Police, Crime, Sentencing and Courts Bill

Joanna Cherry Excerpts

2nd reading & 2nd reading - Day 2
Tuesday 16th March 2021 Commons Chamber

[Joanna Cherry (Edinburgh South West) (SNP) [V]]

During the pandemic, our civil liberties have been curtailed in a way that was previously unimaginable. Most of us have accepted that in order to protect life and public health, but along the way injustices have occurred.

Black Lives Matter protesters in London were kettled and photographed and asked to provide their names as a condition of their liberty, with no legal basis, yet police allowed football fans to party on the streets of Glasgow and even gave them a police escort to their destination of choice. Then, last weekend, police officers manhandled and detained women protesting the alleged abduction and murder of a woman, with which a police officer is charged. It is hard to imagine a more egregious misuse of police powers.

All this has occurred because the law on protest in a pandemic is not clear, but the provisions in this Bill to curtail the right to protest beyond the pandemic are even worse. The Bill affords significantly expanded powers to the police to stop protests that would cause “serious unease” and creates criminal penalties for people causing “serious annoyance”. But causing annoyance is part of our freedom of speech. If a protest can be prevented for being annoying, any protest can be prevented.

All movements for change involve an element of peaceful protest. Think of the suffragettes. I am sure many of us did when we saw the photographs from Clapham common on Saturday night. If women cannot speak up to protest their rights, what is our society coming to? Yes, the Extinction Rebellion protests may have been very annoying to those of us going about our business on London’s streets and public transport, but those protesters were protesting the biggest problem of our age—climate change—and I think that gives them the right to be a bit annoying.

We have now seen what can happen when the law governing our right to protest is unclear. The same problems will occur if the margin of discretion granted to the police and the Home Secretary is left as wide as it currently is in this Bill. Although these legal changes will have force only in England and Wales, they will impact people living in Scotland. There is a long tradition of Scots travelling to London to protest. We saw that most recently with the huge demonstrations against Brexit, and past examples include the fight against section 28 and the fight of the anti-war movement.

Parliamentarians, whether of left or right, should never be in the business of giving Governments and police forces powers to stifle dissent, particularly where there is a risk that those powers will be used against those whose beliefs make the Government and the establishment of the day uncomfortable. I would say the same if I were worried that the Scottish Government were in danger of curtailing freedom of expression—and indeed I have, which is part of the reason I am making this speech from the Back Benches.

Police, Crime, Sentencing and Court Bill

Joanna Cherry Excerpts

Report stage
Monday 5th July 2021 Commons Chamber

[Mr David Davis (Haltemprice and Howden) (Con)]

It is a pleasure to follow the hon. Member for Croydon Central (Sarah Jones). I will return to one of her points in a moment, but I shall start by focusing on the amendments tabled in my name—amendments 118 to 121.

In 2017, we reformed pre-charge bail—that is police bail in the jargon—to introduce time limits on how long suspects can be held on bail before being charged, and we introduced a general presumption against the use of pre-charge bail. These changes came after the terrible treatment—I reiterate, the terrible treatment—of some people, the most famous of whom, I guess, was Paul Gambaccini, in the spin-off from the Savile affair. Gambaccini’s career was destroyed by the effective presumption of guilt in the treatment of him.

Even with those 2017 reforms, we still see a large number of people on pre-charge bail today and, indeed, for excessive lengths of time. In 2019, the number on pre-charge bail was 84,000. In 2020, it was nearly 154,000. The effect of the 2017 legislation, therefore, was not to suppress pre-charge bail, so the logic behind the changes in the current Bill are flawed to start off with. Worse than that, the number of people held on pre-charge bail for more than 12 months is 2,344, which is itself an increase on the previous year. These are people for whom there is not enough evidence to charge—not to convict, but to charge, which is a much, much lower threshold.

