Oral Answers to Questions

Debate between Laura Farris and Alex Cunningham

Monday 26th February 2024 Commons Chamber

[The Parliamentary Under-Secretary of State for the Home Department (Laura Farris)]

Since 2019, we have invested £160 million in 20 violence reduction units across England and Wales, and a further £55 million has been committed this year. Violence reduction units have reached more than 270,000 young people. They bring together specialists from health, the police, local government and community organisations not just to tackle violent crime, but to identify the young people who are most at risk of being drawn into it and provide evidence-based interventions to support them.

[Alex Cunningham]

I am grateful for that answer. Children as young as 12 are being recruited by local drug dealers in the central wards of Stockton, and are provided with pocket money—huge sums for them—to carry and deliver class A and class B drugs. Many of them are in thrall to their balaclava-wearing controllers, who largely act with impunity. Although the police and other agencies work hard to combat such organised crime, Cleveland has the highest crime rate in the country, and police and councils do not have the fair funding needed to deal with criminals or provide good diversionary activities for those vulnerable young people. What will the Minister do to sort that out?

[Laura Farris]

I can reassure the hon. Gentleman that, under our tackling organised exploitation programme, we are keenly aware of the difference between victims and criminals, and that children are being drawn into criminal enterprises and gangs at ever-younger ages. I want to provide reassurance that where we have evidence of that happening, the child should be referred through the national referral mechanism—the framework for identifying victims of exploitation by county lines groups and equivalents. That can be done with or without the child’s consent, and it provides the police with a vital tool not just to protect the child but to disrupt the criminal activity in which they are being enlisted.

Criminal Justice Bill (Sixteenth sitting)

Debate between Laura Farris and Alex Cunningham

Committee stage
Tuesday 30th January 2024 Public Bill Committees

[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”.

--- Later in debate ---

[Alex Norris]

I note what the Minister says around the transformed approach. The only evidence that will work is whether the charging number increases and cases get to judgment. We will wait to see whether that proof is in the pudding, but on that basis I am happy not to press the new clause, although we might have to return to the matter on Report. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 40

Doorstep theft: aggravating factor in theft offence

“(1) The Sentencing Code 2020 is amended as follows.

(2) After section 72 (supply of psychoactive substance in certain circumstances) insert—

‘72A Theft from outside a dwelling place

(1) This clause applies where the court is considering an offence under section 1 of the Theft Act 1968.

(2) Where the theft is of an item delivered to, but not yet taken inside, a person’s dwelling place, the court must—

(a) treat this fact as an aggravating factor, and

(b) state in open court that the offence is so aggravated.’”—(Alex Cunningham.)

This new clause defines theft from a doorstep as an aggravating factor for the purposes of sentencing in cases of theft.

Brought up, and read the First time.

[Alex Cunningham]

I beg to move, That the clause be read a Second time.

Increasing numbers of people are choosing to shop online regularly, as opposed to shopping on the high street. With that comes an increase in the number of opportunist thieves. Examples of crime prevention advice on doorstep thefts include, on the Staffordshire police website, Chief Inspector Giles Parsons advising shoppers

“to do all that they can to stop this crime happening… Ask for your deliveries to be diverted to trusted neighbours or friends if you’re not going to be home. If this isn’t possible, attempt to rearrange to a time when you know you will be in or choose to collect it instead.”

Similar advice urging preventive safety measures can be found on the Merseyside police website.

Meanwhile, parcel theft has received little attention in Parliament, although it was raised in the other place in June last year, when the then Business and Trade Minister, the Earl of Minto, said:

“Under the Consumer Rights Act 2015, it is the seller’s responsibility to ensure items ordered are delivered and Ofcom requires postal operators to take all reasonable steps to minimise exposure of postal packets to risk of loss, theft, damage or interference in terms of an essential requirement.”

Citizens Advice assumed a statutory responsibility to represent consumers of postal services in 2014. It publishes a parcels league table, and the 2023 results showed that the rate of parcel problems is incredibly high. It says that urgent action is needed, but it focuses its work on better regulation of the parcel delivery sector, rather than on sentencing for individual offenders. Overall, there has been a more limited focus on the offenders themselves.

Contrary to the lack of parliamentary discussion, the issue has been gaining attention in the media. The Telegraph reported on “porch pirates” in December last year, arguing:

“It’s a crime born of modern lifestyles, the explosion in online shopping providing new opportunities for thieves.”

The technology and locker company Quadient submitted freedom of information requests to UK police forces seeking statistics on parcel theft. The average reported value of a stolen parcel is £115.07, which, with Citizens Advice claiming that 5.5 million parcels are stolen each year, suggests a hidden economy of up to £630 million. Police forces warn that just a fraction of parcel theft is actually reported, meaning nobody knows the true extent of the problem. Comparing data held by the police to Citizens Advice’s figure, it appears that fewer than 0.002% of parcel thefts are ever reported.

The material released in response to the freedom of information request also indicated that the most common time for thefts to occur is between 9 am and 5 pm. Forces report that people aged 22 to 34 are the most likely to have a parcel stolen, suggesting that many parcels are stolen from young people while they are at work. The highest average value indicated for a stolen parcel was—no surprise—from City of London police, at £1,128, almost 10 times higher than the UK average. Conversely, Durham constabulary reported an average of £9.78, less than a tenth of the UK average and £1,118 lower than City of London.

Given the growing concern among consumers, whose doorsteps are no longer safe places, it is clear that firm action must be taken. The new clause would introduce an aggravating factor for such offences, recognising that, while the thieves may not actually enter properties, they do trespass in the gardens or yards of their victims, who may well come face to face with them. Criminals should know that, if they are prepared to enter people’s property to steal—just like a burglar would—they risk a higher sentence than for theft from, say, a shop.

The Minister will be pleased to know that I have no intention of pressing the new clause to a vote, but I hope that she will recognise this growing crime in our communities and take action to address it.

[Laura Farris]

I thank the hon. Member for shining a spotlight on an increasingly common offence. I reassure him that we take theft offences seriously. He will be aware that the maximum sentence is already seven years.

Courts are already required to consider an offender’s culpability when sentencing, which allows sentences to reflect the circumstances of the individual case. As the sentencing guidelines are structured, cases of theft that indicate a high level of culpability include those where planning took place, where there was premeditation, where a vulnerable victim was deliberately targeted, or where the offending was undertaken as part of a group and the offender played a leading role. By contrast, a theft that took little or no planning—for example, some kids nicking a box off a doorstep—would be a lower-culpability offence. That is how we square the nature of the offending.

[Alex Cunningham]

I accept that, and a child who nicks a box off a step just needs a good talking to, in my opinion, but I illustrated in my speech that this activity is becoming more and more organised, and doubtless will be more so in the future. We have to think ahead and make sure that we are ready. It might be the organised crime thing of the year. If people can pick up parcels worth more than £1,000 from somebody’s doorstep, there is certainly a need for proper action.

[Laura Farris]

The guidelines already include a range of aggravating factors for theft, among which are stealing to order, an intention to cause harm to the victim personally, and where the theft was an act of revenge. Obviously, previous convictions of any kind will also be an aggravating factor and result in a higher sentence.

At the moment, the Government resist the new clause, on the basis that it treats doorstep theft more seriously than other theft in similar circumstances, such as the theft of something that had not been delivered but was still sitting in the back of the van. We think that should be treated comparably. At the moment, we think the new clause would lead to discrepancies in the law of theft, which would not be a good development. Therefore, with respect to the hon. Member for Stockton North for raising a perfectly valid point—and I rather regret that he might be right that this is a growing area of crime—I urge him to withdraw the new clause.

[Alex Cunningham]

As I have indicated, I will withdraw the new clause, but I am grateful for the opportunity to raise the fact that this is a growing problem in our society. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 41

Offence of assaulting a retail worker

“(1) It is an offence for a person to assault, threaten or abuse another person who is a retail worker, and who is engaged, at the time, in retail work.

(2) The offence under section 1 of threatening or abusing a retail worker—

(a) is committed by a person if the person—

(i) behaves in a threatening or abusive manner towards the worker, and

(ii) intends by the behaviour to cause the worker or any other person fear or alarm or is reckless as to whether the behaviour would cause such fear or alarm.

(b) applies to—

(i) behaviour of any kind including, in particular, things said or otherwise communicated as well as things done,

(ii) behaviour consisting of—

(A) a single act, or

(B) a course of conduct.

(3) No offence is committed under subsection (1) unless the person who assaults, threatens or abuses knows or ought to know that the other person is a retail worker and is engaged, at the time, in retail work.

(4) A person who commits an offence under subsection (1) is liable, on summary conviction, to imprisonment for a term not exceeding 12 months or a fine not exceeding £10,000 (or both).

(5) An offence committed under subsection (1) is aggravated if the behaviour constituting the offence occurred because of the enforcement of a statutory age restriction.

(6) Where, in proceedings for an offence under subsection (1), it is—

(a) specified in the complaint that the offence is aggravated by reason of the retail worker enforcing a statutory age restriction, and

(b) proved that the offence is so aggravated,

the court must—

(a) state on conviction that the offence is so aggravated,

(b) record the conviction in a way that shows that the offence is so aggravated,

(c) take the aggravation into account in determining the appropriate sentence, and

(d) state—

(i) where the sentence imposed in respect of the offence is different from that which the court would have imposed if the offence were not so aggravated, the extent of and the reasons for that difference, or

(ii) otherwise, the reasons for there being no such difference.

(7) Evidence from a single source is sufficient to establish, for the purposes of this section—

(a) whether a person is a retail worker,

(b) whether the person is engaged, at the time, in retail work,

(c) whether an offence committed under subsection (1) is aggravated because of the enforcement of a statutory age restriction.

(8) In this section—

“retail worker” —

(a) means a person whose usual place of work is retail premises, or whose usual place of work is not retail premises but who does retail work,

(b) includes, in relation to a business that owns or occupies any premises in which the person works, a person who—

(i) is an employee of the business,

(ii) is an owner of the business, or

(iii) works in the premises under arrangements made between the business and another person for the provision of staff,

(c) includes a person who delivers goods from retail premises.

“retail premises” means premises that are used wholly or mainly for the sale or supply of goods, on a retail basis, to members of the public.

“retail work” —

(a) in the case of a person whose usual place of work is retail premises, means any work in those retail premises,

(b) in the case of a person whose usual place of work is not retail premises, means work in connection with—

(i) the sale or supply of goods, on a retail basis, to members of the public, or

(ii) the sale or supply of services (including facilities for gambling) in respect of which a statutory age restriction applies,

(c) in the case of a person who delivers goods from retail premises, means work in connection with the sale or supply of goods, on a retail basis, to members of the public done during the period beginning when the person arrives at a place where delivery of goods is to be effected and ending when the person leaves that place (whether or not goods have been delivered),

(d) is not dependent on a person receiving payment.

“enforcement” , in relation to a statutory age restriction, includes—

(a) seeking information as to a person's age,

(b) considering information as to a person's age, or

(c) refusing to sell or supply goods or services,

for the purposes of complying with the restriction (and “enforcing” is to be construed accordingly),

“statutory age restriction” means a provision in an enactment making it an offence to sell or supply goods or services to a person under an age specified in that or another enactment.”—(Alex Norris.)

Brought up, and read the First time.

--- Later in debate ---

[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.

[Laura Farris]

I will be brief. I am grateful to the hon. Gentleman for his explanation of the new clause, which seeks to add disability, sexual orientation and trans-gender identity as protected characteristics for the purposes of the aggravated offences set out in the Crime and Disorder Act. I agree with him that it is important that our legal framework is robust and comprehensive when it comes to hate crime. It was for that reason that the Government asked the Law Commission to carry out a detailed review of hate crime legislation.

