Police Cautions (Young People)

Lord Spellar Excerpts

Wednesday 17th April 2013 Westminster Hall

[Steve Brine (Winchester) (Con)]

You will be happy to know that I have prepared for this debate, Mr Gray. It is a pleasure to serve under your chairmanship for the first time and I am pleased to have secured the debate. I am still wearing a black tie after the events of this morning, but I think that this debate involves good news. I look forward to the Minister’s winding-up speech. The debate provides an opportunity for me to discuss an issue that can blight the lives of many hard-working young people in our constituencies and seek clarification from the Minister on recent developments in Government policy.

Police cautions can have a detrimental impact on the lives and employment prospects of young people. An e-mail from one of my constituents led me to initiate the debate, and I know that many other Members have received similar correspondence. My constituent, who is now in her final year at university, received a police caution in early 2007, when she was 15 years old, for a minor shoplifting offence while part of a dominant group of girls. Her e-mail explained to me that the huge peer pressure that she felt so as to be accepted as part of that group and coercion by her then friends were key reasons for her behaviour, which she admits was poor. I am sure that many of us have some sympathy with that.

Looking back, my constituent admits that she feels utterly embarrassed by and ashamed of her actions, which were completely unrepresentative of her character. She has not acted similarly before or since. She is not a dishonest person—I have seen several character references from employers and former teachers that she has provided to back that up—and in the years since the offence she has not kept in contact with any of the people involved and has gone on to achieve success in her exams and at university.

My constituent’s ambition is to pursue a career in law, and her academic success and involvement in voluntary and extracurricular activities make such a career possible, but that dream has been jeopardised by the police caution that she received more than six years ago. The Solicitors Regulation Authority has informed her that it is more likely than not that her application will be rejected due to her caution. She is understandably devastated that she may not be able to pursue her chosen career.

As the Minister will be aware, the Justice Committee, of which I am a member—I am pleased to see our Chairman, the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith), here today—published a wide-ranging report on youth justice on 14 March. Among our many recommendations, one is particularly relevant to this debate. Paragraph 21 of the conclusions and recommendations reads:

“We support the reduction in rehabilitation periods introduced via the Legal Aid, Sentencing and Punishment of Offenders Act, which means that many young offenders’ convictions will become spent sooner. We also agree with the Minister that employers, as well as schools, colleges and universities, should consider taking young people on despite their previous offences, as many do. Nevertheless, while we recognise that for very serious offending, disclosure of convictions will continue to be in the public interest, we consider there is potential to go further in relation to more minor convictions. We therefore recommend that, in addition to keeping the youth rehabilitation periods under review, the Government considers legislating to erase out-of-court disposals and convictions from the records of very early, minor and non-persistent offenders at the age of 18, so that they cannot be disclosed to employers under the Exceptions Order to the Rehabilitation of Offenders Act.”

Since 2008, more than 1 million child arrests have been made in England and Wales, about one third of which resulted in a police caution. Lest I am misunderstood —heaven forbid—by certain sections of the press or even the House, I want to be clear that I believe young people should be punished according to the rule of law, like anybody else, when they do wrong. How we respond to often low-level bad behaviour by youngsters, however, has the potential to blight the rest of their lives by further alienating them from society. Our country cannot afford and would not be right to put young people, in effect, on the scrap heap before they had ever had a chance. Those young people need support, not perpetual criminalisation, and this change would provide that.

The Justice Committee report’s recommendation aims to improve the prospects of young people who have received police cautions for minor offences and have not reoffended by wiping their records, thereby preventing cautions from being disclosed to certain potential employers during criminal record checks.

[Mr John Spellar (Warley) (Lab)]

Does the hon. Gentleman realise that the problem can be hugely discriminatory against youngsters in inner cities, many of whom receive cautions at an early age, blighting their lives? We are in danger of creating a perpetual underclass of people who can never escape due to minor offences for which Parliament never legislated such a disproportionate penalty.

[Steve Brine]

I very much agree. We are often talking about people who come from disadvantaged backgrounds. As a country, we are crazy to hold them down, as we do in some cases. They need support, not perpetual criminalisation.

Although not entirely down to the actions of our Committee—it would have been a swift move by the Minister if so—I am pleased that the Government plan to lay before Parliament a statutory instrument to amend the exceptions to the Rehabilitation of Offenders Act 1974, so that some spent convictions and cautions do not have to be disclosed and cannot be taken into account in employment decisions. Nevertheless, that development still leaves us with several questions.