Currently, I have a case where the National Crime Agency has kept an individual on bail for almost six years. That is six years of being unable to live anywhere but her home address; six years of being unable to see her family because her passport has been withheld; six years of being without a bank account; six years of being without a job or career; and six years of being unable to lead a normal life. When I took it up with the National Crime Agency, I got a letter in response, which, frankly, would have done justice to an episode of “Yes Minister.” The most interesting point in it was a comment making the point that investigations took a long time. It said: “Investigations of this length are not uncommon when dealing with complex cases.” Six years is not uncommon in a justice system where the presumption of innocence is paramount. That is the problem that I am addressing with my amendments. For someone who has not even been charged, the NCA’s actions in this case make a complete mockery of the principle of presumed innocent until proven guilty. By the way, as an aside—separate from the Bill—we cannot find out how many people the NCA has under these circumstances. It is not subject to freedom of information requests and we know nothing about its operations, yet it still does these things.

The Bill seeks to undo the 2017 reforms, eliminating the general presumption against pre-charge bail and amending time limits. Although reform is clearly needed, this is not the correct way to do it. As the Law Society has said, changes to pre-charge bail may lead to people being kept “in limbo” for long periods of time, impacting their civil liberties. I entirely agree. The Government, of course, argue that their proposed reforms have public backing, but the consultation responses were starkly skewed. Police and law enforcement agencies accounted for 65% of the responses, compared to the legal professions at a mere 3%. Nobody should take at face value the Government’s claim that that backing reflects the consultation; it reflects the interests of the agencies involved.

My amendments 118 and 119 would introduce a two-year absolute limit on the use of pre-charge bail, ensuring that agencies had time to investigate properly but promptly. We should remember that the test is the ability to charge, not the ability to convict. That is how far it has to get in two years; that is the primary aim.

Amendments 120 and 121 would prevent the Government from reversing the presumption against the use of pre-charge bail. That would prevent a return to the practice of bailing suspects for lengthy periods with strict and unacceptable curbs to their civil liberties.

I would like to pick up the point made by the hon. Member for Croydon Central (Sarah Jones), because clearly she got some pushback from the Government Benches. As it stands, the Bill actually does pose a grave threat to the fundamental right to protest that this country has had enshrined in our national fabric for, I think, some 800 years. The Bill does address real issues, but the Government want to have the power to arrest people who cause “serious annoyance” or “serious inconvenience”. These are incredibly vague terms, frankly. It is clearly a breach of the normal reasoning behind a demonstration when somebody glues themselves to a train with the direct intention of inconveniencing everybody else, but demonstrations do lead to inconvenience.

It is not just the leftie, liberal, legal fraternity that has been worried about the proposed power; there was a letter to the Home Secretary, elements of which were published in today’s edition of The Times, from a number of police chiefs, who are concerned that the effect of the provision is twofold. First, it puts the police in the position of making judgments that they should not be making; that should be specified by this House, not by the police chiefs themselves. Secondly, that puts them in a politicised position, and that is really problematic. We have an apolitical police and every law we write must be written on the presumption that it will be a Government very unlike ours who oversee us at some point in the future. What if, in 20 years’ time, we have an extreme right-wing or extreme left-wing Government, and this sort of vague provision is in place? I ask the Government to pay attention to the precision of this measure, so that we get it exactly right.

[Joanna Cherry (Edinburgh South West) (SNP)]

Does the right hon. Gentleman agree that there is an incongruence in the Government saying they want to defend free speech in universities while effectively attacking the right of freedom of expression on our streets by criminalising activities that will cause serious unease?

[Mr Davis]

The hon. and learned Lady has a point.

Police, Crime, Sentencing and Courts Bill

Joanna Cherry Excerpts

Consideration of Lords amendments
Monday 28th February 2022 Commons Chamber

[Kit Malthouse]

I propose first to talk about some of the key changes made to the Bill in the other place as a result of amendments brought forward by the Government, then to turn to the Lords amendments with which, sadly, the Government disagree for various reasons.