The Law Commission provided very helpful recom-mendations on the reform of hate crime laws in December 2021, and the Government intend to publish later this year a full response that will address each recommendation. In the interest of brevity, I hope the hon. Gentleman will agree that it would be premature to make decisions before the formal Government response is published. The Law Commission made 34 recommendations, and we want to respond to each one. Accordingly, I respectfully invite him to withdraw the new clause.

Criminal Justice Bill (Fifteenth sitting)

Debate between Laura Farris and Alex Cunningham

Committee stage
Tuesday 30th January 2024 Public Bill Committees

[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.

--- Later in debate ---

[Alex Cunningham]

I will be brief. As the hon. Gentleman said, this is a distressing new clause, but the Opposition believe it is very much necessary. I was briefed on it last week by the right hon. Member for Tunbridge Wells, and I was really shocked by what he had to tell me about the murderer David Fuller. The facts have been outlined to the Committee today. Fuller was of course jailed for murder, but that someone could carry out the assaults that he did on dead people and not be prosecuted beggars belief. None of us can comprehend the distress caused to the families of the deceased people Fuller violated. It is important that we ensure that anyone who acts as he did is suitably punished.

I note that the hon. Member for South Basildon and East Thurrock does not intend to press the matter to a vote, but I hope the Minister will be sympathetic to his cause and that of the right hon. Member for Tunbridge Wells. I reiterate our support for the new clause and ask the Government to bring forward a new clause, perhaps on Report, to deal with this most horrendous crime.

[Laura Farris]

I thank my hon. Friend the Member for South Basildon and East Thurrock for his speech. I am grateful for the opportunity—

--- Later in debate ---

[Alex Cunningham]

I begin by paying tribute to the work of my hon. Friend the Member for Bootle on the new clause, and the ongoing work of my hon. Friend the Member for Liverpool, Riverside (Kim Johnson), who we have already heard has introduced a private Member’s Bill to the House on the same issue. I am sure that Members across the Committee will share my admiration and respect for the campaigners from JENGbA, who have been tirelessly working on challenging injustices in joint enterprise convictions for well over a decade.

As we have just heard, the new clause mirrors the Joint Enterprise (Significant Contribution) Bill, which we hope will receive its Second Reading on Friday 2 February. I would prefer to see the Government making commitments on this matter, as it is a complex area of law and practice and any reforms will need careful consideration and monitoring to ensure that they are working, especially after the unexpected absence of change following the Jogee decision in 2016, which I will come back to later.

I am glad that the new clause has been tabled to enable a discussion in Committee, because the issue deserves more parliamentary time. Even though we have had many criminal justice Bills before this House in the past 10 years, all while alarms have been raised about continuing problems with joint enterprise law, Parliament has not engaged substantially with the issue for some time. During my tenure as shadow Justice Minister, I met the Centre for Crime and Justice Studies and the PCS, among others, and heard about ongoing challenges with joint enterprise convictions, despite the decision in Jogee and the very active collaboration between campaigners, legal practitioners and academics over the last decade. So I will be very interested to hear from the Minister about the work her Department has been doing in this area and, indeed, about any ongoing engagement it has had with campaigners, experts and practitioners who are collaborating on reform in this area.

The processes of prosecution and conviction in our criminal justice system should be fair, transparent and accountable, but joint enterprise law can be vague and confusing, and it can lead to apparently unjust outcomes. Some examples of individuals who are potentially at risk of being prosecuted under joint enterprise have been provided by Dr Felicity Gerry KC, who was the lead counsel in the case of Jogee. My hon. Friend the Member for Bootle has already outlined them to the Committee.

In 2016, when the Supreme Court ruled that the law of joint enterprise had taken a “wrong turn” for over 30 years, it restored the proper law of intention so that those who intended to commit or assist a crime, rather than those who might have foreseen it, could be properly convicted under joint enterprise law. These are all based on real cases, and as I have said, my hon. Friend has given the example of the taxi passenger getting out and becoming involved in a stabbing, or the woman who pulled somebody’s hair while trying to defend her boyfriend who may well have carried out a serious offence. Those individuals were charged under joint enterprise law, and they were at risk of extremely lengthy sentences, as if they were the primary offender, even when it is very difficult to discern how they contributed to the crime in question. Joint enterprise law has been used to convict young people who have not been present at the scene of the crime, and young people who listen to certain kinds of music, and there is a risk that such a trial focuses on character and culture, not contribution to a crime. My hon. Friend spoke about that in some detail. It is clear that joint enterprise law needs to be reformed in some way.

Last September, the CPS finally recorded and published a set of pilot data about joint enterprise cases, as a result of legal action by Liberty and JENGbA. While the results were shocking, they were, sadly, not surprising, as they confirmed much of what has been said by joint enterprise reformers for years. The data revealed that over half of those involved were aged under 25. Some 30% of the defendants in the cases were black, compared with the 4% of black people in the wider population, and black 18 to 24-year-olds were the largest demographic group identified in the pilot data. The data illustrated what we already knew about joint enterprise, which is that there is a serious racial disproportionality in its use.

The CPS pilot data suggests that black people are 16 times—I repeat, 16 times—more likely than white people to be prosecuted for homicide or attempted homicide under joint enterprise laws, which is a very significant divergence. I would be grateful to hear from the Minister the results of the data analysis, particularly about what she believes are the reasons behind the shocking disparities, given that the CPS has said that no conclusions about its decision making can be drawn from the pilot data. At the very least, we have to ask questions about the possibility that this level of divergence is at least in part caused by discriminatory practices in our criminal justice system. Looking at those figures, is the Minister confident that the framework for joint enterprise prosecutions is fit for purpose?

It has taken a number of years for the CPS to finally publish data on this important issue, but now that we have it, we must ensure that the Ministry of Justice is using that data to explore how it can best improve practice. I would also be grateful if the Minister could share any other plans for data collection and analysis in relation to the application of joint enterprise law, and anything she is aware of in the Ministry of Justice, the CPS or other Government body that is happening to progress this.

I was personally quite surprised at the scale of joint enterprise prosecutions, with the CPS data showing 680 defendants in 190 cases of homicide or attempted homicide across six of 14 CPS areas in just six months. That number is considerably higher than I would ever have anticipated. If the Minister has any thoughts on the number of prosecutions, I ask her to share them with the Committee. The high level of joint enterprise prosecutions demonstrates that at the very least it is an issue deserving of considerably more active consideration by parliamentarians and the Government.

Finally, I would be grateful if the Minister could speak to any discussions that she has had in her Department about the recent Fiaz case, in which the Court of Appeal suggested that a jury need not be specifically directed by the judge to consider the legal significance of a defendant’s contribution towards an offence. Dr Gerry has argued that the case highlights the need for additional legal clarity, as judges do not always direct juries to consider the significance of a defendant’s contribution toward an offence. Does the Minister also recognise the need for additional clarity in that area, and has her Department considered any means by which that may be achieved? It is an area with substantial cross-party recognition that more needs to be done to increase the fairness, transparency and accountability of prosecutions, and I look forward to hearing the Department’s position on the matter.

[Laura Farris]

I thank the hon. Member for Bootle for tabling new clause 16, which would amend section 8 of the Accessories and Abettors Act 1861 to provide that a person must have made a “significant contribution” to an offence committed as part of a joint enterprise to be indicted or punished as a principal offender. Its effect would be that the prosecution would have to identify the precise nature of the defendant’s role in aiding, abetting, procuring or counselling the commission of a crime committed in order to prove that the defendant had made a significant contribution—a threshold that need not currently be met.

Joint enterprise is a common law doctrine used in a variety of situations, most commonly to describe a situation in which two or more individuals have a common purpose to commit any criminal offence, or a secondary party encourages or assists the principal offender to commit an offence. It is a long-standing principle of criminal law that in either of those situations, both or all of the offenders may be held equally responsible and could be subject to the same penalty.

The hon. Member for Bootle has set out a number of examples, but I will start with a high-profile one. Members of the Committee may well recall the Victoria station attack in 2010, when a group of young men chased another young man over the ticket turnstile and down the escalator, where they set upon him. In the course of that attack, the young man was kicked in the head and torso repeatedly and was stabbed, and he died. At the end of it, the cause of death was multiple injuries, but it was impossible for the coroner to say who had struck the fatal blow with the knife or who had administered the fatal kick to the head. The whole group of assailants was put on trial; a number were convicted of murder and a number were convicted of manslaughter. That was classic joint enterprise, where they went with a common purpose to attack seriously an individual, and it could not be identified who had made the significant contribution, but the young man—the victim—was killed.

I say with great respect that R v. Jogee, which went before the Supreme Court in 2016 and to which the hon. Members for Stockton North and for Bootle both referred, was not an ordinary case. It was not even close to being an ordinary case. The Supreme Court reviewed 500 years of common-law jurisprudence on joint enterprise, and not only changed the law but issued really important guidance. I would like very briefly to talk the Committee through the framework that the Supreme Court applied, because it will help to explain why the Government will not accept new clause 16 today.

The Supreme Court said that it circumscribed the ambit of the offence and removed, as a matter of common law, the principle of parasitic accessory liability. To give an example that is sometimes given in case studies, if two people go to a farm with the purpose of stealing some farm machinery, and the farmer approaches them, and then person No. 1 pulls out a weapon and uses it on the farmer, that would not be decisive evidence that person No. 2 intended to kill or cause serious harm. That would previously have been the case under the principle of parasitic accessory liability, but the Supreme Court said that that went too far. In plain English, it said that joint enterprise cannot be inferred from the fact that it was foreseeable that a secondary offence would take place; there has to be an intention to assist. It said that the existence of foreseeability was something that the court should treat as evidence of intent, but was not necessarily decisive of it.

The judgment concluded by saying that joint enterprise essentially requires two elements. The first is a conduct element: the accessory must encourage or assist the crime committed by the principal. Secondly, the prosecution must show that the mental element existed, in other words that the accessory intended to encourage and assist the commission of the crime committed by the principal.

I have done a bit of a review of the case law—although I question whether it is helpful or unhelpful to go through case law during a Bill Committee in which nobody has the opportunity to read the case report—and am satisfied that there have been examples of case law since the Jogee case that show that approach being fairly applied. One example is of a group of young men who undertook a burglary on a care home. One person was tasked with searching the rooms before the others went in. In the course of events, one of the residents of the care home was brutally attacked. The young man who had done the search went in to try to stop it; he established that in court. He was convicted of burglary but not of the secondary attack, because that had not been his intention as part of the joint enterprise exercise.

--- Later in debate ---

[Alex Cunningham]

I shall be brief. My hon. Friends the Members for Bootle and for Swansea East have addressed new clauses 17, 18 and 49, and I pay tribute to them and to my hon. Friend the Member for Merthyr Tydfil and Rhymney for the work they have done on road traffic incidents. All three new clauses illustrate the need for a sentencing review for serious road traffic offences, and Labour is committed to doing that alongside sentencing for other serious crimes across the system.

The Minister and the Committee heard the tragic accounts outlined by my hon. Friends, including that of a runaway car that killed a young child. Sadly, in that case, there could be no justice for the child or her family as no offence related to the circumstances of her death. Surely that cannot be right. I am sure the Minister agrees that we have a duty to act in all three areas outlined in the new clauses. Has she examined the impact of those measures on cost, particularly in relation to the additional cost of prison places? If she has not, will she consider doing so before Report and share that information with the Committee, so that we are better informed? If she cannot support the new clauses today, I would be obliged if she told us what action, if any, her Department is considering for such offences and whether the Government plan to address them in the Bill at a later stage, or perhaps during Committee of the whole House on the Sentencing Bill, which I believe is due within the next few weeks.

