this code is being implemented following serious failings by policing to adequately protect victims, there is no requirement to consult organisations that protect the rights of victims to ensure that the standards set out in the code are sufficiently robust.
In the previous debate, the Minister said how important partners were in ensuring that things worked well. Amendment 136 would ensure that the interests of victims were entrenched in the code of practice and the duty of candour. We have heard concerns about police marking their own homework, yet the current state of the Bill is like allowing them to set their own questions in the exam. The current provision requires police to act
“in an open and transparent way”.
That should start with openness to external scrutiny by individuals whose role it is to uphold and promote the rights of victims. By including named commissioners as statutory consultees, we can ensure that the standards set out in the code are fit for purpose.
I move on to new clause 48. Gaia Pope-Sutherland was 19 when she died. She was one of a significant number of young women and girls with cases against a man who had served time for child sex offences. Gaia had reported that she had been raped by him, but her case was dropped by the police and dismissed by the Crown Prosecution Service. Her family believed that that was because her case was presented in isolation from all the other independent allegations of violence and abuse. Detectives were said to have been aware of allegations made against this man, who was accused of grooming her as far back as 2014.
Gaia was already suffering from severe post-traumatic stress and living in fear of retaliation from the perpetrator, so the collapse of the case had a devastating impact on her mental health. That contributed to her disappearance and death from hypothermia shortly before the suspect was due to be released from a prison sentence for other child sex offences.
What happened to Gaia is heartbreaking. I have met many victims of sexual violence, and many of them have spoken about how it is not the violence that broke them but the failed state response—that when they turned to the institutions that were supposed to be able to protect them and deliver justice, they were met with incompetence or discrimination and a system that was uncaring and silencing.
Gaia’s heartbroken family have courageously taken up the campaign to change this. They have been pushing for the “Gaia principle”, which stipulates that any failure by a police officer to comply with existing policies and guidance will be considered a professional standards issue and escalated to misconduct in the event that the pattern persists. It is basically trying to make the police do their job. It urges that all police forces investigate sexual violence crimes in line with the national operating model developed from Operation Superior, and that officers be held accountable if they fail to do so.
New clause 48 is a step towards delivering that principle. It makes diligent consideration of all intelligence on a subject—previous convictions, reports or accusations—an unquestionable or overt part of what we expect of our police officers in their service. Repeat offending is a critical issue in the investigation of VAWG. The VAWG national strategic threat risk assessment notes:
“A relatively small number of highly prolific offenders are responsible for a disproportionate amount of crime.”
The Femicide Census tells us that in 59% of intimate partner or relative homicide cases, a history of abuse towards the victim is evident. Research from Respect shows that a quarter of high-harm domestic abuse perpetrators are serial offenders, some having as many as six victims. Between 41% and 59% of Operation Soteria offenders were linked to more than one offence, and that is just the tip of the iceberg. One study sample revealed that 120 undetected rapists, defined as those whose offences met the legal definition of rape or attempted rape but who had never been prosecuted, were responsible for 1,225 interpersonal violence offences, including rape and child sexual and physical abuse.
The picture is clear: we know who these men are and what they are doing, but because of endemic police failure to investigate properly and a lack of co-ordinated professional curiosity, those known perpetrators are acting with impunity. New clause 48 makes the investigation of potential perpetrators a central part of policing. It is unbelievable that I have to say this—the country would think that this is happening—but that must be a part of the standards of their professional behaviour.
The police must live up to that and be held accountable for it. If a serving officer fails to do his or her job properly, they must face consequences and disciplinary processes, and if necessary they must no longer hold that role. That seems obvious, and it is extraordinary that we are debating it, but rape has an appallingly low conviction rate: a perpetrator is held to account in just 1.5% of rape cases. The devastating lived experience of families such as Gaia’s makes it clear that we cannot continue.
The new clause, based on the “Gaia principle”, will ensure that survivors of VAWG are no longer denied justice and left in danger because police investigators fail to investigate a suspect properly. As I said, it is named in memory of 19-year-old Gaia Pope-Sutherland from Dorset, who lost her life following these failures.
Chris Philp
I thank the shadow Minister and the hon. Member for Birmingham, Yardley for explaining their very thoughtful amendments. We will obviously have a stand part debate a bit later, but in short, and for context, clause 73 places a duty on the College of Policing to issue a code of practice relating to ethical policing, which must include a duty of candour, delivering one of the points of learning set out by Bishop James Jones in response to the Hillsborough disaster, which Members of this House and this Committee—including you, of course, Dame Angela—have discussed extensively.
The Government and the House obviously take police integrity and accountability very seriously indeed, which is why the code of ethics and the duty of candour are so important. Amendment 63, in the name of the shadow Minister, asks for information to be set out that specifies what actions are to be considered ethical. Although the Bill is not yet in force, the College of Policing has acted pre-emptively—that is helpful for this Committee, as we have something to look at—and has already published and set out a statutory code of practice for ethical policing under section 39A of the Police Act 1996. It has met the statutory requirement that we are looking to legislate for in this clause already, even though the Bill is not yet in force. Once the Bill is in force, it will have to maintain that code and review it.
Jess Phillips
It would not pick up employment issues raised by one police officer about their police officer husband. The police currently operate on a criminal threshold in an employment environment, which is a dangerous precedent. We would not allow that anywhere else. We do not allow it in here. It would not have helped Jackie in her case. On looking at criminal records or other intelligence—we will come to the intelligence that they are not looking at in a moment—it needs to be explicitly stated that we do not want domestic abusers in our police force.
Chris Philp
We certainly do not want domestic abusers in our police force. To be clear, domestic abuse is rightly a criminal offence. If someone gets convicted of that, it will be on the police national computer. Even if there is not a conviction, because the victim does not want to proceed with a prosecution, the evidential threshold is not met or there is an acquittal or whatever, the police national database, as distinct from the police national computer, records intelligence and information more generally.
Even if there is no conviction, for whatever reason, information that is received gets recorded on the police national database. If there has been an allegation that has not been prosecuted and there is no conviction, that will still show up on the police national database and therefore be considered in the data washing exercise, even if there has not been a criminal conviction.
Jess Phillips
To what end? They will find that somebody made an allegation, but how many result in “no further action”? If they found that there were three allegations against a police officer by three different women, they went, “No further action.” To what end? We are washing it, but I want to put it on after it has been washed.
Chris Philp
It is in order to make decisions about whether the officer concerned meets the standards required for vetting. The hon. Lady made this point a second ago. The standard for employment should be much lower than the standard for criminal conviction. Obviously if there is a criminal conviction, the expectation is that the person will be dismissed. Where there are allegations that are concerning but have not been proved, we would expect that to adversely affect the officer’s vetting status.
We made a change last summer, I think, to say that an officer has to clear vetting not just once when they are first hired—this was a problem in the Carrick and Couzens cases—but throughout their career. If the data washing exercise brings out information that is not necessarily criminal but means that the officer does not meet the vetting standards, we expect action to be taken. I am speaking from memory here, but in something like 150 of those 461 cases, there is now a misconduct investigation, so not criminal. Nine of them are being investigated criminally. About 150 misconduct investigations have been triggered, which will pick up examples such as the one the hon. Lady just mentioned although they do not meet the criminal threshold.
To elaborate on that, the paragraph about discreditable conduct includes the requirement that police officers behave in a manner that
“does not discredit the police service or undermine public confidence”—
“undermine public confidence” is an important phrase—and that is
“whether on or off duty.”
Each case is assessed on its own facts, but I expect— I am sure the hon. Lady would expect this, too—credible allegations, in particular credible repeated allegations, of domestic abuse, even if not prosecuted or convicted, to undermine public confidence in the officer concerned. The hon. Lady would definitely take that view and I would as well. I have not looked at all 150 cases individually, but I expect that a number of those recently uncovered cases include examples such as the one I have set out.
Critically, the data-washing exercise, that check, will now happen on an ongoing and repeated basis, and it will give a lot of assurance. [Interruption.] I apologise— I said 150, but actually 88 cases have been triaged for disciplinary investigation. It was not 150; I was mis-recollecting. It is 88 of the 461. But I hope that gives more confidence to the public, including women, particularly as the vetting will happen on an ongoing basis—we have funded that. Maintaining vetting clearance throughout an officer’s career, which could be 30 years, rather than just having it at the beginning, will help to rebuild confidence.
Jess Phillips
If the vetting has to be ongoing, where is that written into primary legislation? I do not doubt the good faith of the Minister—we have all said as much in Committee—but how can people like me have a guarantee that it will happen forever? Secondly, the Minister made a valiant effort to point out to the shadow Minister, my hon. Friend the Member for Nottingham North, where exactly all the duty-of-candour things appeared in the ethical code of practice for policing. But I have just had a quick scan of that, and it does not mention domestic or sexual violence once.
Chris Philp
Maintaining vetting throughout an officer’s career rather than just at the beginning of it is set out in the vetting code of practice, which was published by the College of Policing, I think, in July last year. The ongoing checking against the police national database is an operational practice. We have put funding behind it, so there is money to pay for it, and the relevant National Police Chiefs’ Council lead has publicly committed to doing it. The hon. Member for Birmingham, Yardley is right that such vetting is not a statutory duty, but the Government have funded it and the police have said that they will do it, so Parliament will hold them to account to ensure that they deliver on that commitment and continue to do so.
The hon. Lady asked about the “Guidance for ethical and professional behaviour in policing”, which was published recently. Some relevant information, which the Committee will want to hear about, is in that document. Two more documents are also relevant, one of which was published earlier this week. This is confusing, because three documents fit under the umbrella of the codes of practice.
The statutory document, under section 39A of the Police Act 1996, was published on 6 December and I quoted from it previously. Two more documents were published in the past few days: “Guidance for ethical and professional behaviour in policing”—also issued by the college, and I can provide a copy—and “Ethical policing principles”. Those three documents should be taken together.
The first of the two new ones is relevant to amendment 135. It has some sections that answer the questions that have just been asked, including the one about inappropriate relationships. The “Guidance for ethical and professional behaviour in policing”, published only a few days ago, has a section on “Fairness and respect”, which includes things such as:
“protect vulnerable people and groups from behaviour that is abusive, harassing, bullying, intimidating, exploitative or victimising”
and
“avoid any behaviour that could cause unreasonable distress or harm, including any behaviour that might interfere with…colleagues’ ability to carry out their duties”.
Clearly, exploitation, which obviously includes domestic abuse, is covered, but so are other things such as victimisation, harassment and abusive behaviour.
Jess Phillips
Does the document say whether that is on or off duty? Does it include officers’ own personal relationships or does it just apply to members of the public?
Chris Philp
The document talks about treating everybody in those ways. It also goes on to talk about relationships, which obviously can happen inside and outside policing. It also talks about—I think this was the topic of amendment 135—ensuring that there are appropriate boundaries between police officers’ professional roles and personal relationships. It particularly talks about recognising
“the need to manage…relationships with the public because of the existence of a power imbalance”,
respecting “personal and professional boundaries” and maintaining
“the integrity and rights of those we come into contact with”.
Critically, it also states:
“do not use our professional position to pursue a sexual or improper emotional relationship with a member of the public”.
I think that speaks directly to the concerns raised in paragraph (a) in amendment 135, which expressly references the same thing. That is in the document that I just mentioned.
What the whole group of amendments tabled by the shadow Minister and the hon. Member for Birmingham, Yardley calls for is covered in these documents, which have been published by the College of Policing under section 39A of the Police Act 1996. If there are gaps in them, obviously they can be updated.
Someone—I think it was the hon. Member for Birmingham, Yardley—asked, “Why not set it all out in the Bill?”. The documents are quite long—29 pages, 10 pages and something like 30 pages: there is a total of 60 or 70 pages of guidance. It is rather difficult to put that much detail into the Bill. What the Bill is doing is compelling—not asking—the College of Policing to publish these documents. The detail is obviously in the documents, and I hope that the Committee can see, from the examples that I have given having rifled through the documents, that they address the topics that one would want to see addressed.
Jess Phillips
I thank the Minister for giving way again; it is good to have this debate. I must say, as an expert in this field, that what the document says is not good enough. That brings me to amendment 136—which specialist agencies who work with victims of domestic violence did the College work with to write this? It is not good enough, I am afraid to say. I can take that up with the College of Policing, but that is also not the mechanism.
Chris Philp
There is obviously a duty to consult various bodies in preparing the code of practice. I know that the College of Policing and its chief executive, Chief Constable Andy Marsh, engages extensively with a number of people. The hon. Lady lists in amendment 136 the Domestic Abuse Commissioner, the Commissioner for Victims and Witnesses, and the Independent Anti-Slavery Commissioner. I do not know whether the College of Policing expressly consulted those people in preparing the codes of practice, but I can undertake to ask its chief executive and find out.
I appreciate that the hon. Lady has probably not had a chance to read the documents, because two of them got published only earlier this week. Once she has had a chance to look at them, if, based on her experience and work in this area, which I know is extensive and long-standing, she thinks that some things have not been properly addressed, I am happy to commit to raising them directly with the College and ask that they be addressed in the next iteration of the documents. I am definitely happy to do that whenever the hon. Lady is ready; if she can set down what she thinks is missing, I will raise those issues.
I am told that the three organisations that I just read out, which appear in the hon. Lady’s amendment, actually were consulted routinely on the documents. However, as I said, if, once she has had the chance to read the documents, she finds in them things that are not properly constructed, I will definitely raise them with the chief executive of the College on her behalf. She can obviously do so directly, but I will certainly do so reflecting her advice as well.
I essentially agree with the spirit of all the amendments. However, because of the detail published relatively recently, on 6 December and in just the last few days, my view is that what is being asked for has been essentially incorporated into the documents. As I said to the hon. Member for Birmingham, Yardley, if she especially or any members of the Committee feel that things are missing, I will absolutely take them up with the chief executive, should a view be formed that changes would be useful and appropriate.
Alex Norris
Openness and candour. But that does not have a statutory underpinning. There is carrot but no stick—that is the point I am trying to make. The code covers chief officers. It will not really cover their staff—not so that we can have confidence that the job has been done with regard to the duty of candour. There is still a gap.
As I have said, I have doubts about whether the Bill is the right vehicle for the change that the Opposition seek on duty of candour, so I will not press that point to a Division yet. But the issue will come back at later stages and in other legislation as well. We certainly do not think that the job has been finished.
Jess Phillips
On amendment 135, the Minister offered to sit down and talk to me about what needs to be in the document. On reflection, I will not press the amendment, in the expectation that that will happen before the Bill goes to the other place. We shall see how we feel about the matter then.
Chris Philp
On a point of order, Dame Angela. Could I ask the hon. Member for Birmingham, Yardley, through you, to make contact with me with her thoughts when she has looked at the document? I would be grateful.
Jess Phillips
I beg to move amendment 134, in clause 73, page 65, line 5, at end insert—
“(3A) The Code must make explicit that any criminal behaviour perpetrated by persons under the chief officer’s direction and control disclosed as a result of proceedings in the family courts must be considered during the vetting process.”.
This amendment ensures criminal behaviour that is uncovered within family courts is disclosed within the vetting process of police officers.
The Chair
With this it will be convenient to discuss the following:
New clause 6—Automatic dismissal on conviction for a serious criminal offence—
“(1) Section 50 of the Police Act 1996 (Regulations for police forces) is amended in accordance with subsections (2) and (3).
(2) After subsection (3) insert “and subject to any regulations made under subsection (3ZA)”.
(3) After subsection (3G) insert—
“(3ZA) Regulations made under this section may provide that upon the conviction of a member of a police force for a certain type of criminal offence, that person shall be dealt with by way of automatic dismissal without the taking of any disciplinary proceedings against that person.”.”.
New clause 7—Automatic suspension of officers charged with specified allegations—
“(1) Regulations made by the Secretary of State pursuant to section 50 of the Police Act 1996 may make further provision as set out in this section.
(2) Where an officer is charged with an indictable-only or an either-way offence, the Regulation 11 of the Police (Conduct) Regulations 2020 and any other relevant legislation shall not initially apply.
(3) In a case falling within subsection (2), regulations may provide that the appropriate authority must automatically suspend the officer from the office of constable for an initial period of 30 days.
(4) Where an officer is suspended in circumstances falling under subsection (3), regulations may provide that—
(a) the officer remains a police officer for the purpose of the Police (Conduct) Regulations,
(b) the suspension must be with pay,
(c) at or prior to the expiry of the initial period of suspension, the appropriate authority must make a determination as to whether the suspension conditions in Regulation 11 of the Police (Conduct) Regulations 2020 are satisfied, and
(d) upon the making of a determination referred to in paragraph (c) that an officer should remain suspended, Regulation 11 of the Police (Conduct) Regulations shall apply thereafter to that officer.”.
New clause 8—Automatic dismissal of officers who fail vetting—
“(1) The Police Act 1996 is amended in accordance with subsection (2).
(2) In section 39A (Codes of practice for chief officers), after subsection (1) insert—
“(1A) Without prejudice to subsection (1) and subject to subsection (1B), a code of practice may provide for an officer to be dismissed without notice where—
(a) the officer fails vetting, and
(b) it is not reasonable to expect that the officer will be capable of being deployed to full duties within a reasonable timeframe.
(1B) Subsection (1A) does not apply where a chief officer concludes that—
(a) the officer, notwithstanding his vetting failure, is capable of being deployed to a substantial majority of duties appropriate for an officer of his rank; and
(b) it would be disproportionate to the operational effectiveness of the force for the officer to be dismissed without notice.””.
New clause 9—Duty of officer to hand over personal mobile phone—
“(1) Section 50 of the Police Act 1996 is amended in accordance with subsection (2).
(2) After subsection (4) insert—
“(4A) Regulations under this section may, in connection with the procedures that are established by or under regulations made by virtue of subsection (3), provide that an officer has a duty to hand over to the appropriate authority a personal telecommunications device capable of storing information in any electronic format which can readily be produced in a visible and legible form, belonging to that police officer where there is a request by the appropriate authority in circumstances where the appropriate authority has reasonable grounds to suspect the police officer of behaving in a way that could amount to gross misconduct and in respect of which information stored on the device may be relevant to the suspected misconduct.
(4B) Without prejudice to the generality of subsection (4A), regulations may provide for—
(a) the form of the request to be made to the police officer concerned and any related information that must be provided by the police officer in releasing the device including, but not limited to, any passcode required to access information stored on the device;
(b) the time period within which the device must be provided to the appropriate authority and any sanction which may be imposed on the police officer for failing to do so;
(c) the provision to the police officer concerned of reasons for the requested possession of a device;
(d) the arrangements to be put in place for the protection of confidential, privileged or sensitive information stored on the device which is not relevant to the matter under investigation;
(e) the period of time that the device may be retained by the appropriate authority and arrangements for the return of the device when it is no longer required for the purposes of the investigation;
(f) the deletion of information obtained from the device and retained by the appropriate authority other than information which is reasonably required to be retained in connection with the matter under investigation; and
(g) the making of ancillary and consequential amendments to other regulations as may be considered necessary.
(4C) In subsections (4A) and (4B) “appropriate authority” has the meaning given in article 2 (interpretation) of the Police (Conduct) Regulations 2020.””.
New clause 33—Police perpetrated domestic abuse as a recordable complaint—
“(1) Schedule 3 of the Police Reform Act 2002 is amended as follows.
(2) After paragraph 1(2)(b) insert—
“(c) it is alleged by any person, including any person serving with the police, that a person under his direction and control, whether in the course of their duties or otherwise, has engaged in domestic abuse within the meaning of section 1 of the Domestic Abuse Act 2021 or abuse of position for a sexual purpose,”
(3) After paragraph 2(6B)(c) insert—
“(ca) the complaint is one which alleges that a person serving with the police, whether in the course of their duties or otherwise, has engaged in domestic abuse or abuse of position for a sexual purpose; and “domestic abuse” has the meaning set out in section 1 of the Domestic Abuse Act 2021,”.”.
This new clause would ensure all allegations of Police Perpetrated Domestic abuse are treated either as a recordable police complaint or as a recordable conduct matter.
New clause 34—Domestic abuse complainants: police officers and police staff—
“(1) Section 29(4)(a) of the Police Reform Act 2002 is amended as follows.
(2) After “person whose conduct it was” insert “, save that this paragraph does not apply where the conduct alleged (assuming it to have occurred) falls within the definition of domestic abuse in section 1 of the Domestic Abuse Act 2021 or constitutes abuse of position for a sexual purpose,”.”.
This new clause would ensure that police officers and members of police staff have the same right to make a complaint of domestic abuse against a member of their force as do members of the public.
New clause 35—Vetting: duty of chief officers—
“(1) Chief officers must ensure that all persons under their direction and control have valid and current vetting clearance appropriate to their role.
(2) All persons under the direction and control of a chief officer must be re-vetted—
(a) within a period of five years from an individual coming under the direction and control of a chief officer; and
(b) within a period no longer than every five years thereafter.
(3) Vetting clearance must not be granted to persons who have received a caution or conviction for serious violent or sexual offences including, but not limited to offences involving—
(a) domestic abuse,
(b) coercive and controlling behaviour,
(c) stalking,
(d) harassment,
(e) sexual assault or abuse,
(f) rape, or
(g) female genital mutilation.
(4) A person who does not have valid and current vetting clearance appropriate to their role will be dismissed.”.
New clause 36—Allegation of violence against women and girls: withdrawal of warrant card—
“Where a police officer is the subject of an allegation that the officer has perpetrated violence against a woman or a girl, the officer’s warrant card must be withdrawn pending investigation.”.
This new clause creates a provision requiring the removal of warrant cards from police officers who are under investigation for crimes relating to violence against women and girls.
New clause 43—Domestic abuse: automatic referral to Independent Office for Police Conduct—
“(1) A chief officer of police must ensure that any allegation of domestic abuse made against a person under the chief officer’s direction and control must be referred to the Independent Office for Police Conduct for determination of the mode of investigation.
(2) If the Independent Office for Police Conduct determines that the investigation must be referred back to the chief officer’s force, then such an investigation must be conducted and concluded.
(3) The Independent Office for Police Conduct may also refer the complaint to the chief officer of police for a different police force and direct that the complaint be investigated independently by that force.”.