The Bill as passed by this House already included a number of significant measures to tackle violence against women and girls, and we have added to them during the Bill’s passage in the Lords. Lords amendments 13 to 15 make it clear in the Bill that domestic abuse and sexual violence are included within the meaning of the term “violence” for the purposes of the serious violence duty. It was always our wish that the serious violence duty should be all-encompassing, but following representations by Baroness Burton and others who were concerned to emphasise its importance, we are happy to agree to this being included in the Bill. The accompanying statutory guidance, which will be subject to public consultation, will make it clear that local areas, in drawing up their strategies to prevent and reduce serious violence, can and should include measures to tackle domestic abuse and sexual violence based on their local assessments.

With regard to Lords amendments 34 to 55, on Report in this House the Minister of State, my hon. Friend the Member for Louth and Horncastle (Victoria Atkins), reiterated the Government’s commitment to ensuring that the provisions of the Bill relating to the extraction of information from electronic devices are accompanied by strong privacy safeguards. These Lords amendments deliver on that commitment. Among other things, they add a new clause setting out the conditions that must be met in order for a device user to be treated as giving agreement to the extraction of information. These changes will increase victim confidence and ensure that the individual’s right to privacy is respected and placed at the centre of all investigations.

Lords amendment 56 will create new offences to criminalise recording images of, or operating equipment to observe, a person at a time when they are breastfeeding, without the person’s consent or reasonable belief that they consent. On Report, the hon. Member for Walthamstow (Stella Creasy) made a powerful case for introducing such offences. Although at that time we made it clear that the Law Commission is currently reviewing the law in this area, we do believe that this amendment will ensure that parents are protected from non-consensual photography and can feel safe to breastfeed in public, ahead of the publication of the Law Commission report later this year.

Another compelling argument was made on Report last July by the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper) and my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton), who is sadly not in his place, to address concerns that the time limit for bringing prosecutions for common assault or battery involving domestic abuse is unfairly short. Currently a prosecution for common assault or battery must be brought within six months of an offence occurring. However, victims of domestic abuse may often, understandably, take some time to report an offence, leaving the police and the Crown Prosecution Service with little time to conduct an investigation and prosecute the offender. In some instances, the time limit has expired before the victim even approaches the police. To address this issue, Lords amendment 57 will extend the time limit for commencing a prosecution for common assault or battery involving domestic abuse so that the six months runs not from the date when the offence occurred but from when it is formally reported to the police through either a witness statement or a video recording made with a view to use as evidence. A prosecution must be commenced within an overall limit of two years of the offence. This amendment will make a real difference to victims of domestic abuse and stop perpetrators hiding behind an unfair limitation on victims’ ability to seek justice.

Lords amendments 59 and 60 will ensure that the police’s processing of personal data in non-crime hate incident records is made subject to a code of practice issued by the Home Secretary. The amendments will address concerns raised by my hon. Friend the Member for Shipley (Philip Davies), also sadly not in his place, in this House and by Lord Moylan and others in the other place by bringing parliamentary oversight to this process. The College of Policing is currently responsible for producing non-statutory hate crime operational guidance. The Government’s statutory code of practice, once in effect, will replace the relevant section of this guidance on non-crime hate incidents. The college’s guidance will remain in place until the new code enters into effect. When drafting the code, the Government will work closely with policing partners, including the College of Policing and the National Police Chiefs’ Council, to make sure that it will respect the operational importance of recording non-crime hate incidents to help to keep vulnerable people and communities safe while balancing the need to protect freedom of expression.

Let me turn to the Lords amendments that the Government cannot support—at least, not in their current form. Lords amendment 70 would require the Secretary of State to establish a review of the prevalence of, and the response of the criminal justice system to, the offence of administering a substance with intent under section 61 of the Sexual Offences Act 2003—commonly known as spiking. The Government share widespread concern about the offence that has prompted this amendment, whether spiking of drinks or spiking by needles, and we are taking the issue extremely seriously. I particularly commend my hon. Friend the Member for Gloucester (Richard Graham) for bringing forward his recent ten-minute rule Bill on this issue. Everyone should be able to enjoy a night out without fearing that they will be a victim of this dreadful crime.