There can be no doubt that the new clauses would close loopholes in the law that currently prevent families of loved ones killed in tragic circumstances from achieving either justice or closure. I look forward to the Minister’s response.

[Laura Farris]

I thank the hon. Members for Bootle and for Swansea East for compellingly setting out the impact of various forms of driving offence that are raised in our surgeries. When we talk about driving offences, there is often a narrow focus on things such as drink-driving for which the penalties are serious; we do not talk enough about things such as causing death by dangerous driving, which can be unbelievably reckless and irresponsible and cause the most serious harms.

The hit and run that the hon. Member for Bootle so powerfully described was an extension of dangerous driving. Whether panic, cowardice or other offences that the perpetrator is concerned about come to the fore, such incidents are absolutely devastating for the families of the victim. I therefore pay tribute to those hon. Members for the way in which they presented the new clauses.

It was helpful to hear that the hon. Member for Bottle is not wedded to the language he has used in his new clause. I had some remarks to make about that, but I will not spend too much time on that because of his indication. I do not know whether this applies to the hon. Member for Bootle too, but I understand that the hon. Member for Merthyr Tydfil and Rhymney is having conversations with the Department for Transport. I hope the hon. Member for Bootle will allow time for those conversations to happen and for us to engage with them before the Bill comes back. With all that in mind, I will lay out the framework for how we deal with the hit and run issue and I will then come on to the other points and where the Government’s thinking lies at present.

Criminal Justice Bill (Fourteenth sitting)

Debate between Laura Farris and Alex Cunningham

Committee stage
Thursday 25th January 2024 Public Bill Committees

[Alex Cunningham]

It is a pleasure to serve under your chairmanship, Sir Robert. My hon. Friend the Member for Birmingham, Yardley, made a detailed speech on new clauses 1, in particular, and 2, which were tabled by my right hon. Friend the Member for Kingston upon Hull North and my hon. Friend the Member for Walthamstow (Stella Creasy) respectively. We all recognise how sensitive and controversial the issue of abortion is. It is important that we get the law exactly right and ensure that any changes do not have unintended consequences. I am grateful to my colleagues for ensuring that the debate on the law around abortion remains very much a focus for us in this place as we strive to make the right changes. I commend the work of all colleagues across the House on this issue.

New clause 1 would disapply criminal law on accessing or providing abortion care from women acting in relation to their own pregnancy at any gestation, ensuring that no woman would be liable for a prison sentence as a result of seeking to end her own pregnancy. New clause 2 seeks to repeal sections 58 to 60 of the Offences against the Person Act 1861 and

“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”.

The Abortion Act 1967 renders lawful activities that would otherwise constitute a crime under the Offences against the Person Act 1861. It provides criteria under which abortions or terminations can legally take place. Labour believes that abortion is an essential part of healthcare that is highly regulated. Let me make it perfectly clear today that we do not believe that women should be jailed for getting an abortion when they are doubtless at their most vulnerable. For that reason, a Labour Government will provide parliamentary time for free votes on modernising abortion law to ensure that Members of Parliament can deal with this issue once and for all.

Many cases and reasons over the years have led us to this point, but I will highlight again the custodial sentence in the case mentioned by my hon. Friend the Member for Birmingham, Yardley. It was deeply sad, and something that we do not want repeated. This mother was jailed for illegally taking abortion tablets to end her pregnancy during lockdown. The Court of Appeal reduced her sentence, and she has since been released. The original judge decided that she should serve half her 28-month term in custody and the remainder on licence, but the Court of Appeal reduced the term to 14 months suspended. Dame Victoria Sharp KC, who heard the appeal, rightly noted that—we have heard this already this afternoon, but I make no apologies for repeating it—this was a case that called for “compassion, not punishment”. Carla Foster pleaded guilty to a charge under section 58 of the Offences against the Person Act 1861—administering drugs or using instruments to procure abortion—a plea accepted by the prosecution. As we have heard, she will carry that record throughout her life. Dame Victoria told the court that “no useful purpose” was served by detaining Ms Foster in custody and added that her case had “exceptionally strong mitigation.”

The Government have put forward an amendment to the 1861 Act in relation to the administering of harmful substances. We have just debated that and can all welcome that amendment, but it gives rise to the question: why have the Government not proposed any modernisation of the abortion offences, including the sentencing range? We are talking about a very similar provision of the same Act. Can the Minister say why the Government are not taking this opportunity, while the matter is under the spotlight and the subject of important debate, to remove custodial sentences?

We know that there are strongly held views on abortion—I have said that already—but it is rightly a matter of conscience for Members. The threat of prosecution is a real fear for women, and very sadly it is a fear that deters doctors from wanting to enter this fundamental area of women’s healthcare. It may help the Committee to know that health professionals, in the shape of the British Medical Association, support action, too. The BMA’s brief said that abortion should be regulated in the same way as other clinical procedures that are subject to an extensive range of professional standards, regulations and criminal and civil laws, but it stresses that it does not support criminal sanctions for women who procure and administer their own abortion, or for health professionals administering abortions in the context of their clinical practice.

I await with interest the Minister’s response to Committee members’ comments and those of the BMA. Specifically, I would like to know what action the Government plan to take to stop women being jailed for this offence. I am well aware that Members from across the House have been working together in an attempt to get this right and may well table a different amendment on Report. What discussions has the Minister had with Members? Is she open to further discussions? Is there any prospect of the Government bringing forward their own clause to right this wrong? She knows, as I do, that we must take action. There is a clear consensus on this.

[Laura Farris]

I am grateful to everybody who has spoken on this matter. Both new clause 1 and new clause 2 seek to decriminalise abortion. The Government maintain a neutral stance on these issues, but there are strongly held views across the House on this highly sensitive matter. They engage considerations of women’s rights and health, the rights of the unborn child, the viability of a foetus and the involvement of the criminal justice system. None of this is straightforward. It is an issue that, quite properly, Members will decide on according to their consciences, and I agree that it should be determined on the Floor of the House.

Let me begin by emphasising that the Government are committed to ensuring that all women in England and Wales have access to safe, regulated abortion services on the NHS under our laws. That includes telemedical abortions—sorry, I should probably refer to taking abortion pills at home when eligible, because “telemedical” is a confusing word.

As hon. Members know, in England and Wales the criminal offences relating to abortion must be read in conjunction with the provisions of the Abortion Act 1967, which provides exemptions to the criminal offences. The new clauses tabled by the right hon. Member for Kingston upon Hull North and the hon. Member for Walthamstow seek, in different ways, to decriminalise abortion for women acting in relation to their own pregnancies. If the will of the House is that the criminal law on abortion should change, whether by exempting pregnant women from the offences or otherwise, the Government would not stand in the way of such change, but we must of course be concerned with the fitness for purpose of any legislation proposed. With that in mind, I turn to the detail of the amendments, but it may be helpful if I first set out the relevant offences.

Under section 58 of the Offences against the Person Act, it is an offence for a pregnant woman, with the intent to procure her own miscarriage unlawfully, to take drugs or use instruments, and for another person, with the intent to procure the miscarriage of a woman unlawfully, to administer drugs or use instruments. Section 59 makes it an offence to supply or procure drugs, poison or an instrument intended to be used to procure a miscarriage.

Criminal Justice Bill (Tenth sitting)

Debate between Laura Farris and Alex Cunningham

Committee stage
Thursday 18th January 2024 Public Bill Committees

[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.

--- Later in debate ---

[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.

[Alex Cunningham]

In his evidence to the Committee, Jonathan Hall said:

“In fact, if you look at the wording of the Bill, the Secretary of State will be allowed to be ‘satisfied’—not beyond reasonable doubt, just satisfied—on exactly the same test that currently applies to judges”

in determining whether the test should be taken. He went on to say:

“There is obviously a fundamental issue there, which I can expand on, but there is also a really practical issue, because what is a terrorism offence is not always very obvious.”—[Official Report, Criminal Justice Public Bill Committee, 12 December 2023; c. 66, Q170.]

He was clear that the clause might not have all the bolts and washers that it needs to be totally effective.

Nevertheless, I thank the Minister for introducing the clause. As she said, it will allow the polygraph condition to be imposed where the Secretary of State considers that an offender convicted of murder

“poses a risk of committing a relevant sexual offence on release”,

and where an offender is

“serving a relevant custodial sentence in respect of an offence who…at an earlier time during that sentence was concurrently serving a relevant custodial sentence in respect of a relevant sexual offence”.

It will also extend the use of polygraph conditions for terrorist offenders by enabling the Secretary of State to extend polygraph conditions to offenders where the Secretary of State is satisfied—just satisfied: this was the issue that Jonathan Hall was concerned about—that the offence

“was, or took place in the course of, an act of terrorism, or…was committed for the purposes of terrorism.”

Labour supports the clause. Where polygraph conditions have proved to be effective with certain offender cohorts, we should certainly be enabling the courts to impose such conditions to improve public protection. The extensions included in the clause are sensible additions to the scope of polygraph conditions.

We are also happy to support the Government amendments to the clause. They clarify some matters in relation to service offences and offences with alleged terrorism connections in Scotland. I would be interested if the Minister could share any additional recent evidence that she may have of the effectiveness of polygraph conditions on public protection, particularly if there are any ongoing assessments by her Department of the current use of polygraph conditions in England and Wales. Conducting polygraphs can be an expensive and time-consuming process, so I am sure the Minister will agree that we need to ensure that there is a robust evidence base to show that expanding the conditions will contribute further to public protection.

Although we support the clause, I am left to ask the Minister: is this all there is? Offender management has been in disarray for years, especially following the failed structural reforms through which the Government have dragged it. The Public Accounts Committee said that the probation service was

“underfunded, fragile, and lacking the confidence of the courts.”

That was even before the additional serious challenges that it has faced throughout and following the pandemic.

The chief inspector of probation noted that the high-profile independent reviews into the supervision of the likes of Damien Bendall and Jordan McSweeney found

“broader systemic issues in both cases which we are seeing time and time again, both in our local probation inspections and thematic reviews. These included: overloaded practitioners and line managers with well above their target workloads; significant delays in handing over cases from prison to community probation staff, resulting in last minute and inadequate release planning; and incomplete or inaccurate risk assessments. This is the case at both the court stage and start of supervision, with very inexperienced staff being handed inappropriately complex cases with minimal management oversight.”

That is the reality of our probation service today. It is another criminal justice agency in deep crisis.

A properly functioning probation service—I will say more about this on a later clause—is essential to keep the public safe by managing the risk of offenders in the community. The Government have brought yet another justice Bill before us and have given themselves another chance to improve the probation service and provisions around offender management. The Minister will probably talk about the new investment in the probation service, but we have to set that in the context of the huge cuts that the service has suffered since the current Government came to power in 2010. They have missed a lot of opportunities with this Bill. As I said on the previous clause, the offender provisions in the Bill are so slight that their impact will be negligible.

We are seeing a Government who have simply run out of ideas and are not doing enough to keep our communities safe. Although we fully support the clause, I again put on record our disappointment at the lack of ambition that the provisions show when our justice system is in chronic and intractable crisis.

[Laura Farris]

On Jonathan Hall’s comments, there are two points to make. First, given his expertise, it is relevant to consider what he said about polygraphs in general, which is that

“polygraph measures for released terrorist offenders are a good thing.”––[Official Report, Criminal Justice Public Bill Committee, 12 December 2023; c. 64.]

You asked for an updated example of where polygraph testing had been instrumental, and he gave an example—in fact, I do not think it had been used—when he said:

“I was in favour of polygraph measures after Fishmongers’ Hall. It was partly on the back of one of my recommendations that polygraph measures were brought in. They always, or at least for a long time, existed for sex offenders. You will recall Usman Khan, who was clearly a very deceptive man. My view was that polygraph measures could be useful.”––[Official Report, Criminal Justice Public Bill Committee, 12 December 2023; c. 66.]