Jess Phillips
As I started to say earlier, I think the public would be surprised to hear that the provision in amendment 134 does not already exist. The amendment seeks to ensure that criminal behaviour that is uncovered in the family courts is disclosed in the vetting process for police officers.
When the Bureau of Investigative Journalism made freedom of information requests to police forces asking for the number of officers who had been made subject to non-molestation orders by the family courts, it was shocked to learn that forces do not collect that data. That means that evidence of rape, violence, danger or child abuse demonstrated in a UK court is not part of the vetting process for our police officers, who the Minister has asked us, quite rightly, to have faith in.
The granting of a non-molestation order requires the court to be satisfied that there is evidence of molestation, that the applicant or a child is in need of protection and that the order is required to control the behaviour of the person against whom it is sought. Those are significant findings when made in relation to a serving police officer. It is scandalous that there is not an established arrangement between the police and the family courts to ensure that not just non-molestation orders, but any judicial finding of domestic abuse, rape or child abuse against a serving police officer or someone who wishes to serve is automatically notified to the officer’s force, to inform vetting. The amendment would require such information to be considered during the vetting process.
My hon. Friend the Member for Nottingham North spoke about the duty of candour. We wish to see that in all public institutions, although that is obviously not within scope. The public would be horrified to hear that there will be teachers in their children’s schools, currently, who have been found to be child abusers in our family courts.
The famous case on this issue relates to this building. Because the family courts are so secretive, a court case was fought; two journalists had to take the institution to task in order to be able to report that a previous Member of this House was found in the family court to have raped his wife. I pay tribute to her for the bravery that she showed.
Currently, such a finding—a finding of rape against somebody who sat among us—would never otherwise be known. If that man now wants to try to get a job in a police force or advising police forces, he can knock himself out. I mean, his case was written about in the newspaper, but that is one in a million cases; that does not happen routinely, because of the secrecy. We should all be terrified that there is no safeguarding. A person can be found to be a child abuser in the family court, and not be allowed to see their children, but they could be teaching my kids and nobody would know, because it is secret. It does not go on a Disclosure and Barring Service check.
I happen to know of a series of cases of police officers found in the family courts, by UK judges, to be child abusers, rapists or domestic abusers, but nobody would ever know, and they carry on serving as police officers. I think the public would be appalled. Every one of the police officers I asked about this in our evidence sessions, including Andy Marsh, said that it would be helpful to know. They all said it would be helpful, essentially, to have the family courts keeping a repository of safeguarding information based on outcomes at court that can be fed into the DBS or the vetting system. There are other areas that we will discuss today where I could definitely feel myself ending up at loggerheads with some senior police officers, but not in this case.
New clause 34 would amend section 29 of the Police Reform Act 2002 to ensure that police officers and members of police staff have the same right as any member of the public to make a complaint of domestic abuse against a member of their force. Again, it is shocking to hear that this is not already the case. Section 29(4) of the 2002 Act prevents police officers and staff from making a police complaint against a member of their own force. This is a significant problem in police-perpetrated domestic abuse cases, because many police officers and staff are married to each other—just like in this place—or in relationships with other officers and police staff. Just to be clear, I am not married to anybody in this place; I think my husband has been to London twice in his entire life.
Of the victims of police-perpetrated domestic abuse who have come forward to give their accounts to the Centre for Women’s Justice, nearly 45% are themselves police officers or police staff. While police victims can still report criminal activity by their husband or partner, the fact that their complaints are not also investigated under the misconduct process is a huge problem.
Criminal investigations very often conclude with no further action—NFA—on the basis that it is one person’s word against another’s. Given the burden and standard of proof in criminal proceedings, either the police or the CPS—if it gets that far—decide that there is not a realistic prospect of securing a conviction. However, the standard of proof is different in disciplinary proceedings. Clearly, it is important, not only for the victim but for the protection of the public, that the matter is recorded and that there is a disciplinary investigation even if criminal proceedings are not pursued—we have all agreed on that this morning already.
The case study of “Celine” pulls together the key elements of a number of real-life cases. Celine is a police sergeant. Her now ex-husband is an inspector with the same force. Celine and her ex-husband were married for 12 years. During the marriage, Celine was subjected to controlling and coercive behaviour, including financial control, alienation from friends and family, belittling and abusive language, and intimidation, such as her husband driving erratically and locking Celine and her children in a bedroom. Since the marriage broke down, Celine’s ex-husband has been harassing her with phone calls and threatening emails.
Celine made a complaint to her force about her ex-husband’s behaviour. There was a cursory criminal investigation, but—as they always are—it was “NFA’d” because the investigating officer took the view that there was no corroborating evidence of Celine’s account. Celine submitted a victim’s right to review request and asked for clarification on what was happening in terms of a misconduct investigation. She was initially told that there would not be any misconduct investigation, because of the NFA decision in the criminal investigation and because she is a police officer and so cannot make a police complaint. We need to have it categorically written into any code of ethics that an NFA decision in a criminal case should not be used in an employment case. We also have the issue of Celine not being able to make a complaint in the first place.
Celine challenged that and pointed out that her allegations should be investigated as a conduct matter, even if she was precluded from making a police complaint. Very shortly afterwards, she was told that the professional standards department had considered the case and that no further action would be taken. Celine asked for an explanation, but was told that since she was not classed as a complainant in the misconduct investigation, due to her being a police officer, it would be a breach of her ex-husband’s rights for her to be told anything about it, and that the force would not correspond with her further on the matter. Celine tried reaching out to her Police Federation representative for support, but was told that because the Police Fed was assisting her ex-husband, it could not offer her any assistance.
Being a police officer, and section 29(4) of the Police Reform Act, prevented Celine from having the same rights as a member of the public. Had that not been the case, her report of abuse could have been treated as a formal police complaint. She would have had the right to require the police to record it, and therefore deal with it under the statutory scheme set out in schedule 3 to the PRA. She would also have had the right of review of the outcome, either by the local police and crime commissioner or the Independent Office for Police Conduct, depending on whether the complaint had been handled by the force or by the PCC at the investigation stage. All those rights are currently withheld from police officers and members of police staff when they raise concerns about the conduct of an officer in their own force.
New clause 33 would go further, by ensuring that all allegations of police-perpetrated domestic abuse are treated either as a recordable police complaint or as a recordable conduct matter. Although all police complaints and conduct matters are required to be logged, they are not all required to be recorded. Schedule 3 to the Police Reform Act 2002 and regulations made under it specify which complaints and conduct matters have to be recorded. Recordings make a real difference, because complaints and conduct matters that are recorded have to be dealt with in accordance with the statutory process set out in schedule 3—I feel like the Minister! If a police complaint or conduct matter is not recorded, it is likely to be dealt with informally by the police, outside the statutory complaint system. Some might call that being brushed under the carpet.
Importantly, a number of forces do not use the national Centurion database to log complaints and conduct matters that are not formally recorded and therefore are handled outside schedule 3. That means that such complaints and conduct matters are not captured in the Home Office or IOPC statistics on police misconduct, resulting in the undercounting of the extent of police-perpetrated domestic abuse. A cynical person might suggest that that gives the force an incentive to find that a complaint or conduct matter is not recordable under schedule 3, because that means that there are no formal requirements to investigate and it will not appear in the official figures.
A further critical issue when complaints and conduct matters are not recorded and are dealt with informally outside the schedule 3 process is that information about the complaint or conduct may not be available for vetting purposes, or if further allegations are made against the officer or member of police staff in future. That risk is especially high if information is stored on local force systems and the officer or member of police staff transfers to a different force. We have seen in some of the most high-profile cases that it was the moving between forces that was problematic.
Let me lay out the problem with another case study. “Sally” was in a relationship with a police officer for more than 15 years. During that time, she suffered physical, emotional and psychological abuse from him, including while she was pregnant with her child. Sally did not feel able to report the abuse to the police, but her midwife noticed bruising and Sally opened up to her about what had been going on. The midwife made a referral, which led to Sally being contacted by the police. Sally told them about the abuse, but did not feel able to make a formal complaint, because she was financially dependent on her partner and expecting his child. She was worried that if she pressed charges, her partner would lose his job. The police did not take the matter forward and the abuse continued.
Eventually, several years later, Sally found the courage to leave. She subsequently learned through friends of friends that her ex-partner had gone on to abuse his new partner, and that he was now working on the force’s sexual offences and domestic violence team. Sally decided that she needed to report the abuse formally, because she was worried about her ex-partner working in a frontline role with victims of domestic abuse. When she did so, she was shocked to learn that the force did not have any record of the previous referral from the midwife or GP, or the account that she had given them at the time. The Minister was talking about vetting and other intelligence, but some gaping gaps clearly remain in what goes on to the recording and what does not. If the force had been required to record the earlier report as a conduct matter, as the proposed new clause would require, it would have had to investigate it under schedule 3 of the Police Reform Act. It would have had to have been recorded and should have informed Sally’s ex-partner’s vetting status and deployment within the force.
New clause 43 would require all allegations of police-perpetrated domestic abuse to be investigated and to be referred to the IOPC for determination of the mode of investigation—whether the matter requires investigation by the IOPC itself, or whether it should be referred back to the perpetrator’s force or referred to an independent force for investigation.
The Chair
Before we proceed, it was not quite clear from what the hon. Lady said whether there is a sub judice consideration involved in any of the cases she referred to.
The Chair
Nevertheless, everyone should be very careful that any of the examples they use do not fall into the sub judice category. I accept the hon. Lady’s assurance.
Criminal Justice Bill (Fourteenth sitting) Debate
Full Debate: Read Full DebateDepartment: Home Office
Jess Phillips
Main Page: Jess Phillips (Labour - Birmingham Yardley)Department Debates - View all Jess Phillips's debates with the Home Office
Criminal Justice Bill (Fourteenth sitting)
Jess Phillips ExcerptsThursday 25th January 2024
(2 years, 6 months ago)
Public Bill CommitteesRead Full debate Criminal Justice Bill 2023-24 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 25 January 2024 - (25 Jan 2024)
Jess Phillips (Birmingham, Yardley) (Lab)
“Likely” is not good enough for me, I am afraid, as I said in my speech. I just do not see why we would not add domestic abuse to the list, given that the Government have themselves made domestic abuse a serious crime. The list might capture it, but in lots of cases does not.
Chris Philp
I think that the 2020 regulations refer to this, so if the change were to be made, it could and probably should be made via the regulations, rather than the Bill, so that it was treated the same way as the other items.
While I am not ready to accept the amendment today, I will take away the question of whether there is a case for amending the regulations to include domestic abuse on the list. There will be arguments on both sides, because there is a necessarily high threshold. I do not disagree with the hon. Lady, but just to give the other side of the argument, the IOPC has quite a heavy workload, there are quite long delays, and we need to make sure that we direct the IOPC’s finite resources towards the most serious matters. I know domestic abuse is serious; I am not disputing that. However, we have to make sure that we calibrate that the right way. I will take the matter away and come back to the Committee once I have received further advice. That is a slightly softer commitment than on the other two measures, but it is an undertaking to look at the suggestion seriously in the context of the regulations.
On vetting clearance, I have already made the point that the College of Policing code of practice was updated in July to set out that there should be continuous vetting, and we will put that in regulations, as I said. I also spoke in debate on the last group of measures about the funded policing plan to carry out continuous integrity monitoring, which is basically the data wash I mentioned earlier done on a continuous basis.
It is the case that the full re-vetting is done every number of years. However, the proposed, revised authorised professional practice on vetting, which was published on 10 January—quite recently; it is out for consultation—suggests there should be an annual change-of-circumstance and integrity check, to check in on individuals without having to do the full re-vetting, in addition to the continuous integrity work I mentioned. The APP is out for consultation; it closes in a couple of months’ time. The annual check-up is in the APP. I looked at it earlier, and I warn colleagues that it is about 400 pages long. It is quite a heavy read. I hope that the proposal in the APP and the continuous integrity screening, which I mentioned in the previous debate and which we funded, combined with the code of practice released last July and the regulations that we will lay before Parliament this spring and early summer, will ensure that the required standards are met not just as a one-off today, but on an ongoing basis.
Jess Phillips
Will the Minister comment specifically on the amendment on evidence that is gathered in the family court?
Chris Philp
I am extremely grateful to the hon. Lady for drawing my attention to amendment 134, which I had momentarily overlooked. It is a fair point to raise.
For the Committee’s benefit, evidence placed before the family court is currently not considered when vetting decisions are taken. The family court will consider things such as child custody cases, for example, and it may be that allegations are made in the family court of domestic abuse or even more serious matters such as rape. The family court may, on occasion, make a finding of fact, where it finds on the civil standard of the balance of probability—not the criminal standard, which is beyond reasonable doubt—that a particular thing has happened, which could be a criminal offence. It is not a criminal conviction. It is not beyond a reasonable doubt, but on the balance of probability.
Family court proceedings are closed, and they are not, generally speaking, published, so that information is not available to take into account during vetting. Of course, police doing vetting do not know which officer may or may not have been involved in child custody proceedings. The vast majority will not, of course, but a small number will. Because that information is generally not published, in order to get hold of the information, the police would have to either ask for their officers to self-disclose that they had been subject to proceedings—there is obviously the possibility that the officer would lie, particularly if there was an adverse fact—or make individual applications for each case to the family court to disclose first whether there had been proceedings and secondly, if there had been proceedings, whether the findings of fact could be disclosed. It may be that the family court would not disclose that information, because that is a decision for the family court judge.
Chris Philp
I think the shadow Minister was up first, and then I will give way to the hon. Lady.
Chris Philp
I would be interested to hear, including via an intervention in response to this, how we would craft that—what legislative measure we could pass that would essentially open up what are currently closed proceedings within the ambit of the family courts to the police vetting process. I will happily give way if the hon. Gentleman can suggest that or come back to me later on.
Jess Phillips
Really, it is unfair on the Minister for me to ask him to do this, because he is absolutely right: it is practically impossible for him to agree to it today, because our family courts system—and, in fact, we do not have a Justice Minister in front of us—[Interruption.] Oh, the hon. Member for Newbury is a Justice Minister; I apologise. Okay then, I am happy to take interventions when I wind up.
We do not record anything that happens in our family courts. Now, we do not need Fujitsu; I could knock up an Excel spreadsheet that a clerk could put the findings in the case into at the end of every day and that was searchable by safeguarding agencies. It is not beyond the wit of man, but it is absolutely beyond the wit of the policing Minister—not because of a lack of skill, but because he literally cannot commit to doing something that the Ministry of Justice should have done a long time ago and that should already exist. The failing, actually, is not on the right hon. Gentleman’s part in not being able to accept it; it is due to the fact that we have allowed a wild west to occur in our family courts. So it is not his fault.
Chris Philp
I am grateful to the hon. Lady for her personal exoneration on this occasion; I will take that while I can. However, it may be that an MOJ colleague will respond. Obviously, the hon. Lady is able to question MOJ Ministers in parliamentary questions, and it may be that it is possible to have a discussion here; I do not know. However, that is obviously, as the hon. Lady said, something that the justice system has to consider. As a Home Office policing and crime Minister, that is not in my ambit. Therefore, as far as I am concerned—as the hon. Lady has acknowledged—it is difficult to say anything further.
However, I will just repeat the point that it is obviously open to a party to family court proceedings—if they are making an allegation of criminality to the family court, I am sure we would all strongly encourage them to also report it to the police, because it should be—[Interruption.] I know that there may in some cases be reasons not to, but they should also report that to the police so that it can be criminally investigated. Were they to do so, that would then appear on the police national database, although I do understand that there are some individual circumstances in which a victim may not want to do that.
There are a lot of new clauses and amendments in this group. I apologise for speaking to them at such length, Sir Robert, but I hope that I have set out that the majority of these things are already being done via regulations. There are two or three areas—new clauses 34 and 43 particularly—where I have undertaken to come back with further thinking, but I hope that that gives the Committee sufficient assurance that the Government are taking this important area very seriously—and, more than just taking it seriously, taking action.
Jess Phillips
I really appreciate the approach that the Minister has taken on all of the areas. I do not doubt that we are cross-cutting on certain things that have been going on, which many of us in this House have been working on for at least the past two years, since this became such a public issue. I also appreciate the Minister saying that he will come back on various different things.
Some of the amendments that I have tabled are just minor and technical amendments to other bits of—[Interruption.] Yes, apologies; I do not mean to wade into the argument about, “What is a technical amendment?”, because I do not know—or care, to be perfectly honest. That is the truth. I really appreciate those opportunities to discuss this with the Minister.
On the issue of the family courts, I will speak to another amendment on that shortly, later on in this debate. The reason I feel compelled to do that—even though I have admitted that in this instance the Minister’s hands are tied—is that we are three years on since the Ministry of Justice’s harms review. If the Justice Minister here today would like to tell me that I am wrong, she can, but we are three years on from the Ministry of Justice identifying the harms in the family courts—serious harms of child abuse and serious cases of rape—and nothing has changed.
We are no further in using the perfectly good piece of work that was started by myself and the now Justice Secretary, the right hon. and learned Member for Cheltenham (Alex Chalk), who was not in that role at the time. Actually, it is really woeful, and so I find myself only able to tag this on to Bills where it is wholly inappropriate to ask the Minister concerned to include it, even though I absolutely want to see this very substantive thing done.
Jess Phillips
I beg to move amendment 137, in clause 74, page 66, line 1, leave out “a local policing body” and insert
“the Independent Office for Police Conduct”.
The power to seek a referral to the police appeals tribunal should sit with an independent organisation, such as the IOPC.
Jess Phillips
Everyone will be pleased to hear that I have only a few paragraphs to read.
Clause 74 has been proposed with a view to strengthening the oversight of police chiefs. Although this is an important goal that the Bill seeks to achieve, the clause in its current form is misguided. If clause 74 seeks to address inadequacies in internal processes, the Government must instead implement measures to improve the efficacy and independence of the system, rather than delegating these powers to police and crime commissioners.
Disciplinary procedures must be independent and not subject to political influence, which would be a huge risk if the power to refer a police chief to a police tribunal sits with PCCs. In order to maintain the integrity of the system, these powers must sit with an independent body. The Independent Office for Police Conduct has been established specifically to hold police behaviour to account, so we should give the powers to refer a police chief to a tribunal to an organisation that exists to uphold police integrity.
I do not wish to besmirch any particular PCC, but having spent nine years in this building trying to overcome, and make processes to overcome, political interference and political patronage in cases of misconduct, I am always anxious when politicians and friends mark the homework of their friends.
Alex Norris
To some degree, the Minister has made the case for the clause already, but we support that element. It relates, of course, to the dismissals review commissioned in the light of the Casey review.
I did not hear this from the Minister, but—I think this speaks to the point that my hon. Friend the Member for Birmingham, Yardley has just made—we should not throw the baby out with the bathwater when it comes to the input of individuals who are independent. I know that that was not the point that the Minister was making about legally qualified chairs. I understand the point he was making about some of the delays and how unintentionally cumbersome the system has become. Nevertheless, as my hon. Friend said, the principle of independence is important for public confidence in the system. It would doubtlessly be an odd quirk if we got stuck with a system that had been designed to stop chief constables protecting staff who perhaps should have been dismissed, but which actually had the opposite effect in some cases of officer misconduct at more junior ranks. Having spoken to chiefs, I know there are frustrations there.
Again, the most important thing is that the process is fair, transparent and as simple and speedy as possible, so of course a judicial review cannot be a part of that process. That is of course wrong, so changing to a different appeal mechanism is probably a good thing to do. That leaves me with only one question for the Minister. This clause does not make the regime that he has mentioned and that I have spoken about, but gives the powers to make such a regime. I wonder why regulations are preferred for that and whether he has a sense of the timing for that and for the consultation, because clearly there will be a lot of interest in that—I am talking particularly about proposed new subsection (1A) of the Police Act 1996. I would be interested to hear the Minister’s rationale.
Chris Philp
I explained in the last debate the rationale for clause 74, which, as the shadow Minister said, is to allow the chief constable to initiate an appeal where he or she disagrees with the finding of the misconduct panel on which the chief constable is in a minority—there are two independent members. To the point about independence, which the hon. Member for Birmingham, Yardley raised, given that there are still two independent members, and the chief chairs it but is in the minority, that gives quite a good assurance. Of course, the individual police officer has a right of appeal to the Police Appeals Tribunal, which is an essentially digital function, and in this clause we are also giving the chief constable a right to appeal if they do not like the decision.
Turning to the amendment and who should initiate the appeal where it is the chief constable themselves who is the subject of the misconduct proceedings, let me make a couple of points. First, the police and crime commissioner, or the deputy mayor where there is a mayoral model, ultimately exercises oversight of the chief constable. They can fire them for poor performance, for example, and they are responsible for hiring them as well, so it is consistent with that hiring and firing power that they make the decision on whether to appeal where a finding misconduct is made against the chief constable themselves.
It is worth repeating the point I made just now that the panel that makes a finding has two independent members, so that is pretty independent. We are not giving the police and crime commissioner the right to, as it were, ratify or reject the finding of the panel; we are merely giving a power to refer it to the Police Appeals Tribunal, an essentially judicial body that will then hear the appeal. It is simply a right of referral to the Police Appeals Tribunal, not a right to make a decision. For that reason, I think it is the right way to approach things. On that basis, I urge the Committee to not adopt amendment 137, but to incorporate clause 74 as part of the Bill.
Jess Phillips
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 74 ordered to stand part of the Bill.
Clause 75 ordered to stand part of the Bill.
Clause 76
Regulations
Amendment made: 146, in clause 76, page 68, line 15, after “purposes” insert “or areas”.—(Chris Philp.)
This amendment provides that regulations under the Bill (other than regulations under clause 78) may make different provision for different areas.
Clause 76, as amended, ordered to stand part of the Bill.
Clause 77
Extent
Amendments made: 41, in clause 77, page 68, line 36, leave out “5” and insert “1”.
This amendment provides that clauses 1 to 4 extend to (ie form part of the law of) Scotland and Northern Ireland, as well as England and Wales.
Amendment 42, in clause 77, page 69, line 2, at end insert—
“(ea) section (Terrorist offenders) (and Schedule (Notification orders));”.
This amendment provides that the new clause and Schedule moved by NC14 and NS1 extend to England and Wales, Scotland and Northern Ireland.
