Crime and Policing Bill

Lord Davies of Gower Excerpts

Committee stage
Monday 15th December 2025 Lords Chamber

[Baroness Doocey (LD)]

My Lords, this debate has underlined that stalking is not an occasional nuisance but a pattern of behaviour that our systems still struggle to recognise and act on early enough. The debate shows a familiar picture: warning signs are missed, threats are minimised and tools that Parliament has already provided are used patchily, if at all.

These amendments point towards a more joined-up and confident response, in which the police, prosecutors and other agencies share information, understand the particular dynamics of stalking and intervene at a much earlier stage, including online, before behaviour escalates into something far more dangerous. Looking ahead, there is now a real opportunity to embed that approach in the forthcoming review and in the VAWG strategy. Many of the ideas we have discussed—stronger use of stalking protection orders and notices, better guidance and training, and clearer expectations of consistency across forces—could and should be reflected on here.

The underlying purpose of these amendments is surely uncontroversial: to ensure that the law and practice keep pace with the reality of stalking and to give victims a response that matches the seriousness of the threat they face, so that this debate becomes a turning point rather than a missed opportunity.

[Lord Davies of Gower (Con)]

My Lords, stalking is an offence which constitutes severe harassment and can instil grave fear into victims, as we have just heard. It is absolutely right that the law bears down on perpetrators of stalking. The Stalking Protection Act 2019 gave magistrates’ courts the power to impose stalking protection orders on application by the chief officer of police. Clause 97 extends this power so that a Crown Court can impose such an order where a person has been acquitted of any other offence.

The Government will no doubt argue that they are taking the necessary action to further prevent cases of stalking through this part of the Bill, but let us not forget another Bill they are currently taking through your Lordships’ House. The Sentencing Bill will suspend sentences for anyone charged with the offence of stalking. Section 2A of the Protection from Harassment Act 1997 states that a person found guilty of stalking is liable on summary conviction to imprisonment for up to 51 weeks—less than the 12-month time limit for the presumption of a suspended sentence order.

Furthermore, the offence of breaking a stalking protection order is also likely to lead to a suspended sentence under the Sentencing Bill. Although a custodial sentence of up to five years can theoretically be imposed on conviction on indictment, the Sentencing Council’s guidelines state that in most cases of culpability and severity the starting point will be one year’s custody, and the ranges can go down to 12 weeks in custody and even a community order. This may very well be proportionate for low-level stalking offences, but the fact is that a person with a high degree of culpability and a medium to high level of harm will fall into the range that will mean their sentence is highly likely to be suspended.

If the Government are serious about bearing down on stalking, I suggest that letting anyone convicted of that offence walk free is not a good move for the safety of the victim. The Minister might try to rebut this argument by talking about the stalking protection orders, but I gently say to him that there is no good in letting a stalker roam the streets just because they have an order slapped on them. Given the falling police numbers, what is the likelihood of a person who violates their order actually being arrested? I also suggest that victims of stalking will not feel safer simply because their stalker has been given a court order.

What makes this even worse is that there is a very real possibility that a person who breaks the terms of their suspended sentence order will still not receive a custodial sentence. Although the automatic presumption will not apply in that case, the Government have opposed Conservative amendments to explicitly exempt people with a history of non-compliance from suspended sentences. They have also resisted our amendments to exempt repeat offenders from being handed suspended sentences.

Under this Government’s legislation, there is a very real possibility that a stalker could continually stalk their victim, break their stalking protection order and their suspended sentence order and never face jail time. That is not protecting victims. Against this backdrop, I suggest that it does not matter what we do in this place regarding stalking; we can table all the amendments we like to toughen up the protection orders, but they will not protect victims or prevent stalkers if the Government let than walk free. I will be very interested to hear what the Minister has to say in response.

[Lord Hanson of Flint (Lab)]

My Lords, I noticed that the noble Lord, Lord Davies of Gower, did not have much to say about what is in this Bill. He has opportunities to talk about another Bill; let him do that at another time. I am talking about this Bill. He never mentioned what was going on in this Bill, the measures within it or, indeed, the amendments before us in his opening contribution—not a single word. Maybe he should reflect on that, because he has not endeared himself to me in these discussions.

[Lord Davies of Gower (Con)]

Do I ever?

[Lord Hanson of Flint (Lab)]

The noble Lord asks, “Do I ever?”—he does occasionally, and I will give him the benefit of the doubt, but I was not really impressed that he did not say one single word about what is currently before the Committee. Let us have a discussion about the Sentencing Bill with my noble friends Lady Levitt and Lord Timpson another time. That is being completed. Anyway, let us leave that to one side.

I hope to be helpful in part to the noble Baronesses and others who have spoken. I am grateful to my noble friend Lady Royall of Blaisdon, the noble Baronesses, Lady Brinton and Lady Doocey, and the noble Lord, Lord Russell of Liverpool, for bringing their experience, their views and their passion for this subject to this debate. A number of amendments are before the Committee. As I said, I hope to be helpful in part on some of them.