In September 2021, the Home Secretary asked the National Police Chiefs Council to review urgently the extent and scale of needle spiking. It is clear from what the police have told us that this behaviour is not exclusively linked to sexual activity and that it demands a response that goes beyond the criminal justice system. We have therefore tabled our amendment in lieu of Lords amendment 70, which is drafted more broadly than the Lords amendment and is not linked to any specific offence. It will require the Home Secretary to prepare a report on the nature and prevalence of spiking and to set out the steps that the Government have taken or intend to take to address it. In this context we are also exploring the need for a specific criminal offence to target spiking directly, as my hon. Friend recommended in his ten-minute rule Bill. The Home Secretary will be required to publish this report and lay it before Parliament within 12 months of Royal Assent. In preparing the report we will want to take into account the findings of the current inquiry by the Home Affairs Committee. This approach addresses the concerns that prompted the Lords amendment but in a way that enables the Government to consider the issue in the round.

Lords amendment 72 seeks, in common parlance, to make misogyny a hate crime. Hon. Members may be aware that in December last year, at the Government’s request, the Law Commission provided recommendations on the reform of hate crime laws. Looking very carefully at this issue, it found that adding sex or gender to hate crime laws may prove “more harmful than helpful”, as well as “counterproductive”. The principal reason is that it could make it more difficult to prosecute the most serious crimes that harm women and girls, including rape and domestic abuse. Obviously such an awful unintended consequence is not the intention of those who tabled the amendment in the other place. As such, the amendment seeks to exclude certain offences where the risks to their prosecution are acute.

The Law Commission looked at every possible model and unfortunately also found the one proposed in the amendment unsatisfactory. Time is short and I do not want to dwell on all its problems, but the review identified that to reflect sex and gender in some offences but not others would make the law very complex and imply that very harmful excluded offences such as rape are less serious, would result in tokenistic coverage of many misogynistic crimes, and would create new inequalities in how different groups are protected by hate crime laws.

[Joanna Cherry (Edinburgh South West) (SNP)]

The inner house of the Court of Session, Scotland’s highest court, has recently clarified that in the Equality Act 2010 “sex” does indeed have the meaning set out in section 11—that is, that it refers to one or other sex, male or female. Does the Minister share my concern that this amendment has that definition of “sex” but the word “gender” is undefined? Is he aware that many feminists feel that gender is not the same as sex and that in fact gender is a tool of sex-based oppression?

[Kit Malthouse]

I acknowledge some of the problems with the amendment that the hon. and learned Lady sets out. I think it is Women’s Aid that rejected the amendment and said that it would do more harm than good on the basis that she outlined: it is not specific about targeting crimes against women in particular.

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[Kit Malthouse]

My hon. Friend has put her finger on the button of the problem. It is not that we are unsympathetic to the issue—of course we are not. I just do not see how, given the views of large organisations and of the Law Commission, somebody could, with any conscience, vote for something that they are being told might be damaging. I understand that the hon. Member for Walthamstow is exercised by the issue—as are all hon. Members present—but we hope to address it in other ways and to look seriously at the further offence that my right hon. and learned Friend the Member for South Swindon has urged us to look at and bring it forward in future.

[Joanna Cherry]

In support of the English Law Commission—hon. Members should be aware that the legislation applies only in England and Wales—in Scotland, when the Scottish Government were looking at introducing hate crime legislation, they rejected misogyny as an aggravating factor after submissions from Rape Crisis, Women’s Aid and Engender in Scotland. Baroness Helena Kennedy is now chairing a panel to look at that with a view to reporting. There are arguments on either side.

I am most concerned that if we are to have an aggravation based on sex or gender, gender must be defined. We already have a protected characteristic of transgender identity, which is very important, but in this Lords amendment, sex is defined but not gender. Does the Minister agree that, in future, we should define what we mean by gender so that people know what it means?

[Kit Malthouse]

There are a number of definitional issues within the Lords amendment that produce fatal flaws, but I absolutely commend the spirit behind it. It comes from a good place and from a concern that we share. Given that legal expertise advises us against it and advises us to pursue another course, that is our intention and that is what we will do.