Amendment 43, in clause 77, page 69, line 10, at end insert—
“(3A) Sections 11 and 12 extend to England and Wales and Northern Ireland.”.
See the statement to amendment 23.
Amendment 44, in clause 77, page 69, line 11, after “by” insert “section 32(2) or”.—(Chris Philp.)
This amendment to the extent provision is consequential on Amendment 40.
The Parliamentary Under-Secretary of State for Justice (Laura Farris)
I beg to move amendment 147, in clause 77, page 69, line 11, after “by” insert
“section (Administering etc harmful substances (including by spiking))(2) or”.
This amendment provides that consequential amendments made by subsection (2) of the new clause moved by NC45 have the same extent as the provision amended.
Laura Farris
I pay tribute to my right hon. Friend the Member for Chelmsford, who has been an important voice on the issue. When I made a statement to the House just before Christmas, I thanked everybody: my hon. Friend the Member for Gloucester, the right hon. Member for Kingston upon Hull North and the hon. Member for Bradford South. Theirs have been important voices, and they have been helpful to us as we have worked our way through this issue.
I did not set out our thinking in my initial remarks, so it might be helpful for me to do so. First, it was said that spiking was covered by other offences, but when we look at the language of the Offences against the Person Act, it is accurate to say that parliamentarians at the time had something different in mind. We can tell that just by reading the legislation.
Secondly, all parliamentarians are familiar with being told that something is already covered by another law, but it is worth asking, “Would this particular offence be better captured in a defined way?” We have done the same with offences such as stalking in the life of this Parliament. For lots of offences, it is possible to think, “Can we crystallise the offence in a more accurate way?” That was material to our thinking, and that is why we have made these changes. I hope that that is helpful to the Committee.
I reassure my right hon. Friend the Member for Chelmsford that all forms of spiking are included, whether by needle, vape, drink or a food substance. New clause 45 is deliberately widely constructed so as to capture the whole range. She made a point about urine testing. We have been told by police that the biggest barrier to conviction is that even if the victim reports the incident the following morning and immediately gives a sample for a toxicology test, they can be left with the disappointing news that the substance has left their body, even though the police often accept that everything that they and perhaps their friends are describing is consistent with a spiking incident. That is why investment in rapid drinks testing kits, which are at a nascent stage, has been a big part of the non-legislative measures. If we can get those up and running, we can roll them out across night-time venues to facilitate on-site testing without having to go through the standard toxicology route. We think that would be really helpful in getting convictions.
We have been working with the Security Industry Authority on the training of nightclub doormen and bouncers. From April this year, there will be a condition for any new nightclub bouncer entering the industry to have specific training on spiking. From September, we will begin a refresher element, including a spiking course, for those already employed in the sector. It is anticipated that, within three years, all nightclub bouncers will have had had specific night-time training, and we are doing something similar with bar staff.
There is also a national reporting tool, which is currently operated by 20 police forces in England and Wales. It is being rolled out, but about half of the forces are using it. It allows people to report spiking anonymously. That does not have to be the victim; anyone who has seen something that they think is consistent with a spiking incident can make a report. That will help forces to develop a clearer picture of where spiking is happening and whether there are hotspots or problem areas, which will allow them to intensify the police response. Finally, we are doing some police intensification work.
I have probably gone on too long. Suffice it to say that dealing with spiking properly requires more than a change in the law, but we do think a change in the law is necessary and desirable, and we therefore hope that Members will support new clause 45.
Amendment 147 agreed to.
Amendment made: 50, in clause 77, page 69, line 12, at end insert—
“(5) Nothing in subsections (1) to (4) limits the extent within the United Kingdom of the armed forces provisions.
(6) Section 384(1) and (2) of the Armed Forces Act 2006 (extent outside the United Kingdom) applies to the armed forces provisions as it applies to the provisions of that Act.
(7) In subsections (5) and (6) the “armed forces provisions” means—
(a) a provision made, or inserted, by or under this Act so far as it is applied (by whatever words) by or under the Armed Forces Act 2006;
(b) an amendment, modification or repeal made by or under this Act of—
(i) a provision of or made under the Armed Forces Act 2006,
(ii) a provision that amends, modifies or repeals a provision of, or made under, that Act, or
(iii) any other provision, so far as the provision is applied (by whatever words) by or under that Act.”.—(Chris Philp.)
This amendment makes provision about the extent of provisions of or made under the Bill which relate to the Armed Forces Act 2006.
Clause 77, as amended, ordered to stand part of the Bill.
Clause 78
Commencement
Amendments made: 45, in clause 78, page 69, line 18, after “sections” insert
“(Testing of persons outside of police detention for presence of controlled drugs),”.
This amendment makes provision to bring NC13 into force on Royal Assent for the purpose of making regulations and issuing codes of practice.
Amendment 131, in clause 78, page 69, line 18, leave out “, 21 and 34” and insert “and 21”.
This amendment and amendment 132 provide for the clauses about serious crime prevention orders to be brought into force by regulations.
Amendment 46, in clause 78, page 69, line 18, after “regulations” insert
“or issuing codes of practice”.—(Chris Philp.)
See the statement for amendment 45.
Jess Phillips
I beg to move amendment 1, in clause 78, page 69, line 21, at end insert—
“( ) section ([Removal of women from the criminal law related to abortion]).”
This is an amendment conditional on the introduction of NC1. It would bring the new law into force on the day the Act is passed.
The Chair
With this it will be convenient to discuss the following:
New clause 1—Removal of women from the criminal law related to abortion—
“For the purposes of the law related to abortion, including sections 58 and 59 of the Offences Against the Person Act 1861 and the Infant Life (Preservation) Act 1929, no offence is committed by a woman acting in relation to her own pregnancy.”
This new clause would disapply existing criminal law related to the accessing or provision of abortion care from women acting in relation to their own pregnancy at any gestation, ensuring no woman would be liable for a prison sentence as a result of seeking to end her own pregnancy. It would not change any law regarding the provision of abortion services within a healthcare setting, including but not limited to the time limit, the grounds for abortion, or the requirement for two doctors’ approval.
New clause 2—Abortion: Decriminalisation—
“(1) The Secretary of State must by regulations make whatever changes appear to the Secretary of State to be necessary or appropriate for the decriminalisation of abortion, in line with the recommendation in Paragraph 31 of the CEDAW General Recommendation No. 24: Article 12 of the Convention that “When possible, legislation criminalizing abortion should be amended, in order to withdraw punitive measures imposed on women who undergo abortion”.
(2) Regulations under subsection (1) must—
(a) provide for the repeal of sections 58, 59 and 60 of the Offences Against the Person Act 1861,
(b) provide that no offence under these regulations or any other legislation is committed by a person complying with the requirements of subsection 1 of the Abortion Act 1967,
(c) provide that no offence under these regulations or any other legislation is committed by a person acting in relation to their own pregnancy where they have been coerced into taking that action,
(d) provide that no person acting in relation to their own pregnancy may be sentenced to a custodial sentence, and
(e) provide for alternative offences in relation to acts of abortion where the woman has not, or is suspected to have not, consented to the abortion.
(3) The Secretary of State may by regulations make any provision that appears to the Secretary of State to be appropriate in view of subsection (1), or (2).
(4) If regulations under subsection (1) are not approved by both Houses of Parliament within three months of this Act receiving Royal Assent, then sections 58, 59 and 60 of the Offences Against the Person Act 1861 are repealed.
(5) A statutory instrument made under this section may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.”
Jess Phillips
I want to speak specifically to new clause 1, which was tabled by my right hon. Friend the Member for Kingston upon Hull North and concerns a matter close to my own heart: the removal of women from the criminal law relating to abortion. The Minister just made a compelling argument for ending the use of language from the Offences against the Person Act. Abortion remains a criminal act in England and Wales because of a piece of legislation from before any of us in this building were even born.
If a woman undergoes an abortion at any gestation without the permission of two doctors, whether she takes abortion medication bought online or a uses sharp object to end her pregnancy in desperation, she commits a crime that carries a maximum life sentence. Although the Abortion Act 1967 legalised abortion in certain fixed circumstances, the Offences against the Person Act 1861 and Infant Life (Preservation) Act 1929 maintain the criminal framework. In the 50 years following the passing of the Abortion Act, only three women in the UK have been convicted of an illegal abortion, but in the last 18 months, six women have appeared in court charged with allegedly ending their own pregnancy outside the law. Meanwhile, abortion providers have reported receiving escalating numbers of requests for women’s medical records from the police in relation to suspected abortion offences. The catalyst for this uptick in police investigations is unclear, but we need only look at what is happening in countries such as the USA, where citizens have lost their constitutional right to an abortion in recent years, and Poland, where a near-total ban on the procedure has taken effect.
Laura Farris
Okay, but it is one, to give the Committee a sense of the scale of this issue in the criminal courts.
I turn first to amendment 1 and new clause 1, tabled by the right hon. Member for Kingston upon Hull North. The purpose of new clause 1 is to disapply existing criminal law relating to abortion from a woman acting in relation to her own pregnancy at any stage of gestation. Under section 6 of the Abortion Act 1967, “the law relating to abortion” means
“sections 58 and 59 of the Offences against the Person Act 1861, and any rule of law relating to the procurement of abortion”.
Section 5(1) of the 1967 Act provides:
“No offence under the Infant Life (Preservation) Act 1929 shall be committed by a registered medical practitioner who terminates a pregnancy in accordance with the provisions of this Act.”
New clause 1 refers to “the law related to abortion”. Unlike the Abortion Act, it is not limited to specific provisions, and it could therefore be interpreted as applying more widely. It could, for example, include other offences against the person that may apply in this context, such as maliciously administering a poison so as to endanger life or inflict grievous bodily harm. In that regard, it differs from the law as it applies in Northern Ireland.
The hon. Member for Walthamstow takes a different approach. Her new clause 2 would require the Secretary of State to decriminalise abortion through regulations. Among other things, the regulations would repeal sections 58 to 60 of the Offences against the Person Act and make provision for alternative offences in relation to non-consensual abortion.
I reiterate that, should Parliament wish to change the law, the Government will not stand in the way, but hon. Members may consider that there would be alternative ways to amend primary legislation. Leaving aside the way in which decriminalisation might be achieved, there is the question whether the repeal of section 60 of the Offences against the Person Act is appropriate. Section 60 makes it an offence for a person to conceal the birth of a child by disposing of the child’s body after its birth. There is a high-profile case in the papers today concerning exactly that issue. It is not generally considered to be an abortion offence and it is not limited to the abortion context. Repealing the offence could have unintended consequences.
Jess Phillips
On the point made by the right hon. Member for Chelmsford, I have to say that I have noted from prior conversations people’s level of fear that they might have to vote on this issue today. If I were on the other side of this debate, I would not stop and think for a second that the will of the House needed to be tested, or that there was not a sneaky way to change the legislation—but I am not. We have tested the will of this House a number of times in the nine years that I have been here, and on every single occasion Parliament has acted in a pro-choice manner and has had a pro-choice majority. I have no doubt that I would hold the majority should I press new clause 1 to a Division in this Committee.
I agree with the right hon. Member for Chelmsford that it is the will of the House that these issues need to be tested. As I have said, I have no doubt that we will win in that context. What I would say is that it is always women’s bodies that we say this about. There is a load of people who will never have the experiences that I have had personally, or that some of the other women in this room have had, but get to have an opinion about the way that I live my life and make my choices about my own body, and we are taught to sort of genuflect and respect that. It should be a women’s health issue. If this was the women’s health Bill, we would be more than happy to amend all sorts of things in this room, but we allow this issue to retain some sort of grandiosity, as if it is any more than having a prostate exam, which even the King is doing and talking about. It should not be a thing any more. We are doing line-by-line scrutiny; we should be amending small bits.
On the Minister’s point about the things that the Government have put in place, let me say on behalf of my right hon. Friend the Member for Kingston upon Hull North that she is welcome, because every single one of them came from an amendment that my right hon. Friend tabled. This is not her first rodeo; it is a long passion.
The thing I heard today that gave me solace was from my hon. Friend the Member for Stockton North, who said from the Opposition Front Bench that the Labour party will move to ensure that, under any Labour Government, Parliament has time to actually consider this issue, so that people do not have to tack things on to Bills that they might not quite fit in.
The Minister mentioned one person having been criminalised. I imagine that, if she goes away and gets the data on the number of incidents of domestic abuse where a miscarriage has been forced and the man has been charged with the same offence that she identified under the Infant Life (Preservation) Act, she will find that it is zero, yet that will have happened hundreds of times in the last few years.
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment made: 148, in clause 78, page 69, line 24, at end insert—
“(aa) section (Maximum term of imprisonment for certain offences on summary conviction);”—(Laura Farris.)
This amendment provides that the new clause moved by NC47 comes into force two months after Royal Assent.
Amendment made: 132, in clause 78, page 69, leave out line 28.—(Chris Philp.)
See the explanatory statement to amendment 131.
Clause 78, as amended, ordered to stand part of the Bill.
Clause 79 ordered to stand part of the Bill.
New Clause 10
Power to seize bladed articles etc: armed forces
“In the Armed Forces Act 2006, after section 93ZC (inserted by section (Stolen goods on premises (entry, search and seizure without warrant): armed forces) insert—
“93ZD Power to seize bladed articles etc
(1) This section applies where—
(a) a service policeman is lawfully on any premises which are searchable by virtue of this Part, or
(b) a person subject to service law who is not a service policeman is lawfully on any premises in the exercise of a power of search conferred by virtue of this Part.
(2) If the service policeman or person subject to service law—
(a) finds, on the premises, an article which has a blade or is sharply pointed (a “relevant article”), and
(b) has reasonable grounds for suspecting that the relevant article would be likely to be used in connection with unlawful violence (if it were not seized),they may seize the relevant article.
(3) The following provisions apply where a relevant article is seized under this section.
(4) The service policeman or person subject to service law who seized the relevant article—
(a) must give a record of what was seized to a person who is on the premises, or
(b) if there is no person on the premises, must leave a record of what was seized in a prominent place on the premises.
(5) The record must—
(a) describe the relevant article,
(b) state that it has been seized under this section,
(c) specify the date of seizure,
(d) give the reason why the relevant article was seized, and
(e) specify the name, rank or rate, and the unit, of the service policeman or person subject to service law who seized the relevant article.
(6) Following seizure of the relevant article, the service policeman or person subject to service law may—
(a) retain it, or
(b) destroy it or otherwise dispose of it. This is subject to subsections (7) and (12).
(7) A person (“P”) claiming to be the owner of the relevant article may apply to the commanding officer of the relevant person for a determination that the relevant article should be delivered to P.
(8) The “relevant person” is the person by virtue of whose occupation of or other connection with the premises, the premises are within subsection (1).
(9) The commanding officer may make a determination under subsection (7) if it appears to them that—
(a) P is the owner of the relevant article, and
(b) it would be just to make the determination.
(10) If the commanding officer does not make a determination under subsection (7), P may appeal to a judge advocate.
(11) The Secretary of State may by regulations make provision—
(a) with respect to the practice and procedure which is to apply in connection with applications for a determination under subsection (7) and appeals under subsection (10);
(b) conferring functions on judge advocates in relation to appeals under subsection (10).
(12) The relevant article may not be destroyed or disposed of—
(a) in the period of 6 months beginning with the day on which it is seized, or
(b) if an application under subsection (7) is made in that period, until the application (including any appeal) has been finally determined or otherwise disposed of (and then, only if no determination is made that the relevant article should be delivered to P).
(13) In this section “unlawful violence” includes—
(a) unlawful damage to property, and
(b) a threat of unlawful violence (including of unlawful damage to property).””—(Chris Philp.)
This new clause amends the Armed Forces Act 2006 to make provision equivalent to that made by clause 18 of the Bill.
Brought up, read the First and Second time, and added to the Bill.
New Clause 11
Stolen goods on premises (entry, search and seizure without warrant): armed forces
“In the Armed Forces Act 2006, after section 93 insert—
“93ZA Search for particular stolen goods
(1) A service policeman of at least the rank of naval lieutenant, military or marine captain or flight lieutenant may authorise a service policeman to—
(a) enter specified premises which are relevant residential premises, and
(b) search the specified premises for specified items.
(2) An officer may give an authorisation under subsection (1) only if satisfied that there are reasonable grounds to believe that—
(a) the specified items are stolen goods,
(b) the specified items are on the specified premises, and
(c) it is likely that the purpose of the search would be frustrated or seriously prejudiced if no search could be carried out before the time mentioned in subsection (3).
(3) That time is the earliest time by which it would be practicable—
(a) for a service policeman to obtain and execute a warrant under section 83 authorising the entry and search of the premises, or
(b) in a case where a member of a UK police force could obtain a warrant under section 8 of PACE or any other enactment authorising the entry and search of the premises, for a member of such a force to obtain and execute such a warrant.
(4) An officer may give an authorisation under subsection (1) orally or in writing.
(5) As soon as reasonably practicable after giving the authorisation the officer must record in writing—
(a) if the authorisation is given orally, the authorisation, and
(b) in any case, the officer’s reasons for being satisfied as mentioned in subsection (2).
(6) The powers conferred by an authorisation under subsection (1) may be exercised only—
(a) by a service policeman in uniform,
(b) before the end of the 24 hour period beginning with the time the authorisation is given, and
(c) at a reasonable hour (unless it appears to the service policeman that exercising them at a reasonable hour may frustrate or seriously prejudice the purpose of exercising them).
(7) The power of search conferred by an authorisation under subsection (1) is exercisable only to the extent that is reasonably required for the purpose of searching the specified premises for the specified items.
(8) Where the occupier of the specified premises is present at the time the service policeman seeks to enter and search them, the service policeman must—
(a) identify themselves to the occupier, and
(b) state the purpose for which they are entering and searching the premises.
93ZB Seizure on search under section 93ZA
(1) This section applies where a service policeman is lawfully on relevant residential premises in exercise of the powers conferred by an authorisation under section 93ZA(1).
(2) The service policeman may seize anything which is on the specified premises (whether or not it is a specified item) if the service policeman has reasonable grounds to believe—
(a) that it is stolen goods, and
(b) that it is necessary to seize it in order to prevent it being concealed, lost, damaged altered or destroyed.
(3) The service policeman may seize anything which is on the specified premises (whether or not it is a specified item) if the service policeman has reasonable grounds to believe—
(a) that it is evidence in relation to—
(i) an offence under section 42 which the service policeman is investigating, or
(ii) any other offence under section 42,
as respects which the corresponding offence under the law of England and Wales is theft, and
(b) that it is necessary to seize it in order to prevent the evidence being concealed, lost, damaged, altered or destroyed.
(4) The powers of seizure in subsections (2) and (3) include power to require information which is stored in an electronic form and is accessible from the premises to be produced in a form—
(a) in which it can be taken away and which it is visible and legible, or
(b) from which it can readily be produced in a visible and legible form.
(5) As soon as reasonably practicable after exercising a power of seizure conferred by this section, the service policeman must record in writing—
(a) the grounds on which the power was exercised, and
(b) the items seized.
93ZC Sections 93ZA and 93ZB: supplementary
(1) The powers conferred by sections 93ZA and 93ZB do not include powers to search for or seize—
(a) items subject to legal privilege,
(b) excluded material, or
(c) special procedure material.
(2) In sections 93ZA and 93ZB “specified” means specified in an authorisation under section 93ZA(1).
(3) Sections 93ZA and 93ZB are to be construed in accordance with section 24 of the Theft Act 1968, reading references in that section to blackmail and fraud as including an offence under section 42 as respects which the corresponding offence under the law of England and Wales is blackmail or fraud.
(4) In sections 93ZA and 93ZB the following expressions have the meanings given by section 84—
“excluded material”
“items subject to legal privilege”
“relevant residential premises”
“special procedure material” .””—(Chris Philp.)
This new clause amends the Armed Forces Act 2006 to make provision equivalent to the provision inserted into the Theft Act 1968 by clause 19 of the Bill.
Brought up, read the First and Second time, and added to the Bill.
New Clause 12
Powers to compel attendance at sentencing hearing: armed forces
“(1) The Armed Forces Act 2006 is amended as follows.
(2) After section 259 insert—
“Attendance at sentencing hearings
259A Power to order attendance
(1) This section applies where—
(a) an offender has been convicted of a service offence in respect of which a life sentence may, or must, be passed,
(b) the offender is kept in service custody awaiting sentencing by the Court Martial, and
(c) the offender has refused, or there are reasonable grounds to suspect the offender will refuse, to attend court for the sentencing hearing.
(2) The Court Martial may order the offender to attend court for the sentencing hearing.
(3) An order under subsection (2) may be made by the Court Martial of its own motion or on the application of the Director of Service Prosecutions.
(4) Before making an order under subsection (2) in relation to an offender aged under 18, the Court Martial must have regard to the welfare of the offender.
(5) In this section—
“life sentence” means any of the following sentences imposed by virtue of this Act—
(a) a sentence of imprisonment for life,
(b) a sentence of detention for life during His Majesty’s pleasure, or
(c) a sentence of custody for life;
“sentencing hearing” means a hearing following conviction that is held for the purposes of sentencing an offender.
(6) Nothing in this section limits any other power of the Court Martial to order an offender to attend court for a sentencing hearing.
259B Power to order production of offender
(1) This section applies where—
(a) an offender aged 18 or over is kept in service custody awaiting sentencing by the Court Martial or the Service Civilian Court in respect of a service offence, and
(b) the offender has refused, or there are reasonable grounds to suspect the offender will refuse, to attend court for the sentencing hearing.
(2) The court may order that the offender is produced before the court for the sentencing hearing.
(3) An order under subsection (2) may be made by the court of its own motion or on the application of the Director of Service Prosecutions.
(4) A person subject to service law who is authorised for the purposes of this section by the Provost Marshal of the Royal Military Police may use reasonable force, if necessary and proportionate, to give effect to an order under subsection (2).
(5) In this section “sentencing hearing” has the meaning given by section 259A.
(6) A person is to be treated as having complied with an order under subsection (2) if they have done all that they reasonably can to secure that the offender is produced before the court for sentencing.
(7) Nothing in this section affects—
(a) any other power of the court to order that an offender is produced before the court for a sentencing hearing;
(b) any other power to use force.”