It is difficult to prove a negative, but they were brought in shortly after that.

Criminal Justice Bill (Ninth sitting)

Debate between Laura Farris and Alex Cunningham

Committee stage
Thursday 18th January 2024 Public Bill Committees

[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.

[Alex Cunningham (Stockton North) (Lab)]

I am grateful to the Minister for the introduction to this cohort of clauses, which I will address along with my amendment 64.

As the Minister has outlined, the clauses facilitate the transfer of prisoners in England and Wales to an overseas jurisdiction and make provision to ensure the oversight of any agreement with a foreign country under which the UK prisoners will be held. Sadly, the Bill and accompanying notes do not provide the detail of exactly how the scheme will work, who the partner countries will be, nor where responsibilities will actually lie.

The charity Justice has provided some useful context. It says:

“In advancing his policy the Home Secretary made reference to arrangements which existed between Belgium and Norway on the one hand, and the Netherlands on the other, within the last two decades, as a successful means of increasing prison capacity. In fact, neither was an overwhelming success in terms of either rehabilitation or reduction in prison overcrowding. That is despite the fact that, particularly in the case of Belgium and the Netherlands, there were linguistic and cultural similarities, and geographical proximity. There is no guarantee that this will be true of any future arrangements that the United Kingdom may enter into.

Indeed, it is understood that the Ministry of Justice has been in talks with Estonia about using space in its prisons. While one of these is located in the capital, Tallinn—itself a three-hour flight from London, with no direct flights from elsewhere in the UK—the other two are 150-200km away by road. This is one illustration of the difficulties which will arise in facilitating family visits to those imprisoned abroad wherever they are, and of course access must also be provided to HM Chief Inspector of Prisons, Independent Monitoring Board members and legal representatives.”

I will return to some of those issues later, but perhaps the Minister can share with the Committee which countries the Government are actually negotiating with. More importantly, perhaps she can give us some insight into how the very real barriers to this policy will be addressed.

Amendment 64 in my name and that of the shadow Justice Secretary, my hon. Friend the Member for Birmingham, Ladywood (Shabana Mahmood), proposes limitations on the types of prisoners who can be transferred. My hon. Friend the Member for Birmingham, Yardley has addressed very specifically the issue of women, and I welcome the fact that the Minister has agreed to take that away. I am sure we could support any amendment that she cares to bring forward on Report in order to exclude women from being accommodated abroad.

Others we would have excluded are prisoners with less than 180 days or six months of their custodial period left to serve, those serving an indeterminate sentence of imprisonment or detention for public protection, and those participating in any proceedings before a court, tribunal or inquiry where it is not reasonably practicable for the participation to take place in a prison in a foreign country. Releasing prisoners from foreign prisons back into the community in the UK would also pose severe challenges for probation and other services in ensuring that the necessary resettlement support is in place on their return.

The services and support that prisoners typically need on release include accommodation, welfare and employment support, ongoing treatment of drug and alcohol addictions, and health and social care. Arrangements to effectively monitor and supervise the individual unlicensed in the community also need to be put in place ahead of release. Making arrangements for the provision of these services requires effective co-ordination between the prison offender manager and community offender manager. In England and Wales, both of these roles are provided by His Majesty’s Prisons and Probation Service.

Releasing an individual directly from a foreign prison into the UK would require co-ordination between services based in two separate jurisdictions. That would present considerable logistical challenges and may lead to mistakes being made and the necessary support not being put in place. That could put the individual and others at risk and increase the likelihood of reoffending.

Excluding prisoners with a period of less than 180 days to serve from being issued with a warrant would help ensure that prisoners continue to be released from UK prisons into the community. The sentences of imprisonment for public protection and detention for public protection were abolished in 2012. However, the abolition was not retrospective, which means that thousands of people remain in prison, yet to be released after having been recalled to custody.

The plight of those prisoners, serving a sentence that Parliament has not deemed fit to remain on the statute book, has been well documented in the authoritative report of the cross-party Select Committee on Justice. In 2022, there were nine self-inflicted deaths of IPP prisoners, the highest number of self-inflicted deaths among the IPP prison population since the introduction of the sentence. As of December 2022, there have been 78 self-inflicted deaths of IPP prisoners since the sentence was introduced in April 2005. That is 6% of all self-inflicted deaths during the period. Forcing IPP and DPP prisoners to serve their sentences could further increase the risk of suicide and self-harm if they are accommodated abroad. Furthermore, it would make it extremely difficult for them to access the courses and interventions they need to demonstrate reduced risk and access timely legal advice and support through the parole process.

The amendment would also enable the Secretary of State to exclude a prisoner from being issued with a warrant if they are satisfied that the prisoner should continue to be detained in a domestic prison for the purposes of receiving instruction or training, which cannot reasonably be provided in a prison in a foreign country. That may include prisoners who are engaged in higher education that could only be provided in the UK, or prisoners involved in an employment scheme with the prospect of further training or a job opportunity on release in the UK.

Transferring prisoners abroad would have an impact on a prisoner’s access to legal advice, legal remedies for prison-related issues or their ability to participate in any ongoing legal processes related to their conviction or sentence at home, including the parole process. That is contrary to European prison rule 23 and Mandela rules 41 and 61, which give the right to accessible, timely and confidential legal advice. Being sent abroad would have a significant impact on someone being able to meaningfully participate in any legal process.

There is history in the immigration context of the Government legislating to say that people can pursue appeals against being removed and deported and then having to do so after actually being removed to their home countries. In those cases, the courts have ruled that, in practice, that is not possible and is therefore a breach of the Human Rights Act 1998 and the European convention on human rights. The Law Society has expressed concern that certain groups of vulnerable prisoners could be issued with a warrant to serve their sentence in a foreign country. That includes those with health issues, such as individuals who are pregnant or disabled, and those who have mental health or learning difficulties. There are currently no explicit safeguards or guarantees to protect against that. How will the Minister ensure effective resettlement arrangements under the provisions?

Prisoners with primary caring responsibilities could be issued with a warrant to serve their sentence in a foreign country. Transferring UK prisoners abroad will have a significant impact on their ability to maintain family ties. The Farmer review found family relationships to be the “golden thread” to help reduce reoffending.

There is recognition in the Government’s impact assessment that the policy will need to

“ensure prisoners’ rights to family life are protected in accordance with Article 8 of the European Convention on Human Rights, including access to visitation on par with what would be provided in HMPPS.”

However, the impact assessment goes on to say:

“It has not been determined who would bear the cost of these visits.”

Can the Minister offer any clarification on who is expected to foot the bill? Does she expect the children or the families of those imprisoned abroad to have to finance a trip abroad to visit their loved ones? Families and loved ones already struggle to meet the cost of visits to prison in the UK and they are unlikely to be able to meet the additional costs or logistical challenges involved in visits abroad. Imagine somebody having to spend five hours travelling to a foreign prison for a one-hour visit and then having to spend another five hours travelling back. That is total nonsense.

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[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.

[Alex Cunningham]

Is that a confirmation, then, that no prisoners will be moved to countries not covered by the ECHR?

[Laura Farris]

That is my understanding.

[Alex Cunningham]

With respect to the Minister, this is a fundamental point going forward. As I said in my speech, if prisoners are removed to a country—Rwanda, let us say—they will not have the same protections as they would have if they were moved to Holland. It is important that the Government clarify exactly whether people will be removed to jurisdictions outside the ECHR.

[Laura Farris]

I thank the hon. Gentleman, who makes a fair challenge. I am only aware of exploratory conversations with European countries bound by the European convention on human rights. I understand that there will be no partner country that is not also complying with the European convention rights, but I think he deserves clarity on that point.

[Alex Cunningham]

I appreciate what the Minister is saying; she has been very clear about the point being well made. But if prisoners cannot be removed to a country that is not covered by the ECHR, perhaps that needs to be stated in the Bill.

[Laura Farris]

It is in the Bill that the Bill itself is compliant with the European convention on human rights.

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[Laura Farris]

I reassure my hon. Friend that we are making significant progress on that. It is a good point. There has been an acceleration in that process. I have some data here. Between January 2019 and September 2023, over 16,000 foreign national offenders were removed from the United Kingdom. In the last 12 months alone, that returns rate increased by 20% when compared with the previous 12 months. There has been an acceleration in the returns agreements.

We have also expanded the early removal scheme, so that we can remove FNOs up to 18 months before the end of their sentences. The Home Office has deployed more caseworkers to focus on prison removals; we also have prisoner transfer deals with some countries, including Albania, that are already operational. I want to provide reassurance that that work is continuing at pace.

[Alex Cunningham]

I accept the points about foreign prisoners, but many are European nationals who have families in the UK. We cannot have a one-size-fits-all solution to this situation. I hope the Minister will acknowledge that.

[Laura Farris]

The provisions on the removals of foreign nationals are set out in the 2012 immigration rules; it is section 339 that governs removal. If the sentence has been two years or more, only truly exceptional circumstances would allow them to stay. The simple fact of somebody who has committed a category A or B—

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[Laura Farris]

I will have to get back to the hon. Gentleman on that point.

[Alex Cunningham]

I am grateful.

The right hon. Member for Chelmsford made an interesting contribution about gangs. I agree that it is often necessary to move people to different areas to break gangs up—that is absolutely essential. I do not know whether the Government intends that such people would be a popular cohort to be moved abroad to foreign prisons, but perhaps the Minister will address that when she winds up the debate.

The Minister referred at some length to my amendment. I am not convinced that we should not press it to a vote. I will press it, because we cannot rely on policy unless it is written down. My hon. Friend the Member for Birmingham, Yardley said the same and illustrated exactly why we cannot depend on policy. Policy changes all the time, so we need to nail down the provisions in the Bill and who will be included and excluded. Someone may table an amendment on Report in relation to whether women should be sent abroad to serve their prison sentence, but it is important to address the issue of foreign nationals—I spoke briefly about this earlier—who have families here, are in married relationships here and may be European citizens who are entitled to be here. I accept what the Minister says about the two-year threshold and everything else, but we cannot just say that it is okay to send men off to foreign prisons because they are foreigners—that does not wash at all. I will leave it at that, but I would like to press the amendment to a Division.

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[Alex Cunningham]

I have already addressed many of the principles pertaining to the Government’s proposals in this part of the Bill, so I will largely confine my remarks to amendments 65 to 68, with some relating to clause stand part.

Amendment 65 would require the controller to make a report to the Secretary of State on any breaches of the arrangement between the foreign country and the UK. Clause 28 provides for the Secretary of State to appoint a “controller” role to keep under review, and report on, the running of any rented prison spaces abroad. It also extends the power of His Majesty’s chief inspector of prisons to inspect and report on the conditions of any such spaces.

As it stands, the Bill places a great deal of unaccountable authority in the hands of the Executive to make provision for any arrangement by means of secondary legislation. It is silent on how those subject to this arrangement will be treated. Similarly, it provides no guarantee that the prison rules in secondary legislation, which govern crucial issues including segregation, complaints and the use of force, would apply. I would hope that the Government would agree that, given the potential human rights implications, any agreement made between the UK and a foreign state should be subject to full parliamentary scrutiny and oversight, and to guarantees of compliance with existing human rights standards and obligations.

Furthermore, the implementation of any agreement by a foreign state will need careful monitoring and oversight to ensure compliance. It will also be vital to ensure that any breach of the agreement by the foreign state is promptly reported and acted on. Amendment 65 would help to enable that by requiring the controller to report any breaches of the arrangement to the Secretary of State.