On 29 January this year, the Court of Appeal ruled that the system of Criminal Records Bureau checks constituted a breach of article 8 of the European convention on human rights and of the Human Rights Act 1998, and that requiring the disclosure of all convictions and cautions relating to recordable offences is disproportionate to the aim of protecting children and vulnerable adults. Why, therefore, did the Government feel the need to seek leave to appeal to the Supreme Court?

The statutory instrument that the Government will lay before Parliament will help my constituent and many others, so I welcome it. It is proposed that cautions and equivalents administered to a young offender will not be subject to disclosure after two years, and that a conviction received as a young offender resulting in a non-custodial sentence will not be subject to disclosure after five and a half years. May I press the Minister, however, to implement the measure as quickly as possible? How long will it be before the order is laid before the House? Will he confirm that any changes will be applied retrospectively?

Finally, my constituent highlighted two other important issues, which concern other Members as well. First, on the role of local constabularies in removing or retaining a caution on a young person’s record, my constituent contacted Hampshire constabulary in the hope that it might be able to remove the caution from her record, but she was told that nothing could be done in that regard. However, in certain circumstances, do not chief constables have the discretion to prevent the disclosure of cautions? Where does the truth lie?

--- Later in debate ---

[Damian Green]

The hon. Gentleman might be aware that we are conducting a cautions review at the moment, so feeding into that is important. As I am about to explain in detail, we are concerned to encourage the use of out-of-court disposals but to ensure that, first, the length of time for which they are active beyond the period of the commission of the offence is properly limited and that, at the same time, they provide confidence in the wider justice system and in particular a feeling among victims that appropriate reparation has been made. That is the balance to be struck.

[Mr Spellar]

The initiatives that the Minister is announcing are useful and heading in the right direction, but we might be getting away slightly from the core of the issue: misdemeanours or offences committed at a young age, whether leading to cautions or convictions and minor punishments, can blight people’s lives. We saw that, in particular, with the elections for police and crime commissioners, when a number of individuals of all political parties were prevented from standing 40 or 50 years after committing the offences. That should have highlighted the necessity of taking action, to prevent them from appearing on people’s records and their life being affected.

[Damian Green]

The right hon. Gentleman is right; that was certainly a vivid example of the long-lasting effect. I gently point out, however, that that legislation was passed by the House over the past couple of years entirely unopposed.

--- Later in debate ---

[Mr Spellar]

All parties made a mistake.

[Damian Green]

However, the time for which an offence should hang over a young person or anyone else is contentious, and we must be careful to strike a balance. Ensuring appropriate punishment and particularly appropriate reparation for victims, so that they have confidence in the system, form the other half of the balance that I am sure all hon. Members want to strike.

Policing

Lord Spellar Excerpts

Wednesday 24th October 2012 Commons Chamber

[Mr John Spellar (Warley) (Lab)]

My right hon. Friend touches on the important question of police morale and how this will impact on police effectiveness. Does he think that police morale and effectiveness will be improved by the ludicrous suspension of Detective Superintendent Fulcher in Swindon for trying to solve a kidnapping while the victim could still have been alive and for solving two murders? Should he not receive an award for that, rather than being criticised by an out-of-touch judge and hide-bound bureaucrats?

[Mr Hanson]

I was also in Swindon yesterday, while campaigning for Clare Moody, Labour’s candidate there, and know that that was a live issue in many discussions. The matter has now been referred to the Independent Police Complaints Commission, which will have to look at it, but I recognise my right hon. Friend’s strength of feeling.

On the question of CCTV, the code of practice we expect next year will certainly reduce the number of CCTV cameras and increase the bureaucracy, which in my view will have an impact on fighting crime. If we look at the DNA database and changes that my right hon. Friend the Member for Kingston upon Hull West and Hessle looked at hard, we see that the Government’s changes will make the database weaker, go against the Home Office’s own evidence and ensure that people who would have been caught and prevented from committing murders or serious sexual offences will now be able to commit them. Our own evidence in July 2010 showed that, under the system proposed by my right hon. Friend, 23,000 people each year would have been on the database who, under the Government’s plans, will not be and so will go on to commit further offences. What has it come to when the so-called party of law and order cuts policing, reduces CCTV, stops people—23,000 of them—being caught as a result of DNA evidence and, lastly, removes ASBOs, which are there to help protect communities against antisocial behaviour?