Amendments 330A, 330AZA, 330AA, 330AB, 330B and 330C all relate to stalking protection orders, which, as Members know, are civil orders introduced in 2020 to protect victims of stalking. Amendment 330A in the name of my noble friend Lady Royall seeks to reference explicitly the required civil burden of proof—that is, on the balance of probabilities—for determining whether the behaviour of a person to be made subject to a stalking protection order amounts to acts associated with stalking. Currently, statutory guidance for the police published by the Home Office references that it is likely the courts will apply the civil burden of proof when considering stalking protection orders, but I agree with my noble friend that there could be a case for making this clearer. I therefore undertake to consider her proposals in Amendment 330A ahead of the next stage on the Bill. I hope that helps the noble Lord, Lord Russell of Liverpool, who also spoke on this matter and my noble friend.

I am grateful for Amendment 330AA in the name of the noble Baroness, Lady Brinton. I am particularly grateful to her for drawing her personal experience to the attention of the Committee. I had not realised the traumas that she had had in the run up to the 2010 election, but I had a quick chance to google those matters while she was speaking. It looks like it was an appalling experience. I am grateful to her for bringing it to the attention of the Committee.

The noble Baroness’s proposal in Amendment 330AA would remove the requirement for the restrictions in SPOs to avoid, where possible, conflict with the defendant’s religious beliefs and interference with their attendance at work or at an educational establishment. On this occasion, I understand the noble Baroness’s view that this could be brought out in statutory guidance, but it is our view in the Home Office that it is important to retain this within primary legislation, particularly regarding an individual’s rights through the European Convention on Human Rights, especially Article 9 on freedom of thought, conscience and religion, so I am afraid I cannot help her on that one.

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[Lord Clement-Jones (LD)]

My Lords, I follow my noble friend Lady Doocey in this small but perfectly formed group of amendments. My Amendment 335 would mandate a statutory consultation on the guidance to accompany the new encouraging or assisting serious self-harm offences contained in Clauses 102 and 103.

On these Benches we welcome the underlying intention of Clauses 102 and 103 to implement the Law Commission’s recommendations for a broader offence covering encouragement or assistance of serious self-harm, expanding beyond digital communication to include direct assistance. However, offences that involve encouraging self-harm must be handled with the utmost care, given the vulnerabilities inherent in such cases. The critical issue here is the risk of inadvertently criminalising legitimate support services, which has been raised with us by a number of support organisations.

The offence requires a specific intention to encourage or assist serious self-harm. This is intended to ensure that charitable organisations and mental health professionals who advise sufferers on how to moderate or manage self-harming behaviour are not criminalised. My amendment addresses this directly by requiring the Secretary of State to produce guidance and consult extensively with representatives of self-harm support charities and organisations; mental health professionals, including those providing trauma-informed care; and legal experts—prosecutors and defence practitioners—regarding the application of the specific intent requirement. This mandatory consultation is essential, in our view, to ensure that the statutory guidance clearly differentiates between criminal encouragement and legitimate therapeutic activity. Without ensuring that this guidance is informed by experts and laid before Parliament, we risk confusion among front-line practitioners and the inadvertent penalisation of those working hardest to help vulnerable people. I hope the Government will give serious consideration to this amendment.

[Lord Davies of Gower (Con)]

My Lords, I fully appreciate the general principle behind these proposals. This is an incredibly serious subject, and I appreciate the sincerity with which the noble Baronesses have approached the debate.

On the amendment in the name of the noble Baronesses, Lady Doocey and Lady Blower, everyone wants to reach a scenario where all possibilities are accounted for, and there are no loopholes through which those who either encourage or abet self-harm can jump. It is for that reason that I cannot offer my support for proposed subsection (6) in the noble Baronesses’ amendment. First, I am sceptical of the need for more aggravating factors. The general offences that fall under loosely defined so-called honour-based abuse are crimes themselves, so I am unsure why there is a need to create an aggravating offence when a criminal will already be able to be tried for those offences individually.

Primarily, though, I do not think this is the right time to be incorporating new definitions into our legal framework. There is guidance for Crown prosecutors as to what might fall under honour-based abuse and examples as to how that might look, but it is yet to be enshrined in law and it is a rather broad and non-exclusive term within our law. That is not to say that it is not easy to spot—it often is—but it should have its own delineated legal definition before it is made an aggravating factor. I agree with the noble Baroness that honour-based abuse is an increasing issue that we must tackle head on, but that cannot be done with a single amendment. However, I offer my support to the principle behind proposed subsection (6)(b).

I welcome the sentiment behind Amendment 335 in the name of the noble Lord, Lord Clement-Jones. Policy rooted in pragmatism is crucial, and consultation and guidance are one of the primary ways to achieve that. The Government should base all the policy that they bring forward on the testimonies of people who dedicate their