The Bill should also be amended to ensure that it is the UK’s responsibility to investigate and bring to justice any ill-treatment or torture, should it occur under this arrangement, in line with the UK’s obligations under the Human Rights Act 1998 and the UN convention against torture. It should also require that any prisoner transferred to serve their sentence in a foreign country would have to be held in and have access to equivalent conditions and the same quality and range of services afforded to prisoners held in England and Wales, as mandated under Prison Rules 1999. As it stands, nothing in the Bill and related documents gives any indication that the same legal standards and rights in relation to treatment of prisoners, as set out in the prison rules, would apply.

I would be obliged if the Minister would address a number of related questions. Will she confirm the need for the operation of the scheme to be under constant review and that Parliament is entitled to reports on how successful or otherwise it is? Will British prison rules apply to UK prisoners sent abroad? Does she accept that it should be the UK authorities that investigate any allegations of ill treatment or torture of prisoners accommodated abroad under her policy?

I know that services, particularly work and access to rehabilitation services, are very limited in UK prisons because of the crisis in the service, but does the Minister agree that any prisoners sent abroad should have access to at least the same level of services as those held at home?

Amendment 66 would ensure that the prisons inspectorate “must” conduct the duties specified in proposed new subsection 5D in section 5A of the Prisons Act 1952, and would ensure its consistency with the legislative basis for its role in England and Wales.

We are concerned that the oversight of both the controller and His Majesty’s inspectorate of prisons will ultimately be subject to negotiation with a relevant partner country. The wording in the Bill relating to the powers of HM inspectorate of prisons differs from the Prisons Act in that it states the chief inspector “may” inspect rather than “shall” inspect. The implication is that inspections could take place only by invitation of the foreign state rather than as a statutory requirement. That leaves open to future negotiation crucial aspects of HMIP’s role and methodology, such as its ability to conduct unannounced inspections, to speak to prisoners in private and to access records such as those relating to the use of force. That would mean a lower standard of independent scrutiny would be applied to the treatment and conditions for UK prisoners held under such arrangements. It would fall short of the UK’s obligations under the optional protocol to the convention against torture and other cruel, inhuman or degrading treatment or punishment—OPCAT—which establishes requirements for independent detention monitoring to be conducted by a national preventive mechanism.

In the UK, the national preventive mechanism was established in 2009 and HMIP is one of the bodies designated to it. Amending the Bill to ensure that HMIP’s role can be performed in accordance with its duties under OPCAT would provide an important safeguard to ensure rigorous independent scrutiny of the treatment and conditions for prisoners held under these arrangements. Will the Minister guarantee that HMIP will be able to conduct its crucial role to the same standards that we would expect for any inspection on home soil, with unfettered access to prisoners, their records and staff?

Amendment 67 would ensure that HM inspectorate of prisons can inspect escort arrangements under which prisoners are transferred to foreign prisons. Clause 28 specifies that the chief inspector may inspect or arrange for the inspection of any prisons where prisoners are detained under an arrangement between the UK and a foreign state. Our amendment would bring the legislation into line with the inspectorate’s powers in relation to prisons in England and Wales by also enabling it to inspect or arrange for the inspection of escort arrangements.

The inspectorate’s powers to inspect escort arrangements were made by amendments to the Prisons Act in section 46 of the Immigration, Asylum and Nationality Act 2006. It is particularly important that the inspectorate should be able to inspect the escort arrangements for the transfer of UK prisoners to foreign prisons. We had a debate the other day about escort arrangements and the security of staff, which comes into play here. How do we ensure the safety of the staff of whichever organisation is moving people from this country to another?

A foreign state with which the UK makes an agreement could potentially be many thousands of miles from the UK. The transfer of prisoners could involve a lengthy journey involving a variety of modes of transport, including potentially prison vans, planes, trains and ferries.

As countless HMIP inspection reports show, escort, particularly when a person is being transferred against their will, can pose a number of risks to prisoners, including the mixing of men, women and children in the same transport—although I acknowledge that children will not be sent abroad; poor information sharing with escort services of the needs and risks presented by prisoners; poor conditions; poor escort safety and lack of seat belts; risk of suicide and self-harm, which may be exacerbated by long journeys under stress; lack of food, drink and comfort stops; poor treatment by escort staff; failure to address health and welfare needs; overuse of restraints with potentially fatal consequences; poor complaints processes and accountability; and damage to prisoners’ property.

The potential for trouble appears limitless. I hope that the Minister will recognise that she needs to act now to ensure all the necessary processes are in place to make sure that it is contained. Failure to do so could result in all manner of actions against the Government, including civil actions by prisoners who could well have grounds for going to court because they have not been treated properly in line with the UK law under this new policy.

12.30 pm

I turn to amendment 68. This probing amendment would clarify how the Government intend to apply their obligations under article 2 on the right to life of the Human Rights Act, through ensuring that the duties of the coroner also apply to any death involving a prisoner subject to a transfer agreement with a foreign country.

It is our view that the nature of the arrangement to send individuals to overseas prisons will establish the UK’s jurisdiction over any deaths that occur. Given the unprecedented nature of these arrangements, it is crucial that the responsibility of coroners to investigate overseas deaths be established clearly in advance, otherwise it would invite significant uncertainty and likely legal challenge if any individual were to die while imprisoned overseas. Furthermore, such a move will ensure that the coronial system is prepared to address the practical challenges of holding such an inquest, which are likely to include challenges in obtaining evidence and witness statements.

I move on to my comments on clause stand part. I am well aware that there is a school of thought that says that prisoners give up their rights to everything when they commit a crime and are deprived of their liberty, but I hope the Minister will agree with me that they do have rights and we have a responsibility to ensure they are not deprived of them, whether in a prison on home or foreign soil. It is critical that we nail down exactly how UK systems will be implemented abroad. I see that as all but impossible if we do not specify in the Bill the necessary requirements for that to happen.

The Minister is likely to say that we have to have a level of trust in the agreement with any foreign Government to stick to the standards required, but I am not so sure it is as simple as that. There will be huge costs associated with what may well just be a Government experiment—costs relating to travel and escort services, the fees to the receiving prison, potential costs for families of prisoners to travel abroad to visit, plus all the costs related to managing, inspecting and reporting on the services provided.

Put simply, the choice to send British prisoners abroad is a serious endeavour that requires meaningful protections to prevent abuses. It is also likely to come at substantial cost to the taxpayer, with the Government’s own best estimate of cost being £24.4 million per year to house a tiny number—600 prisoners. That amounts to £40,700 per prisoner, approximately £8,000 less per prisoner than to house them in a domestic prison: figures which are difficult to reconcile given that incidental costs like transportation will be additional to ordinary prison expenditure.

In any event, the proposal is going to create only a small number of spaces, meaning that it is not just an easy answer to the overcrowding crisis. Rather, if prisoners end up being mistreated or are simply unable to engage in rehabilitation and other processes that can help get their lives back on the straight and narrow, it could lead to more problems than it solves.

If the Minister is not prepared to accept our amendments, I ask her to take them away and consider exactly how she will fulfil her duties under the law in relation to UK prisoners accommodated abroad, and perhaps bring forward her own amendments on Report, which we would happily consider.

[Laura Farris]

I thank the hon. Member for his amendments, which I will address before turning to clause 28. I hope that nothing we have said and nothing that appears in the Bill would suggest for a moment that any of the 600 prisoners who end up being transferred to a foreign prison would not have their human rights respected. We remind the hon. Member that prisoners remain the responsibility of the Secretary of State. Although the matter of the exact arrangements will need to be negotiated, we are committed to ensuring parity for prisoners—that they have access to the same regime and the same rehabilitation opportunities—as part of any agreement.

I thank the hon. Member for his views on performance management mechanisms. We agree that they need to be in place. The controller role stands alongside our wider plans for robust and effective scrutiny mechanisms, including making arrangements for independent inspection and monitoring in rented prison places. The UK-appointed controller will be responsible for reporting to the Secretary of State on the running of a rented prison via HMPPS performance-monitoring mechanisms, and will be expected to report to the Secretary of State on the running of a rented prison overseas. I want to provide some reassurance that we have begun the process of engaging a number of existing inspection monitoring bodies in England and Wales to discuss how best that service might be provided.

My second point is that we are committed to ensuring that Parliament has appropriate opportunities to scrutinise any treaty that we negotiate with a partner state. Our current intention is that any future treaty establishing rental arrangements, including monitoring and control, would be subject to ratification, which would of course be subject to further scrutiny by Parliament, according to the procedure set out in the Constitutional Reform and Governance Act 2010.

On amendment 66, clause 28 currently only extends the inspectorate’s remit and does not place an obligation on it to inspect rented prisons overseas, as the shadow Minister pointed out, but we fully agree that rented prison places must be subject to effective inspection and we are ensuring that an appropriate inspectorate will be able to conduct such inspections. That commitment is made with due regard to the inspectorate’s need for operational independence and freedom of access to prisoners, including in private as the shadow Minister described, and to prison facilities. We are considering the logistical realities that that kind of access implies.

We are already working with HM inspectorate of prisons to discuss how best to ensure that the inspections will take place. The exact arrangements will be subject to negotiation and agreement with a partner country, at which point, if necessary, we can confirm what the law ought to say on this matter and make amendments as necessary using the delegated power that we are seeking in clause 29.

[Alex Cunningham]

The Minister just said that these rights and arrangements would be “subject to negotiation”. Could she explain what she means by that? Does that mean that some rights and arrangements may well not be available to prisoners or to inspectors in carrying out their duties?

[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.

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[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.

[Alex Cunningham]

I have listened carefully to what the Minister said, and an awful lot of it seems to be about something that might happen in the future or be subject to negotiation. Many of the measures that we are pushing for are in our amendments; as I said, I invite the Minister to take the amendments away and consider them in some detail. Being “subject to negotiation” is not good enough. We actually need to know that the necessary access or protections will actually be in place.

I will not press any of the amendments to a vote—with the exception of amendment 66, because I think that the inspector must carry out the necessary inspection. I accept that the Minister said that that is the intention, but “intention” is not good enough; that provision needs to be in the Bill. I beg to ask leave to withdraw amendment 65.

Amendment, by leave, withdrawn.

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[Laura Farris]

Before I come on to clause 29, I want to address one point made by the shadow Minister, as this is part of the same family of clauses. The reference to negotiation does not mean that things like inspection and equivalent conditions themselves are a matter for negotiation—in other words, that we might not have any of those things. We are going to insist on all those things, but the terms are the matter for negotiation—what the inspection regime would look like, for example. It is not that we would not be monitoring what happens in a rented prison space overseas. The mandatory language in clause 28(1) about the use of a controller goes to that on the issue of oversight.

[Alex Cunningham]

I am really quite interested because the issue is about negotiations. Is the Minister actually saying that there will be no agreement with any country that cannot provide the same standards of service, accommodation and access that a person would have in the UK?

[Laura Farris]

I cannot say that the programme would be exactly the same, but we are looking for equivalence. We even set out in the Bill that there will be a supervisory arrangement already, and I talked in the previous debate about what inspection would look like and who we are engaging on that.

Clause 29 creates a delegated power that would allow the Government to make future legislative amendments strictly for the purposes of implementing a future prison rental agreement. We are currently in exploratory talks with potential partner countries, but, as previously noted, formal negotiations have not commenced. While we have sought to draft broad enabling provisions that will facilitate any future arrangements, it is impossible to be certain on what legislative changes will be necessary to give effect to the agreements prior to the conclusion of negotiations and the subsequent agreement with a partner country on those terms.

For that reason, we are seeking a delegated power that will allow us to amend legislation for the sole purpose of complying with the terms of any future prison rental agreement that we sign. That is to ensure that the UK is able to swiftly comply with our obligations under such agreements. Parliament will have the opportunity to scrutinise our proposed use of any delegated power by means of the proposed affirmative procedure when amending primary legislation. That will ensure that Parliament may be content that such amendments are made pursuant to future prison rental agreements.