Transparency and Consistency of Sentencing

Lord Spellar Excerpts

Thursday 2nd February 2012 Commons Chamber

[Rory Stewart (Penrith and The Border) (Con)]

I rise with an enormous amount of insecurity because I am talking to so many learned friends on a subject about which I know so little—I feel a little like a woolly mammoth staggering into a law library. My speech is really a series of hints followed by guesses, with perhaps some questions about the relationship of the Sentencing Council to our constitution.

It strikes me that there is a danger with the Sentencing Council that I would love to hear the Government address. It seems—if I may use portentous language—to be a threat to the liberty of Englishmen. I say that deliberately because it does not, of course, apply to Scotland, and I would not presume to speak for Wales. The Sentencing Council is a threat to the liberty of Englishmen because despite its best intentions—we have heard wonderful stuff about predictability, transparency, consistency and public trust—it is attempting to step on sacred ground. It is going where the state and administrators should not go; it is trying to cross the threshold of the courtroom door.

We in Parliament are connected to many things that are to do with the law. We create the law, and we define crimes and the factors relevant to them. We can even state the maximum sentence—or, in exceptional circumstances the minimum sentence—for a particular crime. We should not, however, become involved—and I fear that the Sentencing Council is involved—with the exact processes and factors that operate within the courtroom itself, and in particular with the independence and power of the jury and the judge.

We have heard a certain amount about the independence of the judge, but the most important point concerns the jury, which has a direct interest in knowing the connection between its verdict and the judgment reached. It is difficult for it to see that connection, however, in the current world of the Sentencing Council, which is an astonishingly opaque universe that might appeal to a management consultant or to a Taylorist soap factory. For example, in the case of grievous bodily harm, the Sentencing Council attempts to define nine aggravating factors, three statutory aggravating factors and 25 additional factors, and then to churn the whole thing through a sausage factory of nine different steps until a judgment is produced through that complex algorithm. How is the jury expected to understand the consequences of its verdict on such a judgment?

Purists may say that such things are none of the jury’s concern, and that the jury does not need to know the sentence as its concern is merely with the verdict. However, that has never been true in English common law, which from the beginning has contained the notion of pious perjury—in other words, the jury’s ability not only to determine the verdict, but to have an influence on the sentence. That was important, of course, when the death penalty attached to basic crimes, and it is still important today when we consider issues such as assisted suicide. It is a very important part of our liberty that the jury retains the discretion to affect the decision.

The second set of problems with which we are dealing concerns the independence of the judge. The jury is the preservation of our liberty, but the judge also has two important hands that are manacled by the Sentencing Council. The first is his ability to reach a decision based on the complexity of an individual case. The algorithms produced by the Sentencing Council—the lists of nine or 25 factors—are simply, in its own words, “non-exhaustive” lists of the factors that a judge is supposed to take into account. He is supposed to recognise the individuality of the crime, and the nature and history of the criminal. Those are the things for which we employ a judge—the things that a human is better able to provide than a machine or some checklist produced by the Sentencing Council.

The deeper, bigger problem is that the judge is not simply involved in a forensic investigation. It is not simply a question of fact or the analysis of evidence; at its deepest level, it is a question of morality and philosophy. When the judge determines a sentence, he is supposed to take on board not simply the crime and the history of the criminal but all the issues that we have heard about today—deterrence, public protection and justice in its broadest sense. They are not instrumental or factual questions but normative questions of morality and philosophy. Those things cannot be outsourced to a Sentencing Council that wishes us to tick boxes.

The defence of the Sentencing Council—that the guidelines are not mandatory—is of course deeply disingenuous. It is only under the most exceptional circumstances that judges can depart from them. Let us therefore remember that the reason why we have for so long protected the independence of the jury and the judge in English common law from exactly that type of administrative state interference is that we are English, not French. Such interference is a very Napoleonic approach, implying that the administrative state, with its astonishing mathematical formulae and algorithms, can generate the appropriate sentence within the hallowed space of the courtroom.

We must fight against that, because from the very foundation of our jury system, the basic principle of English common law has pushed against the idea of learned experts with their technocratic micro-management and instead recognised, since the early mediaeval period, the importance of even semi-literate jurors. The qualities that we look for in justice are not those of mathematical precision and science but those of common sense, human relationships, understanding and fellow feeling. In the judge, we look not simply for his learned nature, but for his compassion, philosophical insight and morality.