(3) In section 309 (offences of misbehaviour in court etc)—
(a) after subsection (1) insert—
“(1A) The Court Martial also has jurisdiction under this section to deal with an offender who fails without reasonable excuse to comply with an order under section 259A(2) (order to attend sentencing hearing).”
(b) in subsection (2)(a) after “days” insert “or, in a case within subsection (1A), 2 years”.”—(Chris Philp.)
This new clause amends the Armed Forces Act 2006 to make provision equivalent to the provision inserted into the Sentencing Code by clause 22 of the Bill.
Brought up, read the First and Second time, and added to the Bill.
New Clause 13
Testing of persons outside of police detention for presence of controlled drugs
“(1) The Police and Criminal Evidence Act 1984 is amended as set out in subsections (2) to (5).
(2) In section 30 (arrest elsewhere than at police station), after subsection (11) insert—
“(11A) Nothing in subsection (1A) or in section 30A prevents a constable delaying taking a person to a police station, or releasing the person under section 30A, for such time as is reasonable for the purpose of taking a sample under section 32A.
(11B) Where there is any such delay the reasons for the delay must be recorded when the person first arrives at the police station or (as the case may be) is released under section 30A.”
(3) After section 32 (search upon arrest) insert—
“32A Testing for presence of controlled drugs upon arrest at a place other than a police station
(1) An approved constable may take a single non-intimate sample from a person for the purpose of ascertaining whether any specified controlled drug is in the person’s body, if the following conditions are met—
(a) the arrest condition,
(b) the age condition, and
(c) the request condition.
(2) The arrest condition is that section 30(1A) applies in respect of the person and either—
(a) the offence for which the person was arrested is a trigger offence, or
(b) a constable of at least the rank of inspector—
(i) has reasonable grounds for suspecting that the misuse by the person of a specified controlled drug caused or contributed to the offence for which the person was arrested, and
(ii) has authorised the sample to be taken.
(3) The age condition is that the person is aged 18 or over.
(4) The request condition is that an approved constable has requested the person to give the sample.
(5) Before requesting the person to give a sample, an approved constable must—
(a) warn the person that if, when so requested, the person fails without good cause to do so the person may be liable to prosecution, and
(b) in a case within subsection (2)(b), inform the person of the giving of the authorisation and of the grounds in question.
(6) A sample may only be taken under this section—
(a) at or near the place where an approved constable requested the person to give the sample, and
(b) before the person has been taken to a police station or released under section 30(7) or 30A.
(7) If a sample is taken from a person under this section, an approved constable must give the person a notice in writing which sets out—
(a) the offence in respect of which the arrest condition is met;
(b) in a case within subsection (2)(b), details of the authorisation and the grounds in question;
(c) the date and time when the sample was taken;
(d) the location where the sample was taken;
(e) whether an analysis of the sample reveals that a specified controlled drug may be present in the person’s body.
(8) A notice under subsection (7) must be given as soon as reasonably practicable and in any event before the earlier of the person being released or charged with the offence in respect of which the arrest condition is met.
(9) A person who fails without good cause to give any sample which may be taken from the person under this section commits an offence and is liable on summary conviction to imprisonment for a term not exceeding 3 months or a fine not exceeding level 4 on the standard scale (or both).
32B Section 32A: supplementary
(1) A constable of at least the rank of inspector may give an authorisation under section 32A(2)(b) orally or in writing but, if it is given orally, the constable must confirm it in writing as soon as is practicable.
(2) If a person from whom a sample is taken under section 32A is taken to a police station, the constable giving the notice under section 32A(7) must secure that a record is made, as part of the person’s custody record, of the matters set out in the notice.
(3) If a person from whom a sample is taken under section 32A is released under section 30(7) or 30A, the constable giving the notice under section 32A(7) must, as soon as is practicable after the notice is given, make a record in writing of the matters set out in the notice.
(4) Section 32A does not prejudice the generality of section 63.
(5) In section 32A—
“approved constable” means a constable who has been approved for the purposes of section 32A by the chief officer of police of the police force to which the constable belongs (or, where the constable belongs to the British Transport Police Force, by the chief constable of the British Transport Police Force);
“non-intimate sample” has the same meaning as in Part 5 (see section 65(1));
“specified controlled drug” means a controlled drug (within the meaning of the Misuse of Drugs Act 1971) specified in regulations under section 32C;
“trigger offence” means an offence specified in regulations under section 32C.
32C Section 32A: regulations
(1) The Secretary of State may by regulations for the purposes of section 32A—
(a) specify a controlled drug as a “specified controlled drug”;
(b) specify an offence as a “trigger offence”.
(2) Regulations under subsection (1)—
(a) may make different provision for different purposes or different areas; and
(b) may make transitional, transitory or saving provision.
(3) Regulations under this section are to be made by statutory instrument.
(4) A statutory instrument containing (whether alone or with other provision) regulations under subsection (1)(b) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.
(5) Any other statutory instrument containing regulations under this section is subject to annulment in pursuance of a resolution of either House of Parliament.
(6) In this section “controlled drug” has the same meaning as in the Misuse of Drugs Act 1971.
32D Section 32A: disclosure of obtained information
Information obtained from a sample taken from a person under section 32A may be disclosed—
(a) for the purpose of informing any decision about granting bail in criminal proceedings (within the meaning of the Bail Act 1976) to the person;
(b) for the purpose of informing any decision about the giving of a diversionary caution under Part 6 of the Police, Crime, Sentencing and Courts Act 2022 to the person;
(c) where the person is in police detention or is remanded in or committed to custody by an order of a court or has been granted such bail, for the purpose of informing any decision about the person’s supervision;
(d) where the person is convicted of an offence, for the purpose of informing any decision about the appropriate sentence to be passed by a court and any decision about the person’s supervision or release;
(e) for the purpose of an assessment which the person is required to attend by virtue of section 9(2) or 10(2) of the Drugs Act 2005;
(f) for the purpose of proceedings against the person for an offence under section 12(3) or 14(3) of that Act;
(g) for the purpose of ensuring that appropriate advice and treatment is made available to the person.”
(4) In section 63B, after subsection (5D) insert—
“(5E) A sample may not be taken from a person under this section if—
(a) the person is in police detention by virtue of being taken to a police station after being arrested at a place other than a police station, and
(b) a sample was taken from the person under section 32A.”
(5) In section 66(2) (codes of practice), after “section” insert “32A or”.
(6) In Schedule 1 to the Bail Act 1976 (persons entitled to bail: supplementary provisions), in Part 1 (defendants accused or convicted of imprisonable offences), in paragraph 6B(1)(b)(i), after “under section” insert “32A or”.”—(Chris Philp.)
The new clause provides for testing of controlled drugs upon arrest at a place other than a police station and makes related changes.
Brought up, read the First and Second time, and added to the Bill.
New Clause 14
Terrorist offenders
“(1) Schedule (Notification orders) amends Part 4 of the Counter-Terrorism Act 2008 (notification requirements) so as to enable courts to make notification orders in respect of persons who have committed certain domestic offences or service offences.
(2) In section 43B of the Terrorism Act 2000 (terrorist offenders released on licence: arrest without warrant pending recall decision) in subsection (4) after paragraph (d) insert—
“(e) a person in respect of whom—
(i) a domestic offence notification order (within the meaning of Schedule 4A to the Counter-Terrorism Act 2008), or
(ii) a service offence notification order (within the meaning of Schedule 6A to that Act),
has been made and who is serving a sentence for the offence by virtue of which the order was made.””—(Chris Philp.)
This new clause introduces the Schedule moved by NS1 (which provides for orders applying the notification requirements in Part 4 of the Counter-Terrorism Act 2008 to persons who have committed certain domestic offences or service offences) and also extends powers of arrest and search to persons in respect of whom such orders are made.
Brought up, read the First and Second time, and added to the Bill.
New Clause 21
Dispersal powers: removal of senior police officer authorisation
“(1) Omit section 34 of the Anti-social Behaviour, Crime and Policing Act 2014 (authorisation of constables to use dispersal powers by police officer of at least the rank of inspector).
(2) In consequence of subsection (1), in section 35 of that Act (directions excluding a person from an area)—
(a) in subsection (1)—
(i) omit “and an authorisation is in force under section 34”;
(ii) for “in the locality specified in the direction” substitute “in a locality”;
(b) in subsection (4), omit the second sentence.”—(Chris Philp.)
This new clause removes the requirement that a police officer of at least the rank inspector must authorise the use of dispersal powers under section 35 of the Anti-social Behaviour, Crime and Policing Act 2014.
Brought up, read the First and Second time, and added to the Bill.
New Clause 22
Dispersal powers: extension to local authorities
“(1) The Anti-social Behaviour, Crime and Policing Act 2014 is amended as follows.
(2) In section 35—
(a) in subsections (1), for “a constable in uniform” substitute “an authorised person”;
(b) in subsection (2), (3) and (6), for “constable” substitute “authorised person”;
(c) after subsection (4), insert—
“(4A) Each of the following is an “authorised person”—
(a) a constable in uniform;
(b) a person authorised for the purposes of this Part by the local authority in whose area the public place mentioned in subsection (1) is situated (“authorised LA officer”).”
(d) after subsection (6), insert—
“(6A) A direction given by an authorised LA officer under this section is not valid if the officer—
(a) is asked by the person to whom the direction is given to show evidence of their authorisation, and
(b) fails to do so.”
(e) in subsection (7), for “the constable” substitute “a constable in uniform in the public place”;
(f) for subsection (8) substitute—
“(8) Any constable may withdraw or vary a direction given by a constable under this section.
(8A) Any authorised LA officer may withdraw or vary a direction given by an authorised LA officer under this section.
(8B) A variation under subsection (8) or (8A) must not extend the duration of a direction beyond 48 hours from when it was first given.”
(g) in subsection (11), for ““exclusion period”” to the end substitute “—
“authorised person” has the meaning given by subsection (4A);
“exclusion period” has the meaning given by subsection (1)(b);
“local authority” has the same meaning as in Part 1 (see section 20).”
(3) In section 36 (restrictions)—
(a) in subsections (1), (2), (3) and (4), for “A constable” substitute “An authorised person”;
(b) in subsection (1), for “constable”, in the second place it appears, substitute “authorised person”;
(c) in subsection (5), for “a constable” substitute “an authorised person”.
(4) In section 38 (record-keeping), in subsections (1) and (2), for “A constable” substitute “An authorised person”.
(5) In section 41 (guidance), in subsection (1), for “chief officers of police” to the end substitute “—
(a) chief officers of police about the exercise, by officers under their direction or control, of those officers’ functions under this Part;
(b) local authorities about the exercise, by persons authorised under section 35(4A)(b), of those persons’ functions under this Part.””—(Chris Philp.)
This new clause confers dispersal powers under Part 3 of the Anti-social Behaviour, Crime and Policing Act 2014 on persons authorised by local authorities for the purposes of the Part.
Brought up, read the First and Second time, and added to the Bill.
Ordered, That further consideration be now adjourned. —(Scott Mann.)
Criminal Justice Bill (Fifteenth sitting) Debate
Full Debate: Read Full DebateDepartment: Home Office
Jess Phillips
Main Page: Jess Phillips (Labour - Birmingham Yardley)Department Debates - View all Jess Phillips's debates with the Home Office
Criminal Justice Bill (Fifteenth sitting)
Jess Phillips ExcerptsTuesday 30th January 2024
(2 years, 6 months ago)
Public Bill CommitteesRead Full debate Criminal Justice Bill 2023-24 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 30 January 2024 - (30 Jan 2024)
Jess Phillips (Birmingham, Yardley) (Lab)
I beg to move, That the clause be read a Second time.
I put my name to this new clause tabled by the Mother of the House, my right hon. and learned Friend the Member for Camberwell and Peckham (Ms Harman)—she has had some mentions. I absolutely agree with it. It is important, but, to be completely honest, for me it is far too small in its approach. I believe that the family courts in our country are harming—well, killing—children. Yesterday, the head of the family court division said on BBC Radio 4 that austerity is harming children and putting more children into care. We have been campaigning on family court justice for a decade, and progress has been slower than slow; I cannot think of an adjective. But people who abuse their families should not be allowed access to their children.
The new clause is specifically about those convicted of sexual offences against children. To be completely clear, those convicted in our family courts of sexual offences against children are not barred from parental responsibility for their own children—they can be barred from seeing anybody else’s children, but their own children are not immediately excluded. I am afraid that child abuse cases are taking place in our family courts, and not only do we allow children to be alone with parents who are abusers, but we sometimes remove children from the person trying to keep them safe and place them with those abusers. The new clause would protect children specifically from fathers convicted of serious child sex offences.
When a man commits a serious sexual offence, he has to go on the sex offenders register and is prevented from working with children. That protects other people’s children but not his own, and he retains parental responsibility. Currently, a father convicted of child sexual offences automatically retains parental responsibility. My right hon. and learned Friend’s new clause would make the default position that he would lose his parental responsibility, subject to that being reinstated by a family court on his application if it is judged to be in the child’s best interest.
The new clause follows important work done on this issue by my hon. Friend the Member for Rotherham (Sarah Champion)—including through the Victims and Prisoners Bill Committee, which I was also on—and Jade’s law, which was added to that Bill to protect children by removing parental responsibility from a man who kills a child’s mother, or a parent who kills any parent. The new clause would similarly remove the parental responsibility of the father where he is convicted of sexual offences against children.
There is a BBC News article relating to Bethan in Cardiff, who has spent £30,000 protecting her daughter from the child’s father, who has been convicted of paedophile offences. The clause would make it the default position that parental responsibility is removed in such a case, meaning mothers do not have to go through such an arduous and expensive process. It could, however, be reinstated by the family court on application if it is judged to be in the best interests of the child.
Alex Cunningham (Stockton North) (Lab)
It is a pleasure to serve under your chairmanship this morning, Mrs Latham. I welcome the new clause tabled by my right hon. and learned Friend the Member for Camberwell and Peckham and outlined by my hon. Friend the Member for Birmingham, Yardley. New clause 3, as we have heard, seeks to remove the parental responsibility of people convicted of sexual offences against children and I welcome the tremendous cross-party support it has received. The new clause’s core aspect is the welfare of the child. I am one of those whose ambition in being elected to this place was to work for the benefit of young people, and the new clause does that.
The proposal would go some way to strengthening the law around the welfare of a child whose parent has been convicted of sexual offences against children. There are very limited cases where the court has allowed an application to terminate a person’s parental responsibility. They include a 1995 case in which the court terminated the parental responsibility, acquired by a parental responsibility agreement, of a father who had been sent to prison for causing serious injuries to his child.
In 2013, the court removed the parental responsibility of a father who had been imprisoned for sexual abuse of his child’s half-sisters. In a further case in 2013, the court terminated the parental responsibility of a father who was serving a prison sentence for a violent attack on the child’s mother. Finally, in a 2021 case, the court terminated the parental responsibility of a father who had a significant offending history, including sexual offences against children. In other words, this is already happening.
On Second Reading, I spoke about the need to amend the Bill so that offenders who have sexually harmed children and are sent to prison as a result lose the ability to control their own children from behind bars. That measure is long overdue and will ensure all children are safe from those dangerous predators, including their own parents. The key problem to address is: how can a man—it is usually a man—considered too dangerous to work with or be around other people’s children be allowed to have parental responsibility that effectively makes him responsible for all manner of decisions affecting their child’s life, but which may not be in the best interests of the child? Why should any child be subject to any form of control by a convicted sex offender who is unlikely to be part of their lives for years ahead, and possibly forever?
In response to a question on the proposed new clause, Dame Vera Baird told Committee members that she had reservations about the definition of a sexual offence in the context of the Bill as she felt it might be too wide. That said, I hope the Government will at least support the new clause in principle and perhaps return to the issue on Report so that we can take another step in the quest of all of us here to protect children. I look forward to the Minister’s response.
Laura Farris
The new clause seeks the automatic suspension of parental responsibility where a parent has been convicted of a serious sexual offence against a child. We understand fully the motivation in bringing the new clause. We have discussed it and I respect the remarks that have been made. I want to confine my remarks to the contours of the current system and where that fits in relation to Jade’s law, which the hon. Member for Birmingham, Yardley has already alluded to, and how that was introduced in the Victims and Prisoners Bill.
Starting with the current state of the law, the paramountcy principle is the cornerstone of the family justice system. There must be full consideration of the best interests of the child as a starting point. The hon. Member for Stockton North has just given an example of a number of cases where the parent had committed a very serious sexual offence and the family court acted accordingly to suspend parental responsibility.
Jess Phillips
Perhaps the Minister would like to see my email account, which has a folder specifically for the thousands of cases from the family court where the cornerstone is absolutely not the safety of the child. There are lots of cases where that does not happen—far more than the handful that have been referred to.
Laura Farris
I noted what the hon. Lady said in her opening remarks, but I will go through the legal landscape before I come to other issues. As I say, we are carefully considering the force of the new clause.
In cases in which a parent has been convicted of a child sexual offence, the family court has the power to strip out parental responsibility. That decision is made only after careful consideration of the best interests of the individual children, to ensure that their needs are the driver for action. Decisions about suspending or restricting parental responsibility have significant ramifications for children, which is why judges prefer to consider each case on its individual merits and make a decision that is specific to the best interests of that child.
We must not conflate suspending an individual’s parental responsibility with a punishment. It is a step that is taken to protect the child from harm, and because of that it must be taken when it is in the best interests of the child. The new clause, as drafted, makes no provision for the consideration of the best interests of the child. For that reason, we think it engages article 8 consideration under the European convention.
Members are of course aware that the Government recently tabled an amendment to the Victims and Prisoners Bill that will automatically suspend parental responsibility where a parent has been convicted of the murder or the manslaughter of the other parent. We wish to make clear that distinction. In many cases in which one parent has killed the other, the children involved will have no one left to exercise parental responsibility, apart from the killer of their other parent. In such circumstances, we think that it is right that whoever is left caring for the child, whether that be a grandparent or even the local authority, is spared the onus being on them to commence family proceedings to restrict the offender’s parental responsibility.
Where a parent has committed a serious offence other than murder or voluntary manslaughter, it is likely that there will be another parent able to exercise parental responsibility and apply to the family court.
Jess Phillips
Does the hon. Lady think it is okay for a woman who has been abused and had her husband convicted of paedophilia to pay £30,000 in order to keep her children safe?
Laura Farris
I thank the hon. Lady for her intervention. That case has caused concern, and we have been looking carefully at the legal aid position, which I will come on to.
As I was saying, where a parent has committed a serious offence other than murder or manslaughter, it is likely that there will be another parent able to exercise parental responsibility and make the application to the family court—I will come to legal aid in a moment—for the well-established method of restricting the offender’s parental responsibility.
Lord Meston, a family court judge who sits in the House of Lords, made a speech on the Victims and Prisoners Bill in which he warmly welcomed the inclusion of Jade’s law as a way of automatically restricting the rights of the other parent. I just say this in passing. He was invited to consider whether there should be the automatic suspension of parental responsibility if another kind of crime was committed. He said something that we have noted as part of our thinking:
“However, on reflection, I do not think that the Crown Court should be expected, as part of a sentencing exercise, to make automatic prohibited steps orders”
in different cases. He continued:
“The Crown Court will not have, and cannot be expected to have, a full appreciation of the family’s structure and dynamics, and of the circumstances of the children concerned, and will not have input from Cafcass.” Lords—[Official Report, House of Lords, 18 December 2023; Vol. 834, c. 2094.]
That is not determinative of our thinking, but it is the reflection of a family court judge who sits in the other place. That is what he said in relation to Jade’s law while, of course, welcoming it.
The automatic nature of the new clause would mean there would be no space for the court to consider the wishes of the other parent or the wishes of the children as to whether the matter should be brought to a family court.
Jess Phillips
The new clause clearly states that the other parent can apply to the court to have their wishes heard, but it is not the responsibility of a completely innocent mother, in most cases, to have to protect her child from a sex offender.
Laura Farris
I accept that the new clause gives the other parent the right to return to the family court, but effectively it could force a child to make applications to the family court to have their wishes considered.
Laura Farris
Because there has to be an application for the reinstatement of parental responsibility. That is what the new clause states at proposed new section 2A(2).
Jess Phillips
The hon. Lady said that a child would have to make an application to the family court. How is that the case?
Laura Farris
The child would have to advance what their best interests are to the family court, if parental responsibility has already been suspended.
Laura Farris
We have carefully considered the case in Cardiff. I want to make it clear that legal aid is available for a prohibited steps order and specific issue order in specific circumstances, subject to means and merits tests and evidence requirements relating to domestic abuse or the protection of children being met. Where the subject of an order has a relevant conviction for a child abuse offence, it is likely that the application would satisfy the relevant evidence and merits criteria. We are looking into why that was not the case for the lady in Cardiff.
Jess Phillips
Could I also open all the other cases with the Legal Aid Agency? The vast majority of people I encounter—there are thousands, and I have sat in the family court for hours—have not been able to access legal aid. Every one of them is a victim. Perhaps the Minister could look into that.
Laura Farris
That warrants a response, and the hon. Lady will get one.
My final point, to which the hon. Lady alluded in her opening remarks, when she said she hoped the provision might go wider, is that one of the conceptual difficulties with the new clause is that it would seek to remove parental responsibility in cases of serious child sexual abuse, but it is silent on, for example, child murder. Or what about perhaps a serious case of terrorism, where we could advance a plausible argument? We think there are issues around the scope of the new clause.
Jess Phillips
I could not agree more—the scope needs to be much wider—so will the Minister and the Government, by Report stage or in the Lords, finally act on the harms review by tabling amendments to the Bill that we can all be proud of?
Laura Farris
As I say, we are looking at the definitional issues. We are also looking carefully at the paramountcy principle, which underpins the way in which cases are approached in the family court. The new clause has a worthy aim. We have huge sympathy for families in these circumstances and want to do as much as possible to support them in getting the right outcome for their children. At present, we do not think the new clause is the right way to do that, and we urge the hon. Lady to withdraw it.