It is not possible, at this stage, to anticipate the outcomes of any negotiations, and any anticipation could significantly bind negotiating power. It is also not clear which matters will remain the responsibility of the Government and which will fall to other jurisdictions. Without this delegated power, further primary legislation would need to be taken through Parliament at the conclusion of individual negotiations to implement the international agreements. That would impact the Government’s ability to act swiftly.

The delegated power forms an essential part of the future-proofing framework that we have designed to accommodate future negotiations and arrangements with partner countries. It ensures that Parliament will still have sufficient opportunity to scrutinise the use of the powers and to feel content that the powers are strictly limited to use further to prison rental arrangements agreed with the partner country.

[Alex Cunningham]

My concerns are the same as those I expressed about previous clauses. I remain concerned that items not in the Bill are being delegated to secondary legislation. We are not going to oppose the clause, but the Minister needs to bear in mind all the things that have come before and to reassure us that there will not be any abuse here, as what should be important primary legislation is being pushed upstairs to a Delegated Legislation Committee.

Question put and agreed to.

Clause 29 accordingly ordered to stand part of the Bill.

[Laura Farris]

On a point of order, Ms Bardell. What are the timings for this morning’s sitting?

Criminal Justice Bill (Eighth sitting)

Debate between Laura Farris and Alex Cunningham

Committee stage
Tuesday 16th January 2024 Public Bill Committees

[Laura Farris]

Let me revert to the hon. Gentleman in writing on that point. I conceded that there is no guarantee that every single offender will attend their sentencing, but the Bill provides a power for a Crown court judge to order that to happen in certain circumstances. It will also ensure that serious offenders who fail to attend receive punishment. That sends the clear message that offenders are expected to attend their sentencing hearing, and that the wider public have the right to see that justice is done. I commend the clause to the Committee.

[Alex Cunningham (Stockton North) (Lab)]

It is a pleasure to serve under your chairmanship, Ms Bardell. I assure the Minister that in the interests of a continuing atmosphere of co-operative working, I, like my hon. Friend the shadow Minister for policing, will be constructive in my comments, to enable the Government to justify their legislation by explaining how it will work. Where we have reservations or see the need to offer new ideas, we will do so to help them get it right. I am sure that they are as keen as we are to improve this Bill and ensure it is fit for purpose. Judging by the huge number of Government amendments, they have already recognised at least some of its weaknesses.

As outlined, the first part of clause 22 enables the Crown court to directly order an individual to attend their sentencing hearing by creating an express statutory power to make an attendance order. According to the Library research document, and as the Minister mentioned, any adult who refuses to attend without reasonable excuse will commit a contempt and therefore faces a maximum penalty of an additional custodial sentence of up to 24 months. Any child who refuses to attend faces a penalty of £2,500, but I wonder how a child will ever be in a position to pay such a penalty, particularly if they are given a custodial sentence.

The second part of the clause creates an express power for judges to require prisons to produce adults to court for sentencing hearings. It also makes it clear that prison officers and prisoner escort officers may use reasonable force to produce an adult to court for their sentencing hearing where that is necessary and proportionate. However, the final decision on whether to use reasonable force remains with the prison and escorting staff. Children will not be subject to use of reasonable force for this purpose, in line with domestic policy, guided by the Taylor review of 2020 and the UK’s commitments under the UN convention on the rights of the child. We can only welcome that.

There are many questions that the Minister needs to answer about how easy it will be to implement this policy. We will not oppose the clause, but would like her to spell out how practical it is, and what alternative provision she has in mind if it is impossible to compel a defendant to attend a sentencing hearing.

There is nothing in the Government’s explanatory notes about the resources needed to deliver the policy, and I hope that the Minister will address that. If it is not resourced, it simply will not happen, so we seek clarity there. Likewise, there is little if anything about how the staff who will be at the sharp end of delivering a defendant to court will be protected.

We would also like to understand what the new law would add to judges’ existing powers to compel people to attend their sentencing hearing. Above all, we would like to explore with the Minister whether this new law could actually work, and whether it is in the best interests of the victims. We do not want them to be further traumatised by the sentencing hearing.

We know why this proposal is being brought forward. The Minister talked about a number of high-profile cases in which the defendants refused to attend their sentencing hearing. There have been many: Zahid Younis, in September 2020, sentenced for the murder of Henriett Szucs and Mihrican Mustafa; Koci Selamaj, in April 2022, for the murder of Sabina Nessa; Jordan McSweeney, in December 2022, for the murder of Zara Aleena;Thomas Cashman, in July 2023, for the murder of Olivia Pratt-Korbel; and of course Lucy Letby, in August 2023, for the murder and attempted murder of 13 infants. In those cases, the families never had the chance to look the killer in the eye, or to spell out the effects of their loss.

Perhaps that is why the witnesses we questioned at the start of this Bill’s progress in Committee were supportive of the new law, though from the quotations I am about to use from their evidence, it is clear that many questions are still to be answered. Baljit Ubhey, director of strategy and policy at the Crown Prosecution Service—apologies if I mispronounce these names—described it as

“an important measure, given some of the high-profile cases we have seen and the impact they have had on victims.”

She went on:

“We will have to look very carefully at how we apply for that power—which allows the court or the prosecutor to apply for compulsory attendance—and seek victims’ views”.

Others have made that point this afternoon. She went on:

“The consideration to think about is whether that would cause extra violence. There is something in the Bill about the use of force, which prison custody officers would need to think about”.

I will address that in detail later. Baljit went on:

“I can see why it is in the Bill, but we will have to wait and see how it operates in practice.”––[Official Report, Criminal Justice Public Bill Committee, 12 December 2023; c. 20, Q46.]

Baroness Newlove, the Victims’ Commissioner for England and Wales, expressed concerns about victims:

“In terms of victims and their families, both personally and professionally assumptions are made about them when people do not even understand the victim’s journey. I get annoyed at that. I think this is a very important point, because victims sit there for weeks…on end, listening to evidence and having no voice at all. Part of the victims code is to have the victim impact statement, and there is the ability to read it out if there is conviction. I think it should be respected that the family have that kind of relationship, because they have listened to that evidence about their loved ones.”

She went on:

“I also think that you do not know how to judge an offender. They could say that they are coming in the dock and then not play ball. I have seen for myself—evidence shows this—that even through the court trial they will turn their backs, goad you and do everything. If it is still to the judge’s discretion and direction, I would like—I have said this previously—for the judge to own the courtroom if the offender does play in the dock and does not respect the perimeters. Victims’ families are told to respect the perimeters of the courtroom, and the judiciary needs to have that respect. If it happens that they do not want to turn up in dock, a deadline should be put on what is going on. If not, put something in their cell if they are in the court building.”––[Official Report, Criminal Justice Public Bill Committee, 12 December 2023; c. 25, Q59.]

I ask the Minister to address Baroness Newlove’s concerns, which many of us in Committee share, and specifically the concern about how a defendant kicking off will be dealt with under this proposed new law.

Dame Vera Baird KC, the former Victims’ Commissioner, questioned the need for the clause at all:

“As I am sure the Ministers know very well, this adds absolutely nothing to the current law. A judge can order somebody to come into court. If they do not, it is a contempt of court.”

When I pointed out to her during the evidence session that the

“clause actually talks about using ‘reasonable force’”,

she responded:

“But you can already use reasonable force. As long as it is proportionate and necessary, the Prison Service is entitled to use reasonable force to fulfil the orders of the judge. If the judge says, ‘You must come’ and you do not come, it is, No. 1, a contempt of court”—

just as in the proposals before us—

“And guess what the maximum sentence is for a contempt of court? It is two years, exactly as it is in the Bill. If a person does not want to come and the officers regard it as necessary and proportionate to use force to bring them, they are entitled to do exactly that to fulfil the judge’s requirements. There is really no change here.

I well understand the sense from a victim that they want this moment—‘Right, he’s going to face what he’s done now and I’m going to get some benefit from that.’ But the reality is that you cannot capture somebody’s mind, can you? There are always risks that people who are dragged into court might be a nuisance.”

Later on, she said:

“I think it was the former Lord Chief Justice John Thomas who suggested that a better way was to make sure that if the person does not come out of the cell, he is in a cell to which the sentencing can be broadcast. He cannot get away and the victims know that he has, as it were, faced his moment.”––[Official Report, Criminal Justice Public Bill Committee, 12 December 2023; c. 59-60, Q156-157.]

I hope that the Minister will take the time to outline just what her proposal adds to the law, and what alternatives there are to forcing an angry, abusive and possibly violent defendant to sit in the dock.

I will now move on to proposed new section 41B(4) of the sentencing code, which refers to using “reasonable force” to ensure that a defendant attends court. We heard evidence from Mark Fairhurst, chairman of the Prison Officers Association, on the issue. Members will recollect that he told the Committee that he saw no problem for his members in delivering their role in the policy. He told us:

“It is quite easy for prison officers to force someone to attend court; we restrain them on to a cellular vehicle and then they are taken to court. The problem arises at the other end because the courts are run by private security firms now. Have they got the staffing levels needed to take someone who has been recalcitrant off a bus and into a cell in the court? Have they got the resources to drag them into the dock if they are still displaying violent tendencies? Will that disrupt proceedings in the court? Will they be abusive to victims? Will it be distressing for the victims of crime to witness that in the dock? There are a lot of issues we need to look at.”––[Official Report, Criminal Justice Public Bill Committee, 14 December 2023; c. 96, Q39.]

I have made some inquiries about how reasonable force is currently used by prison officers to deliver a defendant into the hands of the security company or court that receives them. It came as a surprise to learn that it involves three prison officers in full riot gear—including overalls, gloves, steel-toed boots, helmets and shields—approaching the prisoner, securing them and getting them into the transport vehicle. Their job is then complete, and responsibility passes to the private security firm staff to deliver the defendant to the court. Unlike the prison officers, neither private security staff nor receiving court staff are equipped with either the personal protective equipment or the training to transfer the defendant first into the court cell and then to the dock.

That level of restraint of a defendant, and risk to employees of the court or agency staff, may be required only occasionally, but what training and equipment will agency and court staff be provided with to ensure that they are as protected as our prison officers? Training is a real issue, and I would be obliged if the Minister would outline what training staff will receive to ensure their and the defendant’s safety. What financial provision has been or will be made to provide such support for staff? The Minister will be the first to recognise our duty of care to these people. If she wants the measure to succeed, she must outline to the Committee exactly how it can be implemented safely. What risk assessment of the whole policy has been conducted? Perhaps more relevantly, what risk assessments will be conducted each time the measure is applied?

I mentioned the case of Lucy Letby. She refused to attend her sentencing hearing and refused to attend via video link. She remained in the cells below Manchester Crown court as bereaved family members delivered victim personal statements, and the judge passed a whole life order in her absence. Like Letby, Thomas Cashman travelled to Manchester Crown court but declined to leave his cell for his sentencing hearing, claiming that he had been provoked by court officials.

Assuming that the Minister’s intention is that defendants such as Letby and Cashman would be forced into court, can she advise how that will be done, and whether she believes such an action is in the best interests of the victims? Perhaps she believes that sanctions can be placed on such people. However, in Letby’s case, the threat of a lengthier sentence would be entirely pointless, because the sentence of life without parole is the most severe penalty the law of England and Wales allows. What sanction can be placed on an offender who knows that the judge will pass a whole life order? Will they be refused visiting rights, or other rights enjoyed by prisoners? What are the Minister’s thoughts on Baroness Newlove’s view that, if defendants object to leaving their cell, a live link should be set up inside? That is also the view of the former Lord Chief Justice, as we heard. It is hard to see how that will be achieved when our justice system’s funding is already stretched to the limit. Perhaps the Minister can also address that.