I conclude with a small reference to Blackstone. However convenient the new methods of trial may at first appear—indeed, all arbitrary methods are convenient at their first appearance—let it be remembered that the delays and minor inconveniences in the forms of our justice are the price that a free nation pays for its liberty in more substantial matters.

[Mr John Spellar (Warley) (Lab)]

On a point of order, Mr Deputy Speaker. Following remarks today by the United States Defence Secretary Leon Panetta that US forces in Afghanistan will step back from their lead combat role by the end of 2013, Downing street appears to have announced a similar policy for British troops at its press briefing this morning. Surely that should have been first announced to Parliament. Has Mr Speaker been approached by the Foreign Office, the Ministry of Defence or even the Prime Minister’s office saying that the Government wish to make a statement to Parliament either today or, at the very latest, on Monday?

[Mr Deputy Speaker (Mr Nigel Evans)]

Thank you, Mr Spellar, for forward notice of that point of order. I have not received any information that the Prime Minister or any other Minister intends to make a statement today. Should that change, Members will be notified in the usual way.

Oral Answers to Questions

Lord Spellar Excerpts

Tuesday 31st January 2012 Commons Chamber

[Mr John Spellar (Warley) (Lab)]

4. What steps he is taking to transfer more foreign national prisoners to their home countries.

[The Parliamentary Under-Secretary of State for Justice (Mr Crispin Blunt)]

The Government are committed to removing more foreign national offenders at the earliest opportunity. Last week I met the European Union Commission, and the Justice Secretary met European Union Justice Ministers, to impress upon them the importance of member states implementing the new European Union prisoner transfer agreement promptly. We continue to negotiate prisoner transfer agreements with countries outside the European Union. We are also examining our offender management processes here in the United Kingdom, which will help to identify how more foreign national offenders can be transferred to their home countries.

[Mr Spellar]

Is not the reality that the number of foreign prisoners being removed is actually dropping, and that although we signed an agreement with Jamaica in 2007, Jamaica has still not got round to ratifying and acting on it? When is the Minister going to get a grip of the situation?

[Mr Blunt]

I regret that we are having to deal with the inheritance of the legal instruments that were negotiated and presented to us by the last Administration. The Jamaican prisoner transfer agreement is an example of that. Even if the Jamaican Parliament passed the legislation to implement and ratify that agreement—which is beyond the control of this Government, I might gently point out—it would still require the consent of the Jamaican prisoners in our prisons to go home under that agreement. That would not be forthcoming, so we need a rather more effective piece of negotiation, which is all part of the strategy that we are putting in place with the 20 countries from which the largest number of foreign national offenders in our prisons originate, to get some proper, joined-up governmental attention on this issue.

Oral Answers to Questions

Lord Spellar Excerpts

Tuesday 28th June 2011 Commons Chamber

[Mr Djanogly]

Where human rights are concerned and where someone risks being terrorised in their country of origin—I am not saying that it is right or wrong that they should go back—it is right that they receive legal aid to defend their interests.

[Mr John Spellar (Warley) (Lab)]

2. What discussions he has had with the Secretary of State for the Home Department on steps to remove foreign national prisoners.

[The Minister for Policing and Criminal Justice (Nick Herbert)]

Home Office and Ministry of Justice Ministers have frequently discussed the issue of foreign national prisoners, and our officials are in regular contact. The removal of foreign national prisoners and offenders awaiting deportation is a mutual priority.

[Mr Spellar]

The Department says that it wants to reduce the prison population. I am dealing with a case where a long prison sentence was rightly given, the tariff has been reached and the UK Border Agency is trying to deport the man, but the Minister is letting the Parole Board block this. What benefit is there to the British taxpayer or the safety of the British public in keeping him here? Can we have some joined-up government on this?

[Nick Herbert]

I can tell the right hon. Gentleman that this is the kind of thing we want to address, and I understand that it is being addressed in the Legal Aid, Sentencing and Punishment of Offenders Bill. We wish to improve our performance on the removal of prisoners. I should point that out that more than 5,000 foreign national prisoners were removed last year. We intend to continue to take every possible step both to reduce the foreign national prisoner population and to remove prisoners from this country.