Jess Phillips
For nearly 10 years I have had Ministers stand in front of me and say, “We are a bit worried about” some legal word or other. How many children have died because of family court proceedings in the 10 years that we have been trying to raise the alarm? The family courts in our country will be the next Rotherham or Rochdale. State-sanctioned child abuse is going on and we all just turn a blind eye. The things that I have seen in courts are harrowing. I have watched children being removed from their loving mothers and placed fully in the care of paedophiles—proven child abusers. For me, we cannot casually sit here and pretend that that is okay.
Funnily enough, one of the people I started this campaign with, all those years ago, was the current Justice Secretary. Why is it taking so long to do something about the family courts in our country? They are actively dangerous, everybody knows it and nobody is doing anything about it. It is like the Post Office; I will not be one of those people who sat by and did nothing.
I will not press the new clause to a Division, because its scope is not wide enough and does not deal with half the harms that I see. If the Minister wants to take away the parental responsibility for children from terrorists she can knock herself out—I will support it. I will support any movement towards progress in the family court, because I have seen none. I look forward to the Government coming forward with an all-singing, all-dancing proposal that will make children safe. I beg to ask leave to withdraw the motion.
Motion, by leave, withdrawn.
Vicky Ford (Chelmsford) (Con)
On a point of order, Mrs Latham. I find it really hard to hear my colleagues in this room. Could I ask you, and other hon. Members, to please speak as loudly as possible?
Jess Phillips
In a case that I have come across, a woman who was a victim of domestic abuse was charged under the crime of joint enterprise and received a longer sentence—because she pleaded not guilty—than the person who abused her and killed somebody by pulling the trigger of a gun. Is my hon. Friend concerned that in some cases of joint enterprise, those who have not had it proven that they had a significant part to play get longer sentences than those who did?
Peter Dowd
My hon. Friend gets right to the nub of this matter, and she is absolutely right. I agree with her point. Dr Gerry points out that the case of Fiaz, in which she was lead counsel, highlights the need for legal clarity. Judges are currently required to direct juries to consider the significance of a defendant’s contribution to an offence, and that is leading to numerous miscarriages of justice. Only Parliament can fix that.
I have a number of questions for the Minister. If the new clause is unnecessary, as may be claimed, can the Minister explain why when schoolchildren spontaneously gather for a fight and one of them unfortunately dies, they are sometimes all prosecuted even when they have had no contact with the victim and no weapon? That is one of the many such examples provided by Dr Gerry, who, as I said, was the lead counsel in the landmark Jogee case.
Is the Minister be willing to meet Dr Gerry and other experts in this field who can explain why this change of law is so badly needed? Can the Minister explain why the Crown Prosecution Service’s own database suggests that black people, as I indicated earlier, are 16 times more likely than white people to be prosecuted for homicide or attempted homicide under joint enterprise laws? What assessment have the Government made of the reasons behind that remarkable statistic? It is shocking. Is it not obvious why campaigners say that joint enterprise is too often used as a racist dragnet? Finally, will the Minister agree that it is not in the public interest to prosecute those who have not made a significant contribution to a crime?
Jess Phillips
Can the Minister tell me what protections are in place for the woman in the case that I outlined? She was considered to be an accessory to a crime. She was a victim of coercive and controlling behaviour, and the crime was a part of a pattern of domestic abuse.
Laura Farris
In that circumstance, the defence of duress would be available to the victim in the ordinary way.
Jess Phillips
Currently, that is absolutely not what is happening in our criminal courts. It is currently no defence for victims of domestic abuse in these cases to say, “I’m a victim of domestic abuse: that’s why I ended up here.” The Minister is saying that there is the defence of duress; I am saying that it never gets used. It does not stack up, and this is not happening in reality. She has spoken of her pride in the Government over coercive control. Does she think that there need to be specific elements, within this conversation about joint enterprise, to protect people who are coerced into such behaviours?
Laura Farris
We will come on to some amendments of that nature and I will deal with them in due course, but the defence of duress is a standard defence in the criminal context. [Interruption.] These are the criminal defences that get advanced.
In response to the hon. Member for Bootle, this is an area of the law that is intrinsically linked with other inchoate offences such as encouraging or assisting a crime. We think that it is too difficult to require the prosecution to prove a significant contribution; as we say, the very important case of Jogee has set clear parameters for both the conduct element and the mental element, which we think creates the correct framework of common law. For those reasons, the Government are unable to support the new clause, and we ask the hon. Member for Bootle to withdraw it.
Jess Phillips
I support the shadow Minister’s every word and point out, as he has done, the level of cross-party support for a change to this particular piece of law. In some way, I hope to outline some of the reasons why not many cases of cuckooing have been brought forward. I saw a case of a young woman, who was exploited from childhood into adulthood through the care system—and then in her own private property; men would come around to rape, sexually assault and sell her in her own property. People might, perfectly reasonably, say, “Why wouldn’t you call the police?” Well, there were kilos of cocaine and heroin left in her property, and she was absolutely convinced—nothing that I could convince her otherwise—that she would be criminalised if she called the police to her home. In other cases, there might be a cannabis farm in the ceiling, for example, and people are convinced that they will be criminalised.
Without doubt, there are more people in our prisons who have been victims of human trafficking than there are human traffickers. Certainly, for those charged under any of the crimes in the Modern Slavery Act, there will be many more people in our prisons who should actually have been saved by the provisions in that Act that say that criminalisation should not occur—yet it does, every single day; we continue to criminalise people in that manner, even when they are the victim of the crime. The vulnerable people in these cases know that, so they do not report the crimes.
We have had lots of discussions about finding weapons that are not just a kitchen knife in people’s houses. If authorities were to go into the home of a young woman who had been in the care system and had been difficult at times, and they found lots of drugs and weapons, do we honestly think that she would not be convicted of that crime? If we do, we are not living in reality at all. It is vital to have an understanding of what happens in these cuckooing cases. We need to recognise it to try to overcome some of the criminalisation, and the threat of criminalisation, that already exists.
I have met girls who have had photographs taken of them holding guns that have been used in fatal injuries, as a threat to them that they will be put up for that crime. When somebody has been groomed that well, they will believe it, no matter what I say—even if I say, “I will stand next to you in the courtroom and I will make sure this doesn’t happen.” It does happen. Recognising in law that this crime is specifically about taking over a home, and leaving incriminating evidence around the place, is really important in changing that.
Chris Philp
It is, as always, a pleasure to serve under your chairmanship, Mrs Latham. I thank the hon. Member for Stockton North for the thoughtful and considered way in which he moved the new clause. He and the hon. Member for Birmingham, Yardley both expressed sentiments about protecting vulnerable individuals from the practice known as cuckooing, and I will start by saying that the Government are just as concerned as they are. We are united in our shared desire to protect vulnerable people from the exploitation that they both described, so we are unanimous in our objectives in this area.
As the hon. Member for Stockton North said, most commonly the practice of cuckooing is associated with drug dealing, but it can be associated with other forms of criminality. I will raise a couple of points about his new clause. First, as it is currently drafted, there would be no requirement for there to be any coercion. For the proposed new offence to be made out, it would simply be sufficient for somebody—the perpetrator or alleged perpetrator—to occupy a residential building lawfully occupied by another, and then to commit a criminal offence.
The new offence of cuckooing would be made out even if there was no coercion and, in fact, even if it was done consensually. If the person who owned the house gave their free consent, without coercion, to the alleged perpetrator, the new offence proposed by the new clause would be committed. As I say, there is no requirement in the drafting for any form of coercion or even non-consent, whether or not there was coercion or exploitation. The way it is drafted goes beyond what I would expect in a cuckooing offence, where I imagine there would be some form of coercion, and non-consent by the person who owns the property.
Criminal Justice Bill (Sixteenth sitting) Debate
Full Debate: Read Full DebateDepartment: Home Office
Jess Phillips
Main Page: Jess Phillips (Labour - Birmingham Yardley)Department Debates - View all Jess Phillips's debates with the Home Office
Criminal Justice Bill (Sixteenth sitting)
Jess Phillips ExcerptsTuesday 30th January 2024
(2 years, 6 months ago)
Public Bill CommitteesRead Full debate Criminal Justice Bill 2023-24 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 30 January 2024 - (30 Jan 2024)
Chris Philp
What is certain is that under the new clause, as drafted, a criminal offence of cuckooing could be committed even where there is no coercion and consent is freely given. I will be interested to hear the hon. Member’s response to that, if he plans to speak. On my other points, if a criminal offence occurs at a premises because they are being used as a base for criminal activities, it is not likely but certain that that criminal offence will be prosecuted. That is a certainty. If a criminal offence has been committed, that can obviously be prosecuted as a matter of certainty.
Jess Phillips (Birmingham, Yardley) (Lab)
On the Minister’s point about the trespass offence, does he think that in such circumstances a person would get anywhere near the sentence that they would for taking over a vulnerable person’s home and coercing them? Is that an appropriate response? Secondly, what has made the Government change their mind after they committed to making cuckooing an offence, which Conservative Members and I have pushed for for some time? Now the Government are saying, “Don’t worry. It’s absolutely fine.”
Chris Philp
The antisocial behaviour plan, published in the spring of last year, committed to engaging with stakeholders on that question. That engagement has happened and continues to happen. On the point about penalties, if someone is occupying someone else’s house and is dealing, for example, class A drugs, the maximum penalty, wherever that happens, is life. Under the Modern Slavery Act, the maximum sentence under sections 1 and 2 for making another person a victim of modern slavery is life imprisonment. The penalties available are severe. In the two examples that I just gave, the maximum sentence is life imprisonment.
The maximum penalty for participating in the activities of an organised crime group under section 45 of the Serious Crime Act 2015 is five years. On the inchoate offences under sections 45 or 46—that is, where someone is incited or encouraged to commit an offence—the maximum penalty is the same as that for the primary offence. So, it is not true that the maximum sentences available in this sphere are in any way light or incon-sequential.
This matter obviously concerns everybody. It is as much a matter of enforcement as anything else because, as I have explained, we have a number of different laws on the statute books that cover such behaviour with significant penalties attached. The question is how we make sure that they are properly enforced. As drafted, the new clause probably does not have quite the intended effect, because it is widely drafted. Even if it were drafted to include a requirement for duress or coercion or that consent had been withheld, we could legitimately debate whether it does or does not fill a lacuna.
In addition to the criminal sanctions that I have just enumerated, there are a very large number of civil orders available to try to prevent a property being misused. I will not go through the detail of them all because that will take too long, but I will list what they are. They include closure notices, community protection notices, public space protection orders, civil injunctions under part 1 of the Anti-social Behaviour, Crime and Policing Act 2014, criminal behaviour orders, gang injunctions, a section 8 notice under the Housing Act, and slavery and trafficking risk orders. Those are civil measures, but they are in addition to the various criminal measures that I enumerated.
In conclusion, the Government accept the spirit of the concern that has been raised. Cuckooing is a concern; it happens, and it needs to be stopped. It is worth saying that we have closed down a very large number of county lines over the last four years—I think about 3,000. Enforcement action is happening. There is scope to go further, but numerous existing criminal offences give the police the powers they need. We need, collectively, to make sure that the police always exercise those powers where cuckooing occurs.
Alex Cunningham
I am grateful to the Minister for providing clarification on that. As he heard me say earlier, we are looking at the new clause very much as creating a specific offence of cuckooing. I recognise the lesson in drafting that he has given me this afternoon.
It had been my intention to push the new clause to a vote but, after the lesson in drafting from the Minister, I no longer intend to do so. The Minister is aware, however, that there is considerable cross-party support for this aim. The Minister says that he has a problem with the drafting of the clause, but he does not appear to have a problem with its purpose, so on that basis I ask that he work with others—some from his own side, although we are happy to pitch in as well—to bring forward what we believe is needed: a specific clause on cuckooing that will once and for all protect the victims, rather than giving free rein to those who choose to exploit them. On that basis, in the hope that we will see something come back later, I beg to ask leave to withdraw the motion.
Motion, by leave, withdrawn.
New Clause 23
Sexual exploitation of an adult
“(1) The Sexual Offences Act 2003 is amended as follows.
(2) Section 52 is amended as follows—
(a) in the title for ‘Causing or inciting prostitution’ substitute ‘Sexual exploitation’, and
(b) in paragraph (1)(a) for ‘causes or incites another person to become a prostitute’ substitute ‘sexually exploits another person’.
(3) Section 53 is amended as follows—
(a) in the title for ‘prostitution’ substitute ‘sexual exploitation’, and
(b) in paragraph (1)(a) for ‘prostitution’ substitute ‘sexual exploitation’.
(4) Section 54 is amended as follows—
(a) in subsection (2) for ‘sections 51A, 52, 53 and 53A’ substitute ‘section 53A’, and
(b) at end insert—
‘(4) In sections 52 and 53 “sexual exploitation” means conduct by which a person manipulates, deceives, coerces or controls another person to undertake sexual activity.’.” —(Jess Phillips.)
This new clause is an amendment to the Sexual Offences Act 2003, specifically in Sections 52 and 53, “replacing prostitution for gain” with “sexual exploitation of an adult”.
Brought up, and read the First time.
The Chair
With this it will be convenient to discuss the following:
New clause 26—Loitering and soliciting: repeal—
“Section 1 of the Street Offences Act 1959 (loitering or soliciting for purposes of prostitution) is repealed.”
This new clause repeals soliciting and loitering as an offence.
New clause 30—Power of Secretary of State to disregard convictions or cautions: Loitering or soliciting for purposes of prostitution—
“(1) Section 92 of the Street Offences Act 1959 is amended as follows.
(2) For subsection (1) substitute—
‘(1) A person who has been convicted of, or cautioned for, an offence in circumstances where—
(a) the conduct constituting the offence was sexual activity between persons of the same sex, or
(b) the offence was committed under section 1 of the Street Offences Act 1959, may apply to the Secretary of State for the conviction or caution to become a disregarded conviction or caution.’
(3) In subsection (2) after first ‘caution’ insert ‘received in the circumstances set out in subsection (1)(a)’.”
A new clause that allows a process allowing the Secretary of State to disregard convictions and cautions received under section 1 of the Street Offences Act 1959.
New clause 44—Offence of enabling or profiting from prostitution—
“(1) A person or body corporate (C) commits an offence if they—
(a) facilitate, whether online or offline, or
(b) gain financially from
a person (A) engaging in sexual activity with another person (B) in exchange for payment or other benefit, or the promise of payment or other benefit, and the conditions in subsection (2) are met.
(2) The conditions are—
(a) that C knows or ought to know that A is engaging in, or intends to engage in, sexual activity for payment or other benefit; and
(b) that C is not a dependent child of A.
(3) For the purposes of this section—
(a) ‘Sexual activity’—
(i) means any acts which a reasonable person would, in all the circumstances but regardless of any person’s purpose, consider to be sexual,
(ii) requires A and B to be in each other’s presence,
(b) ‘Facilitates’ includes, but is not limited to, causing or allowing to be displayed or published, including digitally, any advertisement in respect of sexual activity involving A.
(4) A person guilty of an offence under this section is liable—
(a) on summary conviction, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 10 years.”
This new cause would make it an offence to facilitate or profit from the prostitution of another person.
Jess Phillips
The new clause seeks to replace the term “Controlling prostitution for gain” with
“sexual exploitation of an adult”
and to provide a definition of “adult sexual exploitation” through the Sexual Offences Act 2003, as one does not currently exist.
In 2015, a significant change was made through the Serious Crime Act 2015 whereby “controlling a child prostitute” or a “child involved in pornography” was replaced with
“sexual exploitation of a child”.
That led to a shift in perceptions—we would never use the term “child prostitute” now, but we definitely did when I was first working in this field—so that child victims of exploitation were exactly that: victims. It also allowed for the improvement of service provision and available support. It is not perfect by any stretch of the imagination, but it is better. Children who were once labelled as prostitutes or as having made poor lifestyle choices are now quite rightly recognised as children who have been groomed.
Unfortunately, no such change has occurred for adult victims of sexual exploitation. Once an individual reaches the age of 18, there is often a sudden change in the perception of their experiences by professionals and services—actually, the problem often occurs once an individual reaches the age of 16, as that is the age of consent. Victims of adult sexual exploitation are falsely identified as consensually engaging in sex work, and the labelling of that abuse as “prostitution” in law only serves to perpetuate it. That mislabelling has led to countless people across the UK falling through the gaps and not receiving necessary support as their experiences are not recognised.
Laura Farris
I am happy to take that correction—sorry, I was just speaking informally when I should not have been.
On new clauses 26 and 30, section 1 of the Street Offences Act 1959 enables the police to divert individuals engaged in on-street sex work to alternative interventions. I will reference some of the points made by the hon. Member for Birmingham, Yardley, because we did some research into what is happening. First, the National Police Chiefs’ Council’s guidance, which advises officers, makes clear that it will not be commonplace to prosecute individuals who sell sex in public, and that every effort should be made to refer them to partner agencies and seek a diversionary route where possible. I have looked at the most recent data, which I will share with the Committee. In the year to March 2023, 301 soliciting crimes were recorded, of which 32—around 10%—resulted in either a charge or a summons. Of those that were charged, there has been on average less than one conviction a year from 2010 until today.
The hon. Member for Birmingham, Yardley also raised the issue of criminal convictions staying on people’s records. If someone is trying to exit enforced prostitution and rebuild their life, that is profoundly unhelpful—I agree with her without reservation. She will be aware of the announcement that spent convictions are now being removed from criminal records; that was in the Police, Crime, Sentencing and Courts Act, but has been reinforced by the Lord Chancellor a number of times. I have already said that I will write to her about something, but I will just update her on that. We are working to try to get criminal records off people’s profiles, so that they can move on with their lives. That applies for all offences, because we think it is important that rehabilitation should have a serious meaning, whatever the offence.
Where we have this offence at the moment, we are principally seeing the police using it as a tool for diversion—that can be interpreted in a number of ways, but that is what we are principally seeing. The police have a challenging role, balancing the need to safeguard vulnerable on-street women who are selling sex from the harm they face, with the need to protect neighbourhoods from the negative consequences of that type of activity. Obviously, other crimes can often be concomitant to prostitution, particularly on the part of the people who control the women. There is also the issue of children being able to witness stuff like that. The police have to strike a balance there. Careful consideration of the law in this area is warranted, even when such considerations are placed in the balance. At the moment, the law in this area gives the police the flexibility to balance the different priorities, but we are thinking hard.
New clause 44 was tabled by the hon. Member for Swansea East, who raised interesting points that intersect with modern slavery. She made an interesting observation about something that I have seen in some of my other work, about where numbers all link to one person, or whether the same number is being duplicated across different sites. That goes right to the heart of modern slavery, and is a pressing issue for the Home Office.
I want to flag to the hon. Lady one of the difficulties that cuts across her new clause. It would effectively put an end to online services where individuals selling sex advertise lawfully. The research that the Home Office commissioned from Bristol University, which we published in 2019, showed that some people prefer to use technology to advertise because they feel safer doing so. The Government’s priority is to keep people engaged in this kind of work safe from harm, so we have to tread a difficult balance. We do not want to do something antithetical to protecting people from harm, which might happen if individuals selling sex were deprived of using technology and somehow diverted on to the street, forced underground or forced into an inherently more dangerous practice. It is reasonable for us to consider all the outcomes that could result, although I am not disagreeing with the force of the hon. Lady’s argument.
The Online Safety Act 2023, which is going through various stages of commencement now, should ensure that online platforms for individuals advertising are responsible and accountable for the content on their sites. They are required in law to take proactive steps to prevent those sites from being used by criminals. The commencement of the Online Safety Act is happening currently, so it is difficult to give an assessment, but all of this was covered in it. That includes a requirement for sites to proactively identify and remove content that is linked to priority offences, including controlling and inciting prostitution for gain, and human trafficking and modern slavery. As I have said, this cuts across these issues. With all due respect to the arguments advanced, I invite hon. Members not to press their new clauses.
Jess Phillips
I would welcome any intervention from the Minister. We would never write the phrase “child prostitute” into a document, so we should be really mindful of why on earth we allow that to continue with adults. We would call it exploitation; we call it the crime that it is.
Paying anybody for sex, even if completely legitimately —let’s face it, this mainly involves women—is fundamentally not a consensual act. None of us would choose it, would we? Would anybody here choose to have sex for money? We do not have to choose it from within a framework that means we will never have to. Would any of us choose it for our daughters? Would any of us be happy for our daughters to be on OnlyFans, selling it legally? I do not have any daughters, but I would certainly have a problem with my sons purchasing it.
The idea that this is a choice-based environment always gets used as a reason for not making progress on the issue. My concern is that there is no definition of adult sexual exploitation on a statutory footing, as my hon. Friend the Member for Stockton North has pointed out. Perhaps I would withdraw the motion on the basis that the Government go away and include the idea of adult sexual exploitation in the Bill, or even in the Victims Bill as it goes through. Why on earth do we not have a definition of adult sexual exploitation, as if the adults who do these things choose to do them, even though we have recognised that none of us would?
I beg to ask leave to withdraw the motion.
Motion, by leave, withdrawn.
New Clause 24
Human trafficking
(1) Section 2 of the Modern Slavery Act 2015 is amended as follows.
(2) In subsection (1) for ‘arranges or facilitates the travel of’ substitute ‘recruits, transports, transfers, harbours or receives through force, fraud or deception’.
(3) In subsection (2) for ‘travel’ substitute ‘the matters mentioned in subsection (1)’.
(4) Omit subsections (3) to (5).
(5) In paragraph (6)(a) for ‘arranging or facilitating takes’ substitute ‘matters mentioned in subsection (1) take’.
(6) Omit paragraph (6)(b).
(7) In paragraph (7)(a) for ‘arranging or facilitating takes’ substitute ‘matters mentioned in subsection (1) take’.
(8) In paragraph (7)(b) for the first ‘the’ substitute ‘any’.—(Jess Phillips.)
This new clause brings the definition of human trafficking in the Modern Slavery Act 2015 in line with the UN definition, particularly removing the requirement for exploitation to have involved travel.
Brought up, and read the First time.
Jess Phillips
I beg to move, That the clause be read a Second time.
The new clause seeks to align our definition of “human trafficking” with the UN definition, particularly removing the requirement for exploitation to have involved travel. We have heard all about cuckooing today. You could be in your house for this; you might not have travelled anywhere.
The UN definition of human trafficking, as set out in the Palermo protocol, is the
“recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.”