The charity Justice is also cautious about the introduction of new powers to compel defendants’ attendance at sentencing heroes—hearings. Not heroes; there are no heroes in this business. The charity said that the new powers are unlikely to address the issue in a positive manner:

“A statutory power to require individuals facing a life sentence to attend sentencing hearings is at best unnecessary and at worst, when backed by force, dangerous.”

The briefing from Justice aligns with others in saying that this policy puts staff at risk. It goes on to say that it is questionable whether the discretion to use force in proposed new clause 41B(4) is real, or merely apparent in view of subsection (6). That subsection provides that 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 the sentencing hearing.”

Given that subsection (4) provides the authority to use reasonable force, failure to use such force when it is available arguably places those responsible for securing production at risk of being held in contempt themselves for failing to comply with a court order. Prison governors and custody officers are accordingly placed in an invidious position.

--- Later in debate ---

[Laura Farris]

I thank the hon. Gentleman for his remarks. I would like to clarify immediately that attendance by video link is attendance. If the judge deems that the person would be disruptive in the courtroom, they will still be deemed to have attended if there is a live video link to the cell.

I think the hon. Gentleman asked about methods of restraint, and I will deal with that through two points. It is, of course, within the power of the Prison Service to have the person restrained in the cell, so that they are compelled to listen to the judge’s sentencing remarks. Prison officers are familiar with exercising restraint, and with moving disruptive or reluctant prisoners around the estate, and out of the estate into court.

The hon. Gentleman asked whether court security staff would have sufficient training and would be able to carry out their role. That is a fair point, but they are protected at work under the Health and Safety at Work etc. Act 1974 and the Manual Handling Operations Regulations 1992, which would cover something like this. It would be for the employer to ensure that staff are reasonably safe in carrying out roles. I would anticipate that a judge could take this issue into consideration in making their order in the first place. I remind him that there is more than one way that a person can be compelled to attend their sentencing hearing.

[Alex Cunningham]

I gave the example of prison officers in full riot gear, and with shields, restraining a prisoner. Is the Minister really saying that the employer will be responsible for providing similar equipment to court staff, to ensure that they carry out this policy?

[Laura Farris]

Just to be clear, that is not the statutory duty that would apply. If somebody was deemed to be that level of violent, threatening or difficult, one might assume that the judge consider that very carefully and exercise their discretion. I have said that there is more than one way that attendance is deemed to have taken place, and it does not involve being dragged kicking and screaming into the courtroom. I hope that answers some of the questions. The duty on the employer is to create a reasonably safe place of work, obviously within the parameters that some court staff are engaged in a security capacity and therefore a more robust form of engagement might be reasonably anticipated. I will leave that there.

The hon. Gentleman made a good point about the sanction. If somebody faces a whole-life tariff, why does adding a couple of years matter? It is true that with a whole-life tariff, a person probably has the greatest difficulty with an increased sentence, but I remind the hon. Gentleman very gently of Jordan McSweeney, who used that argument when he said he would not attend. This was reported. He said he did not want to go to court and did not care because he was going to get a long sentence anyway. He got 37 years. But shortly afterwards he was in the Court of Appeal, appealing against his sentence. He was successful and got it reduced by four years. So he did care about the length of his sentence. I think that rather negates that point, if I may say so.

A point was made by the former Victims’ Commissioner, Vera Baird, that I want to take forward. I tried to make this point in my speech, but perhaps I was not clear enough. We accept that the judge now has discretion to make such an order, but we have found that it is not evenly or always applied. It depends who the judge is and where they are sitting. By putting the measure in the Bill, we are creating a power in statute for a judge to make an order to compel a person to attend their sentencing for any serious offence where the maximum is a life sentence, as I have said. That is a change. In proposed new section 41B, the judges can direct a prison to produce any adult offender irrespective of the offence.

[Alex Cunningham]

I am grateful to the Minister for giving way, but I do not accept her explanation of how this adds to the law. Perhaps she would like to take it away and come back to the Committee to spell out exactly how it does. Her explanation, I am afraid, did not cut it.

[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.

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[The Chair]

Order. Before the hon. Member for Stockton North intervenes, I have been very flexible, but I remind Members to adhere to the regular rules of the House and speak through the Chair rather than referring to each other as “you”. I know that it is difficult because you are all sitting opposite each other, but it would be helpful, particularly for Hansard colleagues.

[Alex Cunningham]

The Minister’s point about the trend in high-profile criminals opting not to face the music in court was well made. That is why we certainly will not oppose, and in fact support, this provision. However, it is fair for us to ask and understand exactly how these things will happen. The Minister suggests that the provision is different from the existing powers. Does that mean that perhaps through the judiciary, the judges will be given some form of direction in relation to this piece of legislation that will say to them that if a defendant refuses to appear, they must consider whether they are going to compel them to do so? Or will we be in the same place as we are now, where it is just up to the judge whether it suits him or not?

[Laura Farris]

The statutory intention is that judges will exercise this power. It is plainly recognised and has been well publicised that there is public opprobrium towards the idea that the defendant, particularly in very serious cases, somehow has any kind of control at the end of the process. To be completely honest, the video link would not have been a viable option for a judge until very recently—probably in the life of this Parliament since the general election—but now that that exists, we would reasonably expect judges to make that order as a minimum quite frequently.

Question put and agreed to.

Clause 22 accordingly ordered to stand part of the Bill.

Clause 23

Child sex offences: grooming aggravating factor

Amendment made: 36, in clause 23, page 22, line 11, at end insert—

“(2) In section 238 of the Armed Forces Act 2006 (deciding the seriousness of an offence), after subsection (7) insert—

‘(8) In section 70A of the Sentencing Code (sexual grooming of child as aggravating factor)—

(a) the references in that section to a court are to be read as including a court dealing with an offender for a service offence, and

(b) the reference in subsection (1) to a specified child sex offence is to be read as a reference to an offence under section 42 as respects which the corresponding offence under the law of England and Wales is a specified child sex offence.’”—(Laura Farris.)

This amendment modifies section 70A of the Sentencing Code (inserted by clause 23), as it applies under the Armed Forces Act 2006.

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

--- Later in debate ---

[Alex Cunningham]

Follow that!

Clause 24 would insert a new aggravating factor into paragraph 9 of schedule 21 to the sentencing code, to be considered when determining the minimum term for a life sentence imposed for murder. It would apply where the offence was connected with the end of the offender’s intimate personal relationship with the victim; the victim intending to bring about the end of that intimate personal relationship; or a belief by the offender that the intimate personal relationship had ended or that the victim intended to bring about the end of the personal relationship. The new statutory aggravating factor would apply to offences committed on or after the date the relevant provision comes into force.

We do not oppose the clause, but I hope that the Minister will clearly define what is meant by “intimate personal relationship”. We will discuss clause 30 later, but it refers to

“controlling or coercive behaviour in an intimate or family relationship”.

Does clause 24, then, refer only to that of a partner or ex-partner?

We know the context surrounding this measure. Around a quarter of all homicides in England and Wales are classed as domestic—that is, they are committed by the partner, ex-partner or relative of the victim. They represent an average of nearly 160 homicides per year, with almost 90 being committed by a partner or ex-partner, over the last 10 years. I join others in commending the excellent work of Clare Wade KC, who utilised her expertise in this field to conduct the independent domestic homicide sentencing review, published on 17 March 2023.

As my hon. Friend the Member for Birmingham, Yardley said, the review coincided with an ongoing campaign by the families of two women who were murdered by their male partners: Ellie Gould, who was 17 at the time of her murder by Thomas Griffiths, and Poppy Devey Waterhouse, who was 24 when she was murdered by Joe Atkinson. In her report, Clare makes the important argument that not only are women wronged by a breach of trust, which is an integral part of domestic abuse, but the harms to them often extend to further harm to secondary victims in the form of families, many of whom are the children—we have heard that before—and friends of the victim. There is also the harm to society in general, which, to date, may not have been sufficiently considered.

Clare made it clear to Committee members in her oral evidence session that the proposals in the Bill fall well short of what she set out in her report. In her evidence, Clare said, of clause 24:

“I have to say that it looks a little odd in the Bill because it is, as it were, stand-alone. The intent behind the policy is to have a coherent legislative policy that addresses all the harms, and addresses the particular harms in these cases. We now have in the secondary legislation the aggravating factor of coercive control as something that has happened in terms of the history of the relationship by a perpetrator towards a victim, and vice versa—it is a mitigating factor as well.”

Does the Minister understand why the clause looks a little odd? Perhaps she needs to do some work to make it fit for purpose and able to capture more of Clare’s recommendations.

I recognise that my hon. Friend the Member for Birmingham, Yardley has tabled new clauses 27, 28 and 29 in respect of these matters, which we will come on to. I am pleased that the Government are accepting the recommendation to make a murder that takes place at the end of a relationship a statutory aggravating factor in sentencing for murder. In 48% of murder cases looked at in the Wade report, the sentencing remarks disclosed that there were reports of either jealousy or resentment on the part of the perpetrator at the breakdown of the relationship. In the majority of cases, that appeared to be the catalyst for the murder.

The perpetrator was male in all but one of those 43 cases. A history of controlling or coercive behaviour was identified within the case sample. Clare also said in her oral evidence that

“these killings nearly always happen within the context or confines of domestic abuse and, in the cases we looked at, we found that there was frequently an escalation in domestic abuse when the victim—in the majority of cases, a woman who is killed by her male partner—wants to leave the relationship. That particular recommendation was made because not only is that a real harm, and that represents the real danger, but the policy underlying the other recommendations is one that places the concept of controlling and coercive behaviour at the forefront of the thinking.

The real harm in terms of coercive control, which the law does not yet recognise, is entrapment. It is not fear, as in being continually afraid, and it is not necessarily physical injury. It is entrapment, which is what prevents people who are being abused from leaving relationships. Putting that into legislation as an aggravating factor that can be taken into account by the courts would make it clear that that is one of the harms, but it would also, I suppose, bring to our consciousness the real harm in domestic abuse.”––[Official Report, Criminal Justice Public Bill Committee, 14 December 2023; c. 114-115, Q64.]

In the Government’s response to the Wade report, they proposed four legislative measures to give domestic homicide specialist consideration in the sentencing framework for murder for the first time. Clause 24 is the final one of these measures, with three already laid before Parliament as draft statutory instruments. I will not rehearse again the issues around grooming, which have been covered previously, but does the Minister recognise that she may have lost an opportunity to bring forward more of the recommendations from Clare’s review?

Although we certainly do not oppose the clause, we must consider the practical implications at this stage. In the Government’s impact assessment, they state that the impacts of the clause

“fall beyond the 10-year period”

of measurement. However, in the longer term, the impact assessment states that the measure

“is estimated to require a further 42 additional prison places in steady state, reached around 2065, at a 40-year net present cost”

of £19.2 million. To reaffirm what I said in reference to clause 23, without the Government getting on with tackling the crisis in our prisons, any measures that impact on capacity are a cause for a degree of concern.

I turn briefly to the new clauses that my hon. Friend the Member for Birmingham, Yardley spoke about so comprehensively. Again, I find it difficult to add value to what she had to say. New clauses 27 and 28 would introduce aggravating factors for honour-based abuse and strangulation respectively. New clause 29 would ensure that sexual infidelity can never be used as a defence for murder. I cannot add much to what my hon. Friend said in her well-illustrated speech, and I take this opportunity to thank and pay tribute to her. She has many years of working in this space. From what I have seen, heard and read, I know my hon. Friend has been not just a leading voice fighting for change, but a driving force in supporting both organisations and individuals.