I turn now to Lords amendments 114 to 116, which relate to the piloting and national roll-out of serious violence reduction orders. I assure the House that we want to pilot them robustly, which is why the assessment of the pilot will be conducted by an independent evaluator and the Government will thoroughly consider the report’s findings before any decision is made to roll them out across the whole of England and Wales.

The report of the pilot will be laid before Parliament, but commencement regulations are not generally subject to any parliamentary procedure and the Government do not agree that that approach should be changed for SVROs. To assuage the concerns that have been raised in relation to the pilot, amendments (a) and (b) in lieu of Lords amendments 114 to 116 will set out in the Bill a non-exhaustive list of matters that must be addressed in the report of the pilot.

Lords amendments 141 and 142 seek to create two new offences to tackle so-called sex for rent. We are clear that exploitation through sex for rent has no place in our society and is a revolting phenomenon. We therefore fully understand the motivation behind these amendments. There are existing offences in the Sexual Offences Act 2003 that can and have been used to prosecute this practice successfully, but we do recognise the need to do more to stamp out this abhorrent practice and to support those at risk of exploitation.

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[Sarah Jones]

I understand what the hon. Member is saying, but as my hon. Friend the Member for Walthamstow (Stella Creasy) said, there is a carve-out clause particularly designed to satisfy that concern. I believe that distinguishing between serious sexual violence crimes and other forms of crime that may be enacted with a misogynistic intent would solve that problem.

These kinds of misogynistic attitudes and this kind of behaviour are more widespread in society than we care to think. We must be absolutely intolerant of it, and the hate law speaks to that. Such attitudes erode the very fabric of society and we should collectively reject them.

[Joanna Cherry]

I share the hon. Lady’s horror of misogyny, but I do not understand why although “sex” is defined in the amendment, “gender” is not. What does she understand by the term “gender” in the amendment? Why is it not defined?

[Sarah Jones]

I understand the point that the hon. and learned Lady is making. The offences are motivated by hostility towards the sex or gender of the victim, and the amendment is designed to be as inclusive as possible, but I hear what she says. Refuge and some other women’s organisations have published a good briefing that tackles some of these issues, and perhaps we could have a conversation about it afterwards. I think her concerns are unfounded, but I understand the point she makes. These issues are complex and difficult, and we must make sure we get them right.

[Joanna Cherry]

But surely as legislators, if we use a word we have to define it. We all know that there have been problems with conflating sex and gender. The amendment clearly states “sex or gender” and since “sex” is defined, as one would expect, by reference to section 11 of the Equality Act 2010, surely we can define what we mean by “gender”. If we cannot define what we mean by “gender”, why are we including it as an aggravation?

[Sarah Jones]

The aim of the amendment is to try to make misogyny a hate crime in whatever form it comes, and to be as inclusive as possible in that definition.

[Stella Creasy]

Does my hon. Friend agree that given that “gender” is defined in legislation—indeed, the Government rather helpfully defined it in their consultation document, so we have a definition of “gender”—it is therefore important that we focus on perpetrators? The point behind hate crime is that I could be a victim of antisemitic abuse whether I am Jewish or not. It is about the motivation of the perpetrator. By recognising that sex or gender can motivate hostility based on misogyny, we are ensuring that no perpetrator could have a defence where they demean a victim, and no perpetrator can avoid that hostility being reported because somebody wants to put them in the trans box rather than in the misogyny box. The amendment is inclusive, but it ensures that it protects women, whether they were born or become one, using definitions that already exist in law.

[Joanna Cherry]

rose—

[Sarah Jones]

I feel as if there should be a three-way conversation in another place to tackle some of these questions. But they are real questions, and my hon. Friend the Member for Walthamstow has campaigned on this issue for a very long time, and it is important that we listen to what she says.