As somebody who has spent time at the UN, I can say that its writing style is never snappy. It becomes the place that time forgot when you are trying to agree wording.
In contrast to that, the definition of human trafficking set out in section 2 of the Modern Slavery Act 2015 refers only to cases in which
“the person arranges or facilitates the travel of another person…with a view to”
that other person “being exploited.” Currently, cases that would be considered human trafficking by the UN are not considered to be human trafficking according to our legislation. For example, the current definition excludes cases of harbouring individuals; we just talked about that.
Therefore, as we have discussed, instances of sexual exploitation taking place in one location—such as a person’s home, somewhere they have travelled to freely, or online—would be considered human trafficking under the UN definition but not under the Modern Slavery Act. That happened to a woman who was supported by the STAGE project. She was placed in a B&B when she was facing extreme poverty, homelessness and mis-treatment. Unfortunately, she faced sexual exploitation and forced labour, perpetrated by the owners of the B&B. That is not uncommon in our unregulated supported accommodation services. That bed and breakfast had been used by housing and social services authorities for years to house vulnerable people, and the owners exploited their vulnerabilities. That woman was not trafficked and would not have been covered by the definition; inconsistency with the UN definition means that people like her are not protected in this country.
Alex Cunningham
Human trafficking has been with us for thousands and thousands of years, but it has no place in a modern society. The nature of human trafficking offences makes it challenging to assess the number of victims in the UK, but we know that referrals through the national referral mechanism for modern slavery and human trafficking have increased. In the year ending December 2022, 7,936 referrals were made for potential victims of exploitation taking place solely in the UK. That was an increase of 10.3% on the previous year. Almost two thirds of British victims of modern slavery and human trafficking are children being exploited for criminality. That accounts for 2,534 children.
The National Crime Agency has warned that the rising cost of living has almost certainly exacerbated the risks of modern slavery and human trafficking. It has said that it is likely that organised crime groups will consider ways to maintain profitability by offsetting rising costs on to victims, such as by spending less time on victim welfare and by coercing victims into providing even more arduous and risky services.
I am grateful that my hon. Friend the Member for Birmingham, Yardley has provided the Committee with the opportunity to discuss the legal framework around human trafficking. I am sure that all of us in this room would wish that framework to be as robust as possible. As my hon. Friend explained, new clause 24 amends the definition of human trafficking in the 2015 Act to bring it in line with the UN definition, notably by removing the requirement for exploitation to have involved travel. As such, there are a number of cases that would be considered human trafficking by the UN that would not be recognised as such by our criminal justice system.
I am interested to hear the Minister’s thoughts on the discrepancy, particularly if she has had any sense from the Department of the number of cases that may fall into that legislative gap, or if she is aware of any cases of the types that my hon. Friend the Member for Birmingham, Yardley outlined, which would not be recognised as human trafficking in English criminal law.
I am particularly interested to hear some comments from the Minister in relation to my hon. Friend’s point about offences that take place online, which may not fit the current requirement to have involved travel. Such online offending has increased significantly in recent years with even easier access to digital devices and the internet, and it was driven up during covid lockdowns. I wonder whether the Department has considered the impact of amending the framework in the way that my hon. Friend has suggested. I look forward to the Minister’s response.
Laura Farris
I thank the hon. Member for Birmingham, Yardley for setting out her case for the new clause. I understand the concern underpinning the new clause that there are inconsistencies between the definition of human trafficking in the 2015 Act and some of the international definitions, including the Palermo protocol. However, the definitions set out in sections 1 and 2 of the 2015 Act capture all aspects of modern slavery offending, from international cross-border human trafficking in section 2 to the enslavement of victims in a domestic setting.
In cases where the travel aspect of trafficking is not present or cannot be proven to the criminal standard, criminals can be prosecuted for an offence under section 1 of the 2015 Act. That makes it an offence for a person to hold someone in any kind of slavery or servitude, or to require them to perform forced, coerced or compulsory labour. There is no need for the prosecution to prove that travel was an element of the section 1 offence. I point out too that both section 1 and section 2 attract the same maximum penalty of life, which is a reflection of how seriously both offences are viewed.
Jess Phillips
Does the Minister know how many cases of that were convicted last year, or in how many life has ever been given?
Laura Farris
But the police do not tell us that they lack the tools or that there is a gap in the law that requires us to amend section 2. Together, the offences defined in sections 1 and 2 comprehensively cover modern slavery and they are collectively aligned to the international definitions. The police tell us that they provide a clear legal framework. We think that new clause 24 would create overlapping offences, which could cause confusion among the police and prosecutors. I hope that, in light of that explanation, the hon. Member for Birmingham, Yardley will be content to withdraw her new clause.
Jess Phillips
I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 31
Reasonable force in domestic abuse cases
(1) Section 76 of the Criminal Justice and Immigration Act 2008 (reasonable force for purposes of self-defence etc.) is amended as follows.
(2) In subsection (5A) after ‘In a householder case’ insert ‘or a domestic abuse case.
(3) In subsection (6) after ‘In a case other than a householder case’ insert ‘or a domestic abuse case’.
(4) After subsection (8F) insert—
‘(8G) For the purposes of this section ‘a domestic abuse case’ is a case where—
(a) the defence concerned is the common law defence of self-defence,
(b) D is, or has been, a victim of domestic abuse, and
(c) the force concerned is force used by D against the person who has perpetrated the abusive behaviour referred to in paragraph (b).
(8H) Subsection (8G)(b) will only be established if the behaviour concerned is, or is part of, a history of conduct which constitutes domestic abuse as defined in sections 1 and 2 of the Domestic Abuse Act 2021, including but not limited to conduct which constitutes the offence of controlling or coercive behaviour in an intimate or family relationship as defined in section 76 of the Serious Crime Act 2015 (controlling or coercive behaviour in an intimate or family relationship).’
(5) In subsection (9) after ‘householder cases’ insert ‘and domestic abuse cases’.—(Jess Phillips.)
Statutory defence for victims of domestic abuse who may have been coerced into committing certain crimes or driven to use force against their abuser, as a result of being a victim of domestic abuse.
Brought up, and read the First time.
The Chair
With this it will be convenient to discuss the following:
New clause 32—Defence for victims of domestic abuse who commit an offence—
(1) A person is not guilty of an offence if—
(a) the person is aged 18 or over when the person does the act which constitutes the offence,
(b) the person does that act because the person is compelled to do it,
(c) the compulsion is attributable to their being a victim of domestic abuse, and
(d) a reasonable person in the same situation as the person and having the person’s relevant characteristics would have no realistic alternative to doing that act.
(2) A person may be compelled to do something by another person or by the person’s circumstances.
(3) Compulsion is attributable to domestic abuse only if—
(a) it is, or is part of, conduct which constitutes domestic abuse as defined in sections 1 and 2 of the Domestic Abuse Act 2021, including but not limited to conduct which constitutes the offence of controlling or coercive behaviour in an intimate or family relationship as defined in section 76 of the Serious Crime Act 2015, or
(b) it is a direct consequence of a person being, or having been, a victim of such abuse.
(4) A person is not guilty of an offence if—
(a) the person is under the age of 18 when the person does the act which constitutes the offence,
(b) the person does that act as a direct consequence of the person being, or having been, a victim of domestic abuse as defined at subsection (3)(a) above, and
(c) a reasonable person in the same situation as the person and having the person’s relevant characteristics would do that act.
(5) For the purposes of this section ‘relevant characteristics’ means age, sex, any physical or mental illness or disability and any experience of domestic abuse.
(6) In this section references to an act include an omission.
(7) Subsections (1) and (4) do not apply to an offence listed in Schedule [Offences to which the defence for victims of domestic abuse who commit an offence does not apply].
(8) The Secretary of State may by regulations amend Schedule [Offences to which the defence for victims of domestic abuse who commit an offence does not apply].
(9) The Secretary of State must make arrangements for monitoring of the types of offence for which victims of domestic abuse are prosecuted and use this evidence to inform an annual review of the offences listed in Schedule [Offences to which the defence for victims of domestic abuse who commit an offence does not apply] and any amendment to Schedule [Offences to which the defence for victims of domestic abuse who commit an offence does not apply].
Statutory defence for victims of domestic abuse who may have been coerced into committing certain crimes as a result of being a victim of domestic abuse.
New schedule 2—Offences to which the defence for victims of domestic abuse who commit an offence does not apply—
Common Law Offences
1 False imprisonment.
2 Kidnapping.
3 Manslaughter.
4 Murder.
5 Perverting the course of justice.
6 Piracy.
Offences against the Person Act 1861 (c. 100)
7 An offence under any of the following provisions of the Offences Against the Person Act 1861—
• section 4 (soliciting murder)
• section 16 (threats to kill)
• section 18 (wounding with intent to cause grievous bodily harm)
• section 20 (malicious wounding)
• section 21 (attempting to choke, suffocate or strangle in order to commit or assist in committing an indictable offence)
• section 22 (using drugs etc to commit or assist in the committing of an indictable offence)
• section 23 (maliciously administering poison etc so as to endanger life or inflict grievous bodily harm)
• section 27 (abandoning children)
• section 28 (causing bodily injury by explosives)
• section 29 (using explosives with intent to do grievous bodily harm)
• section 30 (placing explosives with intent to do bodily injury)
• section 31 (setting spring guns etc with intent to do grievous bodily harm)
• section 32 (endangering safety of railway passengers)
• section 35 (injuring persons by furious driving)
• section 37 (assaulting officer preserving wreck)
• section 38 (assault with intent to resist arrest).
Explosive Substances Act 1883 (c. 3)
8 An offence under any of the following provisions of the Explosive Substances Act 1883—
• section 2 (causing explosion likely to endanger life or property)
• section 3 (attempt to cause explosion, or making or keeping explosive with intent to endanger life or property)
• section 4 (making or possession of explosives under suspicious circumstances).
Infant Life (Preservation) Act 1929 (c. 34)
9 An offence under section 1 of the Infant Life (Preservation) Act 1929 (child destruction).
Children and Young Persons Act 1933 (c. 12)
10 An offence under section 1 of the Children and Young Persons Act 1933 (cruelty to children).
Public Order Act 1936 (1 Edw. 8 & 1 Geo. 6 c. 6)
11 An offence under section 2 of the Public Order Act 1936 (control etc of quasi-military organisation).
Infanticide Act 1938 (c. 36)
12 An offence under section 1 of the Infanticide Act 1938 (infanticide).
Firearms Act 1968 (c. 27)
13 An offence under any of the following provisions of the Firearms Act 1968—
• section 5 (possession of prohibited firearms)
• section 16 (possession of firearm with intent to endanger life)
• section 16A (possession of firearm with intent to cause fear of violence)
• section 17(1) (use of firearm to resist arrest)
• section 17(2) (possession of firearm at time of committing or being arrested for specified offence)
• section 18 (carrying firearm with criminal intent).
Theft Act 1968 (c. 60)
14 An offence under any of the following provisions of the Theft Act 1968—
• section 8 (robbery or assault with intent to rob)
• section 9 (burglary), where the offence is committed with intent to inflict grievous bodily harm on a person, or to do unlawful damage to a building or anything in it
• section 10 (aggravated burglary)
• section 12A (aggravated vehicle-taking), where the offence involves an accident which causes the death of any person
• section 21 (blackmail).
Criminal Damage Act 1971 (c. 48)
15 The following offences under the Criminal Damage Act 1971—
• an offence of arson under section 1
• an offence under section 1(2) (destroying or damaging property) other than an offence of arson.
Immigration Act 1971 (c. 77)
16 An offence under section 25 of the Immigration Act 1971 (assisting unlawful immigration to member state).
Customs and Excise Management Act 1979 (c. 2)
17 An offence under section 170 of the Customs and Excise Management Act 1979 (penalty for fraudulent evasion of duty etc) in relation to goods prohibited to be imported under section 42 of the Customs Consolidation Act 1876 (indecent or obscene articles).
Taking of Hostages Act 1982 (c. 28)
18 An offence under section 1 of the Taking of Hostages Act 1982 (hostage-taking).
Aviation Security Act 1982 (c. 36)
19 An offence under any of the following provisions of the Aviation Security Act 1982—
• section 1 (hijacking)
• section 2 (destroying, damaging or endangering safety of aircraft)
• section 3 (other acts endangering or likely to endanger safety of aircraft)
• section 4 (offences in relation to certain dangerous articles).
Mental Health Act 1983 (c. 20)
20 An offence under section 127 of the Mental Health Act 1983 (ill-treatment of patients).
Child Abduction Act 1984 (c. 37)
21 An offence under any of the following provisions of the Child Abduction Act 1984—
• section 1 (abduction of child by parent etc)
• section 2 (abduction of child by other persons).
Public Order Act 1986 (c. 64)
22 An offence under any of the following provisions of the Public Order Act 1986—
• section 1 (riot)
• section 2 (violent disorder).
Criminal Justice Act 1988 (c. 33)
23 An offence under section 134 of the Criminal Justice Act 1988 (torture).
Road Traffic Act 1988 (c. 52)
24 An offence under any of the following provisions of the Road Traffic Act 1988—
• section 1 (causing death by dangerous driving)
• section 3A (causing death by careless driving when under the influence of drink or drugs).
Aviation and Maritime Security Act 1990 (c. 31)
25 An offence under any of the following provisions of the Aviation and Maritime Security Act 1990—
• section 1 (endangering safety at aerodromes)
• section 9 (hijacking of ships)
• section 10 (seizing or exercising control of fixed platforms)
• section 11 (destroying fixed platforms or endangering their safety)
• section 12 (other acts endangering or likely to endanger safe navigation)
• section 13 (offences involving threats).
Channel Tunnel (Security) Order 1994 (S.I. 1994/570)
26 An offence under Part 2 of the Channel Tunnel (Security) Order 1994 (SI 1994/570) (offences relating to Channel Tunnel trains and the tunnel system).
Protection from Harassment Act 1997 (c. 40)
27 An offence under any of the following provisions of the Protection from Harassment Act 1997—
• section 4 (putting people in fear of violence)
• section 4A (stalking involving fear of violence or serious alarm or distress).
Crime and Disorder Act 1998 (c. 37)
28 An offence under any of the following provisions of the Crime and Disorder Act 1998—
• section 29 (racially or religiously aggravated assaults)
• section 31(1)(a) or (b) (racially or religiously aggravated offences under section 4 or 4A of the Public Order Act 1986).
Terrorism Act 2000 (c. 11)
29 An offence under any of the following provisions of the Terrorism Act 2000—
• section 54 (weapons training)
• section 56 (directing terrorist organisation)
• section 57 (possession of article for terrorist purposes)
• section 59 (inciting terrorism overseas).
International Criminal Court Act 2001 (c. 17)
30 An offence under any of the following provisions of the International Criminal Court Act 2001—
• section 51 (genocide, crimes against humanity and war crimes)
• section 52 (ancillary conduct).
Anti-terrorism, Crime and Security Act 2001 (c. 24)
31 An offence under any of the following provisions of the Anti-terrorism, Crime and Security Act 2001—
• section 47 (use of nuclear weapons)
• section 50 (assisting or inducing certain weapons-related acts overseas)
• section 113 (use of noxious substance or thing to cause harm or intimidate).
Female Genital Mutilation Act 2003 (c. 31)
32 An offence under any of the following provisions of the Female Genital Mutilation Act 2003—
• section 1 (female genital mutilation)
• section 2 (assisting a girl to mutilate her own genitalia)
• section 3 (assisting a non-UK person to mutilate overseas a girl’s genitalia).
Sexual Offences Act 2003 (c. 42)
33 An offence under any of the following provisions of the Sexual Offences Act 2003—
• section 1 (rape)
• section 2 (assault by penetration)
• section 3 (sexual assault)
• section 4 (causing person to engage in sexual activity without consent)
• section 5 (rape of child under 13)
• section 6 (assault of child under 13 by penetration)
• section 7 (sexual assault of child under 13)
• section 8 (causing or inciting child under 13 to engage in sexual activity)
• section 9 (sexual activity with a child)
• section 10 (causing or inciting a child to engage in sexual activity)
• section 13 (child sex offences committed by children or young persons)
• section 14 (arranging or facilitating commission of child sex offence)
• section 15 (meeting a child following sexual grooming)
• section 16 (abuse of position of trust: sexual activity with a child)
• section 17 (abuse of position of trust: causing or inciting a child to engage in sexual activity)
• section 18 (abuse of position of trust: sexual activity in presence of child)
• section 19 (abuse of position of trust: causing a child to watch a sexual act)
• section 25 (sexual activity with a child family member)
• section 26 (inciting a child family member to engage in sexual activity)
• section 30 (sexual activity with a person with a mental disorder impeding choice)
• section 31 (causing or inciting a person with a mental disorder impeding choice to engage in sexual activity)
• section 32 (engaging in sexual activity in the presence of a person with a mental disorder impeding choice)
• section 33 (causing a person with a mental disorder impeding choice to watch a sexual act)
• section 34 (inducement, threat or deception to procure sexual activity with a person with a mental disorder)
• section 35 (causing a person with a mental disorder to engage in or agree to engage in sexual activity by inducement, threat or deception)
• section 36 (engaging in sexual activity in the presence, procured by inducement, threat or deception, of a person with a mental disorder)
• section 37 (causing a person with a mental disorder to watch a sexual act by inducement, threat or deception)
• section 38 (care workers: sexual activity with a person with a mental disorder)
• section 39 (care workers: causing or inciting sexual activity)
• section 40 (care workers: sexual activity in the presence of a person with a mental disorder)
• section 41 (care workers: causing a person with a mental disorder to watch a sexual act)
• section 47 (paying for sexual services of a child)
• section 48 (causing or inciting child prostitution or pornography)
• section 49 (controlling a child prostitute or a child involved in pornography
• section 50 (arranging or facilitating child prostitution or pornography)
• section 61 (administering a substance with intent)
• section 62 (committing offence with intent to commit sexual offence)
• section 63 (trespass with intent to commit sexual offence)
• section 64 (sex with an adult relative: penetration)
• section 65 (sex with an adult relative: consenting to penetration)
• section 66 (exposure)
• section 67 (voyeurism)
• section 70 (sexual penetration of a corpse).
Domestic Violence, Crime and Victims Act 2004 (c. 28)
34 An offence under section 5 of the Domestic Violence, Crime and Victims Act 2004 (causing or allowing a child or vulnerable adult to die or suffer serious physical harm).
Terrorism Act 2006 (c. 11)
35 An offence under any of the following provisions of the Terrorism Act 2006—
• section 5 (preparation of terrorist acts)
• section 6 (training for terrorism)
• section 9 (making or possession of radioactive device or material)
• section 10 (use of radioactive device or material for terrorist purposes)
• section 11 (terrorist threats relating to radioactive devices etc).
Modern Slavery Act 2015 (c. 30)
36 An offence under any of the following provisions of the Modern Slavery Act 2015—
• section 1 (slavery, servitude and forced or compulsory labour)
• section 2 (human trafficking).
Ancillary offences
37 (1) An offence of attempting or conspiring to commit an offence listed in this Schedule.
(2) An offence committed by aiding, abetting, counselling or procuring an offence listed in this Schedule.
(3) An offence under Part 2 of the Serious Crime Act 2007 (encouraging or assisting) where the offence (or one of the offences) which the person in question intends or believes would be committed is an offence listed in this Schedule.
Jess Phillips
Over six years ago, in 2017, the then Home Office Minister for Crime, Safeguarding and Vulnerability said:
“There needs to be a root and branch review of how women are treated in the criminal justice system when they themselves are victims of abuse”.
However, no such review has ever taken place, and the criminal law still fails to protect those who experience abuse that drives them to offend. We all know that it does that and there has been endless evidence over many years; the Corston report, now decades old, still stands. While householders have legal protection when they act in self-defence against an intruder, no such protection is available to victims—survivors—acting in self-defence against their abuser.
New clauses 31 and 32 would introduce two measures to address that: a new statutory defence for those who are coerced into offending, and an amendment to the law on self-defence for those who use force against their abuser. Common law defences are outdated and ill-fitting to the context of domestic abuse, leaving survivors with no effective defence. These amendments would modernise the law and reflect improved public understanding of domestic abuse. They are based on legal precedents in place to protect other groups and are not gender-specific. They would address gaps in legal protection for survivors, strengthen recognition of the links between victimisation and offending, and deter inappropriate prosecutions. These reforms should be accompanied by a cross-Government policy framework to aid implementation. We propose that the two new clauses and new schedule 2 be added to the Bill.
New clause 31 amends the law on self-defence and is modelled on the provisions for householders in section 76 of the Criminal Justice and Immigration Act 2008. There are Acts that seem to be about two completely separate things put together; it is good to see that Labour Governments did that as well! The clause would allow survivors acting in self-defence against their abusers the same protection as householders defending themselves against an intruder. In the case of a householder using force against an intruder, section 76(5A) of the 2008 Act provides that the degree of force used by said householder
“is not to be regarded as having been reasonable…if it was grossly disproportionate”.
A householder can therefore use force that is dispro-portionate, but not grossly disproportionate, provided that the degree of force was reasonable. It is outrageous to deny equivalent protection to women who are victims of domestic abuse defending themselves against someone who has raped, tortured, abused and attacked them. As Nicola Wake has argued, that disparity in protection is impossible to justify.
New clause 32 and new schedule 2 introduce statutory defences for survivors modelled on section 45 of the Modern Slavery Act. They would give survivors of domestic abuse similar protections to victims of human trafficking who are compelled to offend. A case study from the Centre for Women’s Justice makes the need for that clear:
“YS is charged with driving whilst disqualified, driving with excess alcohol, driving without insurance and dangerous driving. An officer noticed a vehicle with its brake lights permanently illuminated and swerving from side to side. He activated the siren, indicating for the vehicle to stop. The vehicle did not stop, and a chase continued for five minutes. In the driving seat was a woman, YS.
YS explained she had been dragged from her home partially dressed by her partner, forced to drive, and that he threatened to kill her if she did not drive on. The partner was screaming at her throughout, punching her in the ribs and trying to grab the steering wheel.
The police stop this vehicle and YS is prosecuted. Despite running duress and despite her being viewed as credible, she is convicted. Her conviction was upheld on appeal to the High Court.”