We on the Opposition side recognise the importance of tightening up sentencing in this area. As outlined in my speech on clause 23, that will form a vital part of the wholesale review that Labour has committed to, so we can consider all the measures necessary to ensure that the criminal justice system works for victims. As always, I look forward to the Minister’s response.

[Laura Farris]

I align myself with the shadow Minister’s comments about the hon. Member for Birmingham, Yardley. I would like to pick up where the shadow Minister left off, in talking about sentencing more broadly. That will bring me on, quite naturally, to the new clause concerning strangulation.

I agree with the reservation about the gendered aspect of strangulation throughout domestic abuse and particularly in domestic homicide. The hon. Member for Birmingham, Yardley talked about the problem with the law at the moment, where if someone takes a weapon to the scene of the crime, they get longer than if they use a weapon that, for example, comes out of the kitchen drawer. It is well known that this is the Ben Kinsella amendment, which Jack Straw introduced in 2007 in response to a campaign fought very passionately by Ben’s sister, Brooke, and his family.[Official Report, 1 March 2024, Vol. 746, c. 7MC.] (Correction) Ben was a young man killed in gang violence, and his sister campaigned very passionately for a 25-year starting point for anybody who takes a weapon to the scene of the crime. Clare Wade dealt with that issue quite extensively in her report. I am not expressing a view of the Government here; I am just reflecting what Clare Wade said. She was critical of the starting point. In fact, she was quite critical of starting points in general.

The Government are conducting a murder sentencing consultation at the moment. It is on the Government website, and it remains open until March this year. It addresses all these points, including where sentences do not look like they are quite right—where some are too low or too high; I am not saying that they are necessarily too high, but it is about whether starting points are right. If the hon. Member for Birmingham, Yardley will forgive me, I will say no to the new cause about strangulation, but I encourage her—particularly given her background and expertise—and all Members to contribute to that consultation, because we are looking at this blend of issues at the moment.

Another important concern that Clare Wade recognised in her report was about ranking methods of murder. A well-known example is that a 25-year starting point applies to any convicted offender who has taken a weapon to the scene of the crime, but a victim of domestic abuse—what we might in the old language call “the battered wife”—is almost always going to use a weapon. That is the only way a woman is likely to kill a man, and a woman has very often taken one to the scene of the crime. We did not actually intend to capture that category of offender, but the law currently does.

We think it is important that we are not, at this point, setting one category of offence above another, and that we conduct this consultation and consider this area of the law carefully. As the hon. Member for Birmingham, Yardley effectively acknowledged, and as I think Clare Wade also did, some issues need to be looked at in the round. I hope the hon. Lady will understand why, on that basis, I will say no to her new clause, with all due deference and respect for how she made the case so powerfully put in Clare Wade’s report. All Governments should consider it carefully. That is my first point.

The second point was about honour-based abuse, which again the hon. Member for Birmingham, Yardley articulated well. We are clear that we will not allow political or cultural sensitivities to get in the way of tackling it. There is no specific offence for such abuse; the term is used to encompass various offences, including not only the usual range of domestic abuse, but some of the psychological pressure that the hon. Lady described. Forced marriage can fall within that, with elements of family shame. She talked about a case with a large number of participants who were part of the abusive ring.

--- Later in debate ---

[Alex Cunningham]

I appreciate being able to make an intervention. During my contribution, I talked about Clare Wade and the clause being a little odd because it is a stand-alone one. I know that the Minister has addressed the new clauses of my hon. Friend the Member for Birmingham, Yardley, but will she comment on that? Is there an opportunity to adopt more of the recommendations of the Clare Wade report?

[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.

Criminal Justice Bill (Fourth sitting)

Debate between Laura Farris and Alex Cunningham

Committee stage
Thursday 14th December 2023 Public Bill Committees

[Alex Cunningham]

Okay, fair enough.

[Laura Farris]

Q I just want to say that I thought that your review was absolutely excellent, and it has contributed in a really profound way to the way we talk about these issues in Government. Following the passage of the Domestic Abuse Act 2021, it has been probably the most critical piece of work that has been produced for the benefit of Ministers. I reread it before you came, and I was just so impressed by how comprehensive and detailed it was.

We all know that you are, of course, supportive of the clause 24 provision, which mirrors what you recommended, but I wanted to ask you about some of the things that you have just said. You said in your report that you found that coercive control underpins all domestic abuse. I think that you also made reference to the fact that there is now a consultation happening on minimum sentences in two regards. The first is in relation to whether any killing—any domestic homicide, to use your language—where there has been coercive control should attract a minimum sentence. I think that that goes a bit wider than anything that you put in your review. I will ask you about that first, and then I will go on to the second part.

Clare Wade: My view about setting minimum sentences in stone is quite strong. I am actually not a fan of minimum terms and starting points because I think that it takes away quite a lot of judicial discretion. Even though they are only starting points, we often get stuck with them. There is an argument that schedule 21 is probably not fit for purpose. As I say in the paper, it is frozen in 2003 and it comes with the problem that there is always this issue of, “Do we add another starting point in?” I think that the 25-year minimum terms has done nothing but cause problems.

--- Later in debate ---

[Laura Farris]

Q Especially as the victim cannot give evidence.

Clare Wade: The victim cannot give evidence. If you are looking at sentencing comments, you are not looking at the evidence in the case. Take the two cases with which we started the review, those of Ellie Gould and, in particular, Poppy Devey Waterhouse—the review was initiated by the campaign on those cases. I was able to look at the prosecution case files and see that some of the factors we were able to identify in looking at the evidence were apparent in those cases.

In one of the cases, there was some stalking; in both cases, the killing happened at the end of the relationship where the victim wanted to leave the relationship; there was a little bit of violence. We found those factors, but they were not necessarily apparent from the sentencing remarks—one had to look at the papers through the coercive control prism to be able to identify them. Looking only at sentencing remarks is an imperfect way of looking at all these cases. That is why I welcome the Law Commission looking at the issue of defences.

[Alex Cunningham]

Q I was grateful that you were able to comment on the issues around self-harm. The Bill also covers policing. Do you have a view on the way the Bill treats police-perpetrated domestic abuse issues, the specified offences in relation to gross misconduct, and the requirement of vetting? It may not be your bag.

Clare Wade: I would obviously welcome that. We have had some very high-profile cases where police officers have committed dreadful offences. Public confidence, particularly the confidence of women, needs to be restored in policing, so I would welcome that transparency.

I suppose there is an underlying cohesion in some of what we say. For example, one of the questions that we wanted to answer in the review is how domestic homicides sit and fit with misogynistic killings of women generally. I hope that by identifying the real harms and placing them at the forefront of the law, we are able to show that. That goes back to some of the things we were saying a moment ago, namely that strangulation is a particular harm. It is pertinent to domestic killings, as we identified in the review, but it is also something that happens in other misogynistic killings of women. It is important to not just be able to isolate domestic killings of women, but have a policy that encompasses the misogyny that underpins some of the awful offences we have seen in the last few years.

Criminal Justice Bill (Third sitting)

Debate between Laura Farris and Alex Cunningham

Committee stage
Thursday 14th December 2023 Public Bill Committees

[Alex Cunningham]

Thank you very much.

[Laura Farris]

Q Can I pick up on that final point about getting defendants into the dock for sentencing? I am sure you are aware that the discretion as to whether that order will be made will sit with the judge, so there will be an assessment of the defendant’s conduct. If the judge deems that it is appropriate to bring the defendant into the dock, the parameters for the use of force will be a decision that remains with the prison authorities. Do you think that is the right approach?

Mark Fairhurst: Judges have always had the discretion to order a defendant into the dock. When we used to run a court in the ’90s, there was many a time that we would have used force on a prisoner to get them in front of a judge. That discretion has always been there. It is the right way to do things—we are best suited to decide when it is appropriate and proportionate to use force.

I would like to see dialogue between the staff in the courts and the judge because, if the prisoner is being extremely violent or aggressive, I do not think sitting them in front of a judge is the right way to do things. Maybe we could do it remotely, in a secure room, so the victim still has the opportunity to read out their impact statement, rather than proceedings being disrupted—when you do things remotely, you have the ability to mute. We could still force the prisoner to address those victims, and the victims would feel as if they were getting some sort of justice.

Criminal Justice Bill (Second sitting)

Debate between Laura Farris and Alex Cunningham

Committee stage
Tuesday 12th December 2023 Public Bill Committees

[Laura Farris]

Okay, thank you.

[Alex Cunningham]

Q I want to take you back to the shop workers issue. Minister Philp, in his comments, clearly demonstrated that the Government are a bit shy of having a specific charge related to assaults on shop workers. For the record, can you tell us why shoplifting and related crime does not get the attention it requires and that the public, shop workers and the USDAW would like it to have?

Andy Marsh: In explaining this, I am in no way seeking to justify a lack of attention, but when a call is made to a police control room, they will triage it and they will use something called a threat, harm and risk matrix. If the offender has left the scene and no one is at immediate risk, that is unlikely to secure an immediate deployment. There is more likely to be a follow-up investigation. The retail crime action plan and guidance on our website, and all the focus on the use of images and facial recognition and on persistent offenders, is bringing a much sharper focus to an area of standards and police response that has slipped to an unacceptably low level.

--- Later in debate ---

[Alex Cunningham]

Q That is very helpful. This is my final point. Clauses 11 and 12 address the offence of encouraging and assisting serious self-harm, and of course there are plenty of victims in that sort of category. Are those clauses fit for purpose or could they be improved?

Dame Vera Baird: I think they probably need to be strengthened quite a lot. I do not think there is anything in there that could criminalise somebody who provided a means for doing it as opposed to encouraging it. So if someone provides—I do not know—a knife or some drugs, I am not sure there is provision for that, and I think that is a big miss. This is a really worrying area and we need to legislate, and that is one of the good things in the Bill.

[Laura Farris]

Q I just wanted to clarify something. A statutory instrument is going through the Lords today on coercive control as both an aggravating factor and a mitigating factor, to deal with exactly the point that Clare Wade was driving at. Some of what we have done in relation to Clare Wade is not in this Bill. This is not the entirety of our implementation of the Clare Wade review, and I just wanted to provide that reassurance. Not all of that requires primary legislation.

In that context, coercive control is making its way through in different forms. I have a narrow question about what you thought about the use of MAPPA—multi-agency public protection arrangements—in relation to the management of a serious coercive control offence.

Dame Vera Baird: I think it is good to state that formally. I am sure that it happens now quite a lot.

--- Later in debate ---

[Alex Cunningham]

Q So it may even be challengeable under the law at some future stage. I am looking forward to our line-by-line discussions in Committee, after the evidence that you have just given. Finally, do we need to add any new measures to better manage terrorist offenders on release?

Jonathan Hall: No, I do not think so at the moment. I am in constant contact with counter-terrorism police and the Home Office. I am not aware that the Government are looking for yet further types of measure; if they were, I think they would have sought to bring them in within this Criminal Justice Bill. All that this particular measure does is allow an existing measure, polygraphs, to be applied to a wider range of people. My beef with that is that it allows it to be applied to people who have never been convicted of terrorism, without it going in front of a judge. So I think that the answer is no.

[Laura Farris]

Q You have made some very important points about cohort and how that is determined, and obviously the risk of a borderline case—or a case where, in fact, a judge may not have found a terrorism offence—being brought into scope. More widely, what is your view on the efficacy of polygraph testing? How useful a tool is it in the detection of risk?

Jonathan Hall: I was in favour of polygraph measures after Fishmongers’ Hall. It was partly on the back of one of my recommendations that polygraph measures were brought in. They always, or at least for a long time, existed for sex offenders. You will recall Usman Khan, who was clearly a very deceptive man. My view was that polygraph measures could be useful.