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[Kit Malthouse]

I do not know who is throwing the red meat here, but it is certainly not me. Obviously the hon. Lady has a constituency that will lap up her remarks, no doubt released on social media. In truth, the police have been asking for some time for improvements to the elderly public order legislation. We put the measures through consideration by Her Majesty’s Inspectorate of Constabulary and Fire and Rescue Services, which felt they were proportionate and sensible for us to pursue.

[Joanna Cherry]

The Minister is implying that the police and Her Majesty’s Inspectorate of Constabulary and Fire and Rescue Services in some way wanted this new noise trigger. Will he accept that I am correct when I say that neither the police, nor Her Majesty’s Inspectorate of Constabulary and Fire and Rescue Services, requested the noise trigger at all?

[Kit Malthouse]

The inspectorate obviously would not request that because that is not its job, but we certainly asked it to look at the balance that we are trying to present with what I think are relatively modest improvements to public order legislation. Indeed, from memory of the report, it felt we should go further, which we are unable to do because of the structure of the Bill. That means that on the rare occasion where noise is causing other people’s rights to be impinged on, and where worship or business or residence is impossible, we would seek protection.

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[Ian Levy (Blyth Valley) (Con)]

I will be brief, as I realise that time is pressing.

My father, sadly, passed away in September last year. Some years earlier, on his way home from work, he was involved in road traffic accident that left him almost dead and crippled, lying in a field. He never walked again. He was crippled by a hit-and-run driver, but because he received treatment in hospital very quickly, he survived, and because protesters were not blocking the road to the hospital he attended, he survived. My father went on to see marriages, grandchildren and great-grandchildren. My parents enjoyed years of marriage and had their 63rd wedding anniversary. I strongly believe that if protesters had blocked that road to the hospital A&E where I saw my father with his leg just about hanging off—it was absolutely horrific—[Interruption.] Thank you very much. In that case, I would not have had that time with my father, so I will be supporting this Bill tonight in memory of my father.

[Joanna Cherry]

I rise to support Lords amendments 73, 80 and 87, and to remind the House that they are very much in line with the recommendations made by the Joint Committee on Human Rights, when we looked at part 3 of the Bill and reached the conclusion that the restrictions on non-violent protest in the Bill were inconsistent with our rights.

Given the short amount of time, I am going to focus on the noise trigger, because I think that that is the most egregious part of this. A restriction on the right to protest that targets noise strikes at the very heart of why people gather together to protest—to have their voices heard about an issue that is important to them and which they want other people to treat with importance. We noted in the Committee that the larger and better supported a demonstration is, the louder it is likely to be, so restrictions on noise could disproportionately impact on the demonstrations that have the greatest public backing.

Much of the written and oral evidence we received emphasised the centrality of noise to effective protest. For example, Liberty and Big Brother Watch highlighted:

“Protests, by their very nature, are noisy. Noise is also a crucial means of expressing collective solidarity or grief and, quite literally, making voices heard by those in power.”

This was echoed in oral evidence by Zehrah Hasan, the director of Black Protest Legal Support, who said:

“Creating noise at a protest is quite literally a part of people making their voices heard.”

Another witness told us that

“this new trigger, which is noise, is an absolute affront to the right to protest. This noise trigger should not exist for the purposes of imposing any conditions on assemblies and processions. It is essentially an existential threat to the right to protest.”

That is just a flavour of the evidence we heard.

The Minister has referred to the European convention on human rights, but that is intended to provide rights that are “practical and effective”, not “theoretical and illusory”. If the police have discretion to shut down protests because they are noisy, the right to protest will become theoretical and illusory in England and Wales. Thankfully, these laws are not going to apply in Scotland, but as my hon. Friend the Member for Glasgow North East (Anne McLaughlin) said, many Scots come to London to protest and they will be affected by these laws.

I emphasise that, because it was made clear to the Joint Committee on Human Rights that neither the police, nor Her Majesty’s Inspectorate of Constabulary and Fire and Rescue Services, requested this noise trigger. They may have requested other changes, but they did not request that. As even Conservative Members have said, this measure is a fundamental threat to the right of freedom of speech and assembly in this country, and as the JCHR said in our report, it should not be in the Bill and it should go.