Duress was brought up earlier, and I got some points in the break on the defence of duress from some lawyers who have run these cases. As demonstrated by that case study, the defence of duress in these cases is inadequate. For example, the duress defence emphasises the threat of death or serious injury and ignores complexities of DA: a barrister I spoke to in the break said, “Basically, the reason duress doesn’t work is because it doesn’t work. You have to basically prove you had a gun to your head in the moment.” It does not recognise sexual, financial or psychological abuse. It also fails to recognise the nature of domestic abuse, because for the defence of duress to succeed, the threat of physical harm must be imminent—it has to be a gun to your head. The proposed statutory defence is closely modelled on section 45 of the Modern Slavery Act 2015, which provides a defence for victims of trafficking who offend as part of, or due to, their experience of modern slavery or trafficking. The same protections should be offered to victims of domestic abuse.
Alex Cunningham
I will be brief, because my hon. Friend’s contribution was very thorough. The explanatory statements make it clear that the aim of these new clauses would speak to the agenda of the House in relation to ending violence against women and girls while ensuring that they get the protection of the law. There is no doubt that the development of such defences in law is far from easy—in fact, it is extremely complicated, as was illustrated—but it is important that we get it right. Labour is determined that women and girls are protected from violence. The work done by my colleagues will help to ensure that we as a society do better in that regard.
No one can doubt that women can be driven to defend themselves when subject to controlling behaviour and domestic abuse, and they can then face prosecution for their actions. Similarly, the controller can drive them to commit other crimes for the benefit of that controller. It can be well argued in both cases that those women are not responsible for their own actions. I am interested in what the Minister will say and how she will address such things to ensure that the victim is not turned into a criminal.
Laura Farris
I thank the hon. Member for Birmingham, Yardley for tabling new clauses 31 and 32 and new schedule 2, which would create two new statutory defences for victims of domestic abuse. She mentioned the defence of self-defence, which is not available to householders only; self-defence is a complete defence available to anyone put in a situation where they are required to engage it. I make that point in passing.
The Committee is aware of the work that the Government have done on domestic abuse, so I will confine my remarks to our most recent work, which has focused on the issues set out in the hon. Member’s new clauses and new schedule. First, she is aware that we commissioned a domestic homicide review—undertaken by Clare Wade KC, who has given evidence to the Committee—which was the first from any Government to look at homicide in a domestic context. As part of that exercise, we invited Clare Wade to look at the law on domestic abuse defences. She did not have time to do so then, but she recommended that a further review should be undertaken. At the end of 2023, we commissioned that review by the Law Commission to look specifically at women driven to kill their abusive partners and the defences available to them, and to consider specifically whether legislative change was necessary. The review is due to conclude later this year—I understand by the summer.
I hope to reassure the hon. Member by reading out a few sections—I will only read short sections—of the review’s terms of reference, which I believe dovetail neatly with the points she has made in her new clauses and new schedule. Those terms of reference state:
“Most deaths that occur in the context of domestic abuse involve male abusers who kill their female victims. A much smaller number of (almost entirely female) victims of domestic abuse kill their (almost entirely male) abusers…Despite reforms to the partial defences of provocation (now loss of control) and diminished responsibility, concerns continue to be raised that the existing defences to murder and their application in the courts do not achieve just outcomes for this group of victims of domestic abuse who become defendants.”
It continues:
“The Law Commission will review the use of defences in domestic homicide cases in the light of modern understandings of the effects of domestic abuse on victims. The project will consider, but is not limited to, the following:
(1) whether the existing defences to murder, and arguments as to lack of requisite intent for murder, operate satisfactorily in the context of a defendant who has suffered domestic abuse;
(2) if not, whether reform of the existing defences or a new bespoke defence or defences are needed for the group identified…while ensuring that reformed or new defences are appropriately limited…
(3) the operation of the applicable rules of evidence, procedure, and ways that the defences are considered from the beginning of the police investigation up to and including at trial, in this context”.
Jess Phillips
I recognise all that good work, and I was pleased to see that, but that is specifically about murder and killing, not offending per se, which is what I was talking about. The Law Commission will not come back to the example I gave, with duress defences being used. I was talking about magistrates court cases, where medical evidence of domestic abuse needs to be produced to get a duress defence.
Laura Farris
The hon. Member is correct. I will come on to the other parts but I am starting with the most serious category of offences; I think there has been a particular concern in the law about whether they are adequately dealt with. However, I hope she will understand why we are keen to see the Law Commission’s review through to its conclusion, although we are sympathetic to the general aims.
Jess Phillips
Is the Minister still talking about murder? I am not denying that it would be taken into account in murder, but it would not be taken into account in theft or the car incidences. It would not be taken into account like any offence would be for a victim of modern slavery. I am not talking about murder; I recognise the environment for that.
Laura Farris
Well, I have made the point. I was addressing new clause 31. The householder defence is really a homicide defence; those were the circumstances in which it came up, which is why I made those remarks.
New clause 32 and new schedule 2 seek to create a new and specific statutory defence for victims of domestic abuse who commit an offence. The first version provides a defence where a person aged 18 or over does an act because they are compelled to do so as a result of the fact that they are a victim of domestic abuse, and a reasonable person in the same situation as that person, with the same relevant characteristics, would have no realistic alternative to doing that act. The second version applies to persons under 18, and provides a defence where a person acts as a direct consequence of being, or having been, a victim of domestic abuse. New schedule 2 sets out the offences to which that proposed defence would not be available.
I am sympathetic to the thrust of this new clause, particularly because of the correlation between domestic abuse and women who find themselves in the prison system. I know that the Prison Reform Trust, in conjunction with the Centre for Women’s Justice, has done really important work on this issue.
I will respond to the hon. Member for Birmingham, Yardley about the case that she mentioned. She called it “JS”, but I think it is fair to use its title, because it is in the public domain: Stevens v. The Director of Public Prosecutions. She was quite right to outline the facts of the lady concerned, who said that she had found herself behind the wheel of a car, she was in her pyjamas and her other half was next to her; I think he had cocaine in his system. There was a background of coercive control. However, it is also true to say that her defence failed not only at first instance but on appeal, and I will just tell the Committee why, because I was troubled by the case and I wanted to see what factors the Court had considered.
The woman was driving dangerously at the time. However, she had already been disqualified from driving and she purchased the car when she was disqualified from driving. She conceded that she had driven it unlawfully a number of times before, with or without her husband. I am simply going through the factors. These are the factors that the Court of Appeal—the High Court, I think it was—had considered.
The jury took into consideration the fact that the woman did not tell the police at the time, or even in the police station, that she was under duress; she had also called her mum and had not mentioned being under duress. She had also—
Jess Phillips
I am afraid all the Minister is doing is identifying that this change is needed. So that woman did not tell her mother what her cocaine-fuelled partner, who her mother probably hated, was doing to her? Her mother has probably been isolated from seeing her daughter. She did not tell her mother? Has the Minister told her mother about every terrible thing that has ever happened to her? This is all just based on absolute myth and stereotype.
Laura Farris
I am simply going through how the higher court approached it. The point is that the Court found that the jury had not been persuaded that this was a duress case; duress was advanced as a defence, but that defence was not accepted. That is the nature of the system. So, it was not a case that the arguments were ignored; it was that she was not believed.
Laura Farris
Before I do, may I say that I am not asserting my own view, but I did bother to read the case, because I thought it was a difficult case? And I think that it is probably difficult in Committee for MPs to weigh in to whether the appeal courts are right or wrong. The Court’s conclusion was that she had not made out her case; that was its conclusion. That is not my view; it is a fact.
Jess Phillips
It may very well be a “fact” that that woman was not successful in getting the defence of duress. In different circumstances, would she have been able to get the defence that I am talking about today? That would be easier to prove, because cases of duress require relevant characteristics to be established, including “battered woman syndrome” and “learned helplessness”. Those are outdated concepts, which pathologise women rather than offering an effective defence suitable for the actual circumstances. These concepts require a production of medical evidence—I do not have that for coercive control. That is not practicable and in many cases involves low-level offending tried in magistrates courts.
Laura Farris
I thank the hon. Member for her intervention, which leads into the point I wanted to address in her new clause. Subsection (3)(b) of new clause 32 says that the criminal offence must be:
“a direct consequence of a person being, or having been, a victim of such abuse.”
My point is that whatever we make of this case, that woman did not prove causation; the jury was not satisfied that there was causation. And that would still be the case even under the new clause, as drafted. Someone would have to prove a causal connection between domestic abuse and the criminal offence that took place.
So, while we are interested in this area of the law, at the moment it is difficult to see how the new clause changes the defences of duress or self-defence, which already exist in common law.
Jess Phillips
I will just quote the Minister to herself. Earlier, when we were discussing spiking, she said that it was all too well and easy to say, “This already exists. We shouldn’t do anything about it.” I am just quoting her back at herself. These defences already exist.
Laura Farris
I am simply making a point about causation. The hon. Member has put a causal measure into her new clause and she raised a case, and I am simply saying that it was the conclusion of the jury in that case that causation was not established. I cannot go behind that finding, because we have an independent court system.
Laura Farris
That has assisted there.
A new statutory defence would also be restrictive in how it is framed and, unlike the common law defence, is less able to respond to the changing nature of forms of domestic abuse. We have seen how in recent years the courts have recognised the development of certain forms of domestic abuse, such as controlling and coercive behaviour, and have been able to weigh that into the application of certain defences in law.
I am interested in this area of the law; I just do not think the new clause is right yet. It is very wide and could provide a full defence to any criminal act, save for those offences listed in schedule 2, without considering the range of seriousness. I recognise that the list of behaviours in schedule 2 is based on the modern slavery defence, but the behaviours covered by that statutory defence are much narrower than those in the Bill, and they apply only where the pressure on the defendant would amount to an offence under the Modern Slavery Act 2015.
To conclude, the Government do not agree at present that the measures proposed by new clauses 31 or 32 are necessary, and I ask the hon. Member for Birmingham, Yardley not to press them.
Jess Phillips
I will just read the first bit of my speech again and then sit down, because we have to get through proceedings today. More than six years ago, in 2017, the Home Office Minister for Crime, Safeguarding and Vulnerability said there needed to be
“a root and branch review of how women are treated in the criminal justice system”.
I will welcome it when it eventually comes. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 39
Requirement for specialist rape and serious sexual offence teams
(1) The chief officer of each police force in England and Wales must establish a specialist team for the investigation of rape and serious sexual offences within the relevant force area.
(2) The chief officer must provide for members of the specialist team to be provided with such training and guidance on the investigation of rape and serious sexual offences as the chief officer sees fit.
(3) Any chief officer who fails to establish a specialist team must produce and publish a report to the Secretary of State outlining–
(a) the reasons for the chief officer’s decision not to establish a specialist team;
(b) how rape and serious sexual offences are to be investigated in the absence of a specialist team;
(c) what training and guidance is given to officers on the investigation of rape and serious sexual offences.”—(Alex Norris.)
Brought up, and read the First time.
Alex Norris
I beg to move, That the clause be read a Second time.
It is a pleasure, Sir Graham, to serve with you in the Chair on this final afternoon in Committee. We did not want to miss this opportunity, as any criminal justice legislation is an opportunity to try to improve our dreadfully bad outcomes as they pertain to rape. According to Rape Crisis, there were 68,109 rapes between July 2022 and June 2023. By the end of that 12-month period, charges had been brought in 2.2% of those cases, so that is two out of every 100 resulting in someone being charged. That is just the ones that are reported, with five in six women and four in five men who are raped not reporting.
In the courts, we see trials delayed for years and a staggering 70% of survivors dropping out of the system altogether. Of that 2.2% charge rate, the number of convictions is just a fraction of an already dreadfully low figure. New clause 39 seeks to establish specialist rape and serious sexual offence teams in every police force by making that a requirement. Those teams would have to be provided with proper training and guidance.
If a chief officer of a police force or the Minister had concerns that such a measure fettered operational independence, the new clause hopefully offers a workaround on that. If a chief officer of a police force does not establish such teams, they will be required to publish a report to the Secretary of State outlining the reason, how rape and sexual offences are to be investigated and what training and guidance will be given to officers investigating such cases.
These specialist investigation units will be allowed to use tactics normally reserved for organised crime or terrorist investigations to identify and go after the most dangerous repeat abusers and rapists and get them off our streets. That is not just something that we are pushing forward; it is also a recommendation of the Home Affairs Committee. I am pleased to have the support of its Chair, my right hon. Friend the Member for Kingston upon Hull North (Dame Diana Johnson). The evidence points to specialist teams being effective at investigating such serious crimes, and those forces that do have units already know how well they are performing. Clearly, this should be rolled out so that every victim, no matter where they are in the country, can have their case investigated properly with a view to securing a charge and a conviction.
Jess Phillips
I beg to move, That the clause be read a Second time.
I did not know until moments ago, when the Minister was speaking, that we were allowed props. My phone is not a prop, but I inherited the moving of this motion about an hour ago and the prop I have is some messages that the hon. Member for Bishop Auckland (Dehenna Davison) has sent me. I signed her new clause 50 mainly because of many years of listening to her speak very compellingly about her experience as the daughter of a victim of a single-punch death. Essentially, what she has asked me to put on the record today is that the average sentence for deaths in such cases is currently only about four years, and recent sentences have been as low as two years. That is a massive kick in the teeth for the families of victims.
New clause 50 would raise the minimum sentence to seven years, although no sentence will ever feel enough —these are the hon. Member’s words, not mine. Crucially, it would also create an offence category, to help with reporting. As things stand, we do not have concrete information on how often these deaths happen and what sentences are passed. With the new clause, we are looking for clarity, but also deterrence and a sense that the sentences are commensurate with the harm caused in these cases. I shall say no more at this stage.
Vicky Ford (Chelmsford) (Con)
I, too, have spoken to my hon. Friend the Member for Bishop Auckland. I apologise that I did not sign the new clause; I wish I had.
There is clearly a gap in the criminal justice system, because so often the perpetrators of one-punch assaults are handed unduly lenient sentences that do not provide the sense of justice that victims’ families seek and that members of the public expect. That is why my hon. Friend tabled new clause 50, which has been signed by many other hon. Members. It would make one-punch manslaughter a specific offence, attracting a minimum sentence of seven years, and would ensure that these crimes are reported in a consistent way.
Laura Farris
I pay tribute to my hon. Friend the Member for Bishop Auckland, who has been such an effective campaigner on this deeply personal offence that completely devastated her young life. She has made sure that it is seen not as a minimal offence or a nasty accident, but as the most serious form of assault. I know that she has been engaging with the Lord Chancellor, and I do not want to pre-empt those conversations. I was due to meet her this week; she was unwell, but we will still do so, and there is a process of discussion.
I want to say a little about new clause 50, and about one or two of the concerns that we have at this point. One-punch manslaughter is already a form of unlawful act—manslaughter—and it closely overlaps with that offence. The new clause closely reflects the existing law, but the common-law offence of unlawful act manslaughter has a maximum penalty of life imprisonment.
The new clause has two elements that differ from unlawful act manslaughter, meaning in practice that it would apply only to a small number of cases. First, the unlawful act set out in the new clause requires
“a single punch to the head or neck”.
Secondly, whereas unlawful act manslaughter requires that a reasonable person would have understood that the act posed some risk of harm, the new clause requires a “significant risk” of harm. In other words, it is setting a higher evidential threshold for what the perpetrator knew than the current principles of manslaughter. We would not wish to create an offence that made it harder to get a conviction rather than easier, as is currently the case with manslaughter.
We make similar observations in relation to GBH. Murder can be charged in two circumstances: where there was an intention to kill, or where there was an intent by the perpetrator to cause serious harm to the level of GBH. An intent to kill is not usually present in one-punch cases, but an intent to cause serious harm to the level of GBH may be present. That is called the GBH rule, and in some ways it overlaps with the specific circumstances described in the new clause. There is therefore a risk that people who could be charged with murder would deviate to pleading guilty to the lesser offence because they think that they would get less time. We want to avoid that.
I had another point to make in passing about the Australian system—I cannot lay my hand on my note, but I was going to say that it results in lower sentences than what is suggested here, so it is not a perfect read-across.
The Government’s other concern, as nobody on this Committee will be surprised to hear, is about the new clause setting a minimum sentence. We do not wish to create anomalies in the law. How would the family of a victim who was killed by a single punch to the abdomen feel if the minimum sentence did not apply? How would the family of a victim who was killed by two punches to the head feel if their case was treated differently?
As the Committee has seen over the course of our debates, minimum sentences sometimes create difficulties in the law on homicide and irregularities in sentencing. When we extrapolate those to certain circumstances, some of which we probably cannot even imagine as we sit here today, they could cause irregularities further down the line. None of that is fatal to the new clause, by way; it simply informs our thinking and our nervousness with the minimum-sentence suggestion at the moment.
We appreciate, without any reservation, the very serious harm that the new clause targets. We want to see laws and sentencing powers that are flexible enough to deal with different levels of culpability. We would not wish for more people either to get away with it because the intent could not be proved or to use this new offence as an alternative to murder.
We are thinking hard about it, and we wish to maintain consistency in the law. At the same time, we recognise the harm that is caused by this offending. We recognise the seriousness of it, and we recognise the importance of the campaign that my hon. Friend the Member for Bishop Auckland has presented to the House. I ask the hon. Member for Birmingham, Yardley to withdraw the new clause at this point, but we are continuing conversations with my hon. Friend.
Jess Phillips
The hon. Member for Bishop Auckland did not ask me to press new clause 50. However, I can see from looking through the list of supporters that she has managed to unite me and the hon. Member for Ashfield (Lee Anderson)—she may be the only person ever to have managed that. I hope he doesn’t take my ribbing too seriously and change his vote on something.
The hon. Member for Bishop Auckland tells me that the Minister and the Secretary of State have both been engaging with her and that she wishes to continue that engagement, so I imagine that these issues will arise again on Report or even in the Lords. I will not press the new clause to a vote today, but the hon. Member for Bishop Auckland is young, bright and short and is determined to see some action on the issue before she leaves this place. Who could blame her, considering her experiences? I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 51
Aggravated offences: hostility towards transgender identity, sexual orientation and disability
“(1) The Crime and Disorder Act 1998 is amended as follows.
(2) For the first cross-heading under Part II, substitute ‘Offences aggravated on the grounds of race, religion, disability, sexual orientation or transgender identity: England and Wales’.
(3) In section 28—
(a) for the heading, substitute ‘Meaning of “aggravated on the grounds of race, religion, disability, sexual orientation or transgender identity”’;
(b) in subsection (1), omit ‘racially or religiously aggravated’ and insert ‘aggravated on the grounds of race, religion, disability, sexual orientation or transgender identity’;
(c) in subsection (1)(a), omit from ‘based on’ to the end of sub-subsection (a) and insert—
‘—
(i) the victim’s membership (or presumed membership) of a racial group;
(ii) the victim’s membership (or presumed membership) of a religious group;
(iii) a disability (or presumed disability) of the victim;
(iv) the sexual orientation (or presumed sexual orientation) of the victim; or
(v) the victim being (or being presumed to be) transgender, or’;
(d) in subsection (1)(b), omit from ‘hostility towards’ to the end of sub-subsection (b) and insert—
‘—
(i) members of a racial group based on their membership of that group;
(ii) members of a religious group based on their membership of that group;
(iii) persons who have a disability or a particular disability;
(iv) persons who are of a particular sexual orientation; or
(v) persons who are transgender.’;
(e) in subsection (2), in the definition of ‘membership’ leave out ‘racial or religious’ and insert ‘relevant’.
(4) In section 29—
(a) for the heading, substitute ‘Assaults aggravated on grounds of race, religion, disability, sexual orientation or transgender identity’;
(b) in subsection (1), omit ‘racially or religiously aggravated’ and insert ‘aggravated on the grounds of race, religion, disability, sexual orientation or transgender identity’.
(5) In section 30—
(a) for the heading, substitute ‘Criminal damage aggravated on the grounds of race, religion, disability, sexual orientation or transgender identity’;
(b) in subsection (1), omit ‘racially or religiously aggravated” and insert ‘aggravated on the grounds of race, religion, disability, sexual orientation or transgender identity’.
(6) In section 31—
(a) for the heading, substitute ‘Public order offences aggravated on the grounds of race, religion, disability, sexual orientation or transgender identity’;
(b) in subsection (1), omit ‘racially or religiously aggravated’ and insert ‘aggravated on the grounds of race, religion, disability, sexual orientation or transgender identity’.
(7) In section 32—
(a) for the heading, substitute ‘Harassment etc aggravated on the grounds of race, religion, disability, sexual orientation or transgender identity’;
(b) in subsection (1), omit ‘racially or religiously aggravated’ and insert ‘aggravated on the grounds of race, religion, disability, sexual orientation or transgender identity’.”—(Alex Cunningham.)
This new clause would include offences motivated by hostility towards an individual’s disability status, sexual orientation or transgender identity (or perception thereof) in those which are aggravated under the Crime and Disorder Act 1998.
Brought up, and read the First time.
Alex Cunningham
I beg to move, That the clause be read a Second time.
New clause 51 would address the disparity between existing characteristics and current hate crime legislation. It would create parity for maximum possible penalties for all five characteristics defined under the sentencing code. Under current hate crime legislation, hate crimes based on race and/or religion can have higher maximum penalties than their base equivalents, whereas hate crimes based on sexual orientation, transgender identity and/or disability cannot. This creates a two-tier system of justice.
There are precedents for expanding the characteristics covered by aggravated offences. The Crime and Disorder Act 1998 originally defined only racially aggravated offences; this was amended in the Anti-terrorism, Crime and Security Act 2001 to include religiously aggravated offences. In December 2021, the Law Commission published “Hate crime laws: Final report”, a comprehensive review of all hate crime legislation. Its conclusion was:
“We remain of the view that we expressed in our 2014 report that the current hierarchy of protection is unfair and sends a distinctly negative message to victims of hate crimes on the basis of disability, sexual orientation and transgender identity. We therefore recommend parity of protection for aggravated offences across all five characteristics.”
It also stated:
“There was very strong support for a consistent approach amongst organisational stakeholders…For example, The Bar Council simply said…‘There would not appear to be any good reason to withhold parity of protection across the range of protected characteristics.’”
Does the Minister agree with the Law Commission’s recommendation that offences motivated by hostility towards an individual’s disability status, sexual orientation or transgender identity should be encompassed within the aggravated offences under the Crime and Disorder Act 1998?
New clause 51 comes in the context of soaring levels of hate crime reporting. Over 145,000 cases were reported in 2022-23. Across all monitored strands of hate crime, the numbers of offences have soared since 2011-12. Racially motivated hate crime rose by over 200% in the period, topping 100,000 instances for the first time in 2021-22. Meanwhile, hate crime motivated by religion increased by 433%. What is wrong with our bloomin’ society? By sexual orientation, it has increased by 493% and, by transgender identity, it has increased by 1,263%. Violent crime or crimes against the person rose as a proportion of hate crime offences from 29% in 2012-13 to 41% in 2022-23. The number of violent hate crime offences has risen sixfold, from 12,739 to 63,895 in 2022.
LGBT+ people and people with a disability should be able to live their life free from fear, abuse or violence. Labour has committed to take back our streets and be tough on hate crime. We will do so by strengthening and equalising the law so that every category of hate crime is treated as an aggravated offence, to ensure that everyone who falls victim to a hate crime is treated equally under the law. I hope that the Government will support new clause 51.
Jess Phillips
Main Page: Jess Phillips (Labour - Birmingham Yardley)Department Debates - View all Jess Phillips's debates with the Home Office
Criminal Justice Bill
Jess Phillips ExcerptsWednesday 15th May 2024
(2 years, 3 months ago)
Commons ChamberRead Full debate Criminal Justice Bill 2023-24 Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: Consideration of Bill Amendments as at 15 May 2024 - (15 May 2024)
Laura Farris
I want to be crystal clear that, under the new clause, the offence is committed if the pseudo-image is created without the consent of the person who is the subject. That is at subsections 1(c) and 2(c) of proposed new section 66AD.
Let me talk for a moment about intent. The new clause differs from some of the content in the Online Safety Act 2023. It does not relate to intimate images, such as a person wearing a swimsuit, but applies to sexually explicit images, which are defined in legislation. It requires not only that the image is sexually explicit and is created without the consent of the subject matter, but that it is done for the purposes of sexual gratification or with the intent of causing humiliation, alarm or distress. I gently say that a similar measure was debated in the Bill Committee. I think it was tabled by the hon. Member for Nottingham North (Alex Norris), and he will recognise that the intent of the provisions that the Government have adopted is the same as the Opposition’s.
I am aware of what my right hon. Friend the Member for Basingstoke is saying about the base events. Perhaps I can allay her concerns by simply saying this: it is a novel new measure for any Government to take. She makes sensible and compelling arguments on this point, and I hope she will feel reassured if we take an iterative approach for the time being. She will recall that the Law Commission recommended that we did not introduce legislation at all, and I will come on to say a little about that. It is right to say that other countries are looking at us carefully. The Justice Secretary was at the G7 in Venice just last weekend, and other G7 Justice Ministers had noticed that we are making this change and were observing carefully. We are making this change because we recognise the inherent risk posed by these images and that the offence is overwhelmingly targeted at women, predicated on an absence of consent. As such, we consider it a gateway to more serious offending.
We make some points by way of clarification. We carefully considered the Law Commission’s recommendations in its excellent report on intimate image abuse, which has informed much of our recent work, although respectfully on this, we have diverged from its point of view. In response to some of its concerns, I would like to reassure the House. We recognise that the amendment could criminalise young people, particularly teenage boys. To reduce the risk of over-criminalisation, we believe that we have set pragmatic parameters. Creation alone will be a non-imprisonable offence, although it will incur a potentially unlimited fine. The offence of creation alone would not attract notification requirements, meaning that the offender will not be placed on the sex offenders register. As hon. Members will know, all of that changes if the image is shared. Victims of that offence will be entitled to automatic anonymity in line with all the other sexual offences and they will also be eligible for special measures at trial. We are delighted to see major deepfake websites withdraw from the United Kingdom and we encourage the others to follow their lead.
I turn to Government new clause 87, which introduces a statutory aggravating factor for manslaughter involving sexual conduct. The clause corresponds to, and potentially should be read in conjunction with, section 71 of the Domestic Abuse Act 2021, which says that it is not a defence to argue that a victim consented to the infliction of serious harm for the purpose of sexual gratification.
We have long held concerns about killing of this nature where, by definition, the victim cannot give an account of consent, yet on occasions the court has implicitly sought to categorise the killing as a consequence of sexual choice, as opposed to the consequence of the development of social norms based on structural inequality. We invited the eminent criminal barrister Clare Wade KC to consider the issue specifically in her domestic homicide review last year. She said that cases of this nature must be viewed through the prism of coercive control and that
“the policy underpinning law ought to consider the wider harms which emanate from the behaviour which can and does lead to this category of homicide.”
We agree, and we are increasing the punishment for degrading and abusive conduct of this nature. Following careful consultation with the Sentencing Council, we are tabling a statutory aggravating factor so that sentences for manslaughter involving sexual conduct must be more severe. It will cover all cases where the act is directly attributable to sexual conduct.
I want to provide the hon. Member for Birmingham, Yardley (Jess Phillips) with one point of reassurance. She will know from all her work, and particularly the research conducted by We Can’t Consent To This and the team, that of all these homicides almost 60% are strangulation cases. I know that that is not the point that she wishes to make with her amendment, but there is some overlap.
On parental responsibility, as hon. Members will be aware, the Government have already amended the Children Act 1989 via the Victims and Prisoners Bill to provide for the automatic suspension of parental responsibility in cases where one parent kills the other. We are making an amendment to develop the law further, providing that, where a father is convicted of child rape, parental responsibility that he may have for any child will be automatically suspended.
I pay tribute to the right hon. and learned Member for Camberwell and Peckham (Ms Harman)—I think that she is in the wars at the moment—for the way in which she has presented this issue. She has advanced the compelling argument that we have long-established principles to protect children from sex offenders by placing people on the sex offenders register and protecting them from working with children, but while we have measures to protect other people’s children, the same protection does not exist for the children of the offender unless the mother goes to the family court to remove his rights.
I also pay tribute to Sanchia Berg, the journalist who revealed this issue through her work and highlighted the practical obstacles that some mothers had faced in making this application, as well as other families who have talked about their experience, including via their Member of Parliament, one example being my hon. Friend the Member for Meriden (Saqib Bhatti); I am not sure if he is in his place.
The father will still be able to apply to the family court to have the suspension of his parental responsibility lifted, but it is obviously fair to assume that, if he has been convicted of child rape, such an application is unlikely to succeed. We have also included a clear requirement for this measure to be reviewed after it has been in place for three years.
Jess Phillips (Birmingham, Yardley) (Lab)
It is a pleasure to see in the Public Gallery some of the families who have championed this issue in the west midlands. Am I right in thinking—I really hope that I am not—that this measure covers only those convicted of the rape of a child, not other sexual offences against a child and a child aged 13 or over?
Laura Farris
The hon. Member is correct. I simply want to say again that this is a novel power that we are extending to Crown court judges, who typically do not have any knowledge of family law matters or a family law background. Once again, we think it is right that we take an iterative approach. There was a dialogue between the Mother of the House and the Lord Chancellor on this point, and she agreed with the approach. I do not want to put words in her mouth, and I am keenly aware of her absence when she should be speaking to her new clause, but I believe that she is satisfied with where we have got to. I commend the new clause and urge all colleagues to give it their support.
I turn next to new clauses 94 and 95 and new schedule 4. I commend my right hon. Friend the Member for Chingford and Woodford Green (Sir Iain Duncan Smith) for his excellent campaign and dedication to crafting a new offence. I must also mention my hon. Friends the Members for Eastbourne (Caroline Ansell) and for Hertford and Stortford (Julie Marson), who also came to see me and made a really compelling argument.
Madam Deputy Speaker (Dame Rosie Winterton)
I will call Members whose amendments have been selected for separate decision first. I call Jess Phillips.
Jess Phillips
I was not expecting it to be me—thank you, Madam Deputy Speaker. I have tabled amendments. I am sure everybody in this House will be delighted to hear that I will not be pushing all of them to a vote, because we could be here all night if I did.
Many people have put in a great amount of work, including the previous speaker, the hon. Member for Bishop Auckland (Dehenna Davison). I wonder whether, in her summing up, the Minister could give us some idea of whether the Bill will ever make it on to the statute book, because we are all working hard to put things into law, but we potentially have just 12 weeks left in this place, and it is a pretty long Bill to get through the Lords. I am worried about progress being stalled and about whether we are wasting our breath, but here I am and I will waste mine.
New clause 44, which stands in my name, seeks to replace the term “controlling prostitution for gain” with “sexual exploitation of an adult”, and to provide a definition of adult exploitation in the Sexual Offences Act 2003. In 2015, a significant change was made through the Serious Crime Act, whereby “controlling a child prostitute or a child involved in pornography” was replaced with the term “sexual exploitation of a child”.
Children who were once labelled prostitutes are recognised as being children who have been groomed and abused, and who are in desperate need of support. Unfortunately, no such change occurred for adult victims of sexual exploitation. I noted the earlier conversation on the issue of cuckooing, and the importance of understanding that a person can be groomed and coerced. The people who rent or own properties in that circumstance would be adults, so we do recognise that adults can be groomed; it just is not reflected in our laws. In fact, new clause 47, which also stands in my name, talks about that as well.
Sexual exploitation occurs when individuals or a group take advantage of an imbalance of power to coerce, manipulate or deceive a person into sexual activity. That is often done in exchange for something that the victim needs or wants, and it will disproportionately benefit the perpetrator. The impact on lives is devastating.
One case study from the STAGE group highlights the sudden change in perception of sexual exploitation as a person reaches adulthood:
“Meena was 15 when she was introduced to her perpetrator. He began…supplying her with alcohol and drugs to the point she developed a dependency on alcohol. He used her fear around shame as a form of control to ensure she did not speak out about the abuse he would subject her to. Between the age of 15-18 Meena was seen as a victim of CSE and professionals did all they could to safeguard her. At 18 the exploitation was continuing. However, since moving into adult services the police and adult social care have questioned whether Meena was just making unwise choices and whether she was getting something out of these exchanges… Meena had a missing episode. She was located following a sexual assault. However, the responding police officer informed”
her support worker
“that this experience cannot be sexual exploitation because Meena is over 18.”
The lack of a legal definition and the continuing label of sexual exploitation of adults as “controlling prostitution for gain” has led to the continued abuse of countless women like Meena and to the lack of response from safeguarding agencies. New clause 44 would play a vital role in changing the perception of adult victims of exploitation. As I have said, new clause 47 would make an aggravating factor of the grooming in these cases—adult cases—just as we do in cases of childhood sexual exploitation.
Since 2019, the STAGE partnership against adult sexual exploitation, which I declare I am the chair of, has supported over 700 adult women who have experienced grooming, and that is just in the north-east and Yorkshire. STAGE’s work has confirmed that grooming is a common technique used to manipulate people for sexual exploitation. There are considerable overlaps in the perpetrators’ behaviour and tactics with those seen in cases of child sexual grooming, and it has a devastating negative impact on people’s ability to consent and make capacitated decisions. It is a deliberate process of limiting the freedoms of a person by gaining control over them and creating dependency. However, for adults who have experienced grooming, it is often reduced to making poor life choices because of the belief that grooming can only happen to children. Adult victims of grooming are repeatedly asked victim-blaming questions such as, “Why did you get back in the car? Why did you stay with them? Why didn’t you leave?”
I do not know if Members of this House have seen the TV programme “Baby Reindeer”, but it is one of the best examples I have ever seen. It is interesting because it is about a man, and I therefore think that, as a nation, we might be more ready to believe it. There is an incident where he goes back to somebody with more power than him, who has a hold over him in his career and is feeding him drugs for dependency. He goes back, but under our current laws he would not be considered to have been groomed. That would not be a mitigating factor in any case that he could take. If he was a child, it would be a mitigating factor—nobody is arguing against that.
Sir Iain Duncan Smith
The hon. Lady is making an important point. All of this comes back to how we view vulnerability, because it displays itself in very different ways. In almost all these cases, there is some base vulnerability, and a drug addict or a person who has been accused of various things realises that, on balance, they had better do what they are told or coerced into. That is the real point, is it not?
Jess Phillips
I absolutely agree, and it can truly happen to anybody—we have seen how people even in this House can be coerced into things. It is dangerous. If there are criminal charges for blackmail, sexual violence or whatever against a person, grooming should be an aggravating factor, regardless of age, on the basis—as the right hon. Gentleman rightly says—of a differential of vulnerability. Until grooming of adults is recognised in legislation, it will continue to be misunderstood by law enforcement and the criminal justice system, and victims will not be adequately protected.
New clause 45 would essentially decriminalise the offence of loitering or soliciting for the purposes of prostitution, and repeal section 1 of the Street Offences Act 1959. Tens of thousands of sex trade survivors who are convicted of that offence endured violence and abuse from punters and pimps, or they were criminalised for offences arising from their exploitation. The exploiters and abusers remained at liberty, continuing to offend, while we criminalised the victims.
In one case I was told of, a young woman was 15 when she was first exploited into prostitution by a man posing as her boyfriend. He became her pimp, and as well as sexually abusing her himself, he made her sell sex on the street where she often feared for her life. For years she suffered violence and abuse from her pimps and punters, and was regularly arrested by the police while they exchanged friendly greetings with her pimp—that, by the way, is essentially protected under the law in our land at the moment, which needs some heavy review. As a consequence of that history, which dates back to the 1980s, she has 39 convictions for soliciting and loitering, which will remain on her record for life, despite her having exited prostitution more than 30 years ago. She is one of thousands of women who have lived through that experience.
Times have changed. Those in much of street prostitution are now widely understood to be the victims, and they are usually no longer arrested. The new clause would provide the necessary recognition that women convicted of such offences were not criminals. It would ensure that the UK complies with international human rights obligations to women exploited in prostitution, and it would replicate the majority of Council of Europe states that have fully legalised or decriminalised prostitution, or adopted the sex buyer model, which decriminalises only those exploited and not those who profit or benefit from prostitution.
New clause 46, which is connected to new clause 45, would create a mechanism for those who received convictions for loitering and soliciting for the purpose of prostitution to have them disregarded. We have seen quite a push in the House regarding the criminalisation of people from the Post Office and—quite rightly—to have those convictions quashed. I am asking us to consider those young children and very vulnerable women who were criminalised, because that will remain on their criminal records until the survivor reaches the age of 100. It means that women who were convicted continue to be disadvantaged by the mandatory retention of such records, as a result of being historically subject to violence and exploitation. Despite recent changes to the disclosure regime, women are still at risk of those records being disclosed in certain circumstances. In the Post Office drama, one woman could not go into her kid’s school to do a painting session. We are talking about women who have been exploited not being able to go into our kids’ schools.
New clause 48 argues that strangulation should be seen as an aggravating factor in the sentencing of murderers, and the Minister sought to address some of these issues. Working with many families of murdered women, many of them speak to me of the horrors of how their loved one was killed by strangulation. Strangulation is not a weapon. Weapons have different sentencing regimes, and in this instance, a man’s strength is their weapon; he brings a weapon by bringing the strength to strangle and kill somebody. We have gone over the debates and the amazing work of Carole Gould and Julie Devey looking at the differentiation between those who kill a stranger or anyone in the street with a knife getting a 25-year minimum sentence, and someone who kills their wife with a knife in their home getting a 15-year minimum sentence. That is fundamentally wrong. Schedule 21 to the Sentencing Act 2020 needs a massive review, but one thing we could definitely do is put in aggravated factors specifically on strangulation, as Clare Wade suggested.
We debated new clauses 49 and 50 extensively in Committee, and they relate to whether victims of domestic violence deserve defences in the law. I imagine this matter will get an even bigger run-out in the Lords. Many learned Members of the other place very much wish to see these mitigations for cases where women commit crimes as a result of the pattern of abuse they have suffered. I look forward to that being the ongoing debate down there.
We did not debate new clause 93 in Committee, so I will just talk about it. I like it as a policy, because it does not cost anything, which the Minister will be pleased to hear. It calls for the sentencing code to be amended to require judges to consider making compensation orders where there is evidence of economic loss or damage as a result of the offence. I know from my constituents and the charity Surviving Economic Abuse that even when a survivor is lucky enough to have her case reach court and her abuser handed a prison sentence, she has to live with the long-lasting impact of the abuse. Some 5.5 million UK women have had their money and belongings controlled by their current or former partner in the past 12 months. Many economic abuse survivors often end up homeless, destitute and with damaged credit scores that prevent them from rebuilding their life.
While the sentencing code requires judges to consider awarding compensation when making their judgments, in reality they do not. Research by Surviving Economic Abuse looked at successful controlling or coercive behaviour prosecutions that featured economic abuse between 2016 and 2020, and it found that despite evidence of loss and damage caused by the perpetrator, just 2% of cases resulted in the perpetrator being ordered to pay compensation. New clause 93 would help ensure that judges consider whether a compensation order is appropriate in cases of economic abuse.
That is the end of my amendments. However, my right hon. and learned Friend the Member for Camberwell and Peckham (Ms Harman) has had many a mention today. She cannot be here today, but she has asked me to make some remarks on new clause 2 on her behalf. I make them very much on my behalf, too, with one particular question to the Minister. I have already asked her about the age being under 13. If somebody came to me and said that the father of their children had raped a 14-year-old, I do not think they would be particularly happy that they still had to go through the family court process, so I very much hope that when the Minister says this is an iterative process, that will actually be the case. There are still massive safeguarding issues.
New clause 2 would change the law to protect the children of convicted child sex offenders by taking away their father’s parental rights. That would be hugely significant and would lay down that fatherhood is a privilege, not a right and that people will forfeit it if they are a danger to their children. That would be a major change. The patriarchal hangover whereby a father’s rights over a child were sacrosanct will, at long last, give way to the priority of protecting the child.
It has long been recognised that children need protecting from sex offenders. While in the 1990s we brought forward protection for children through the sex offenders register and restrictions on people who have been convicted of serious sexual offences, we did not tackle parental rights and protect the offender’s own children. Somehow, the patriarchal view that a father’s rights over their own children must not be disturbed was a carve-out. Obviously that was wrong, because the rights of the child—not the rights of the father—should be at the forefront.
A recent family court case in Cardiff put a spotlight on that. When the father of Bethan’s daughter was sent to prison for child sexual abuse, Bethan was horrified to discover that, despite being in prison, he still had rights over their child. When he was sentenced, he was given an order banning him from any future contact with children, but that ban did not extend to his own children. Bethan spent £30,000 going through the family court fighting to protect her child from him.
The courts and the law should step forward to protect children. It should not be left to the mother—especially because, in most of these cases, the mother will be a victim as well. The court should strip the father who has done the offending of rights over his child.
As the Government have said, they are adopting this change. I have already said that I have concerns about some of the limitations with regard to the offence type. Let us be honest: I do not believe in the rights of fatherhood when parents are abusive at all.
When working with my right hon. and learned Friend, there are a lot of messages—that is what it is always like. The drafting of the legislation has essentially been copied and pasted from previous campaigns that we worked on with regard to Jade’s law on homicide, and there is a worry about the drafting of proposed new section 10B to the Children Act, which requires local authorities to make an application to the family court to review the decision to remove the sex-offending father’s parental right in every case, even when there is no issue at all with the mother. In her closing remarks, will the Minister address that?
Several hon. Members rose—
Laura Farris
My right hon. Friend is quite correct: that is the basis on which the Government cannot accept the amendments. Of course, everybody agrees that water companies should be punished as robustly as possible, but it is also the case that we have pre-existing offences that apply. Pollution incidents are already the subject of criminal sanctions available to the Environment Agency under the Environmental Permitting (England and Wales) Regulations 2016, and there is a serious risk of duplication, not least because—I hope the hon. Member for Westmorland and Lonsdale (Tim Farron) will not mind my saying this—the sanctions he has included in his amendments are just more fines, and we already have a fines regime.
Let me set out very briefly the basis on which, in a principled way, we are saying no to the amendments. As the environment regulator, the Environment Agency can and does prosecute company directors and other senior officers under the relevant regulations. It has a power to fine, and there can be convictions for polluting rivers and coastal waters, where it can be proved that the offence has been committed. Expanding criminal liability would simply create a repetition of the existing powers. It is the Government’s view that the amendments would create a dangerous and unacceptable risk of double jeopardy across the two regulatory regimes that are administered by Ofwat and the Environment Agency.
The amendments would simply duplicate the existing sanctions, as my right hon. Friend the Member for Ludlow (Philip Dunne) put it, for not meeting performance commitments. More seriously, they could undermine the robustness of the Environment Agency’s criminal sanction regime. On that basis, I hope the hon. Member for Westmorland and Lonsdale will understand why we do not want to see duplication in an area where there is already the capacity to prosecute, a criminal law regime and the sanction of fines, which is everything that his amendments seek.
Jess Phillips
I fear the Minister is coming to the end of her remarks, but she has not addressed my new clause 44. Does she have any comment on it?
Laura Farris
I thank the hon. Lady for reminding me, but I had not forgotten. I listened carefully to her speech and I have read all her amendments, not all of which were selected, but some of which she has raised before. On the general defence, she will know that the Law Commission is currently undertaking a review of the defence of duress in relation to women and the crime—
Laura Farris
I know that the amendment has not been selected, but I want to provide the hon. Lady with some reassurance on it, because we on this side of the House continue to think about the issues she has raised. She is aware of the Law Commission’s review of the defence of duress as it applies to murder. I want to provide her with an update and some reassurance that we will take the lessons that come out of that review, and consider it more widely, if appropriate, in alignment with the point that I think she made earlier in this debate.
On new clause 44, this is an important point between us, but the Government are resisting it not because there is any real dispute of principle, but because there is dispute of degree. There is a concern that by amending the wordings of sections 52 and 53 of the Sexual Offences Act, as so drafted, we could unnecessarily narrow the scope of section 52 as it has been applied in the criminal courts and potentially add an additional element to be proved in relation to section 53 that could make prosecution harder. We disagree not on the principle but about whether it will have the effect she is looking for. I did listen carefully to her speech and the way that she has presented the argument on previous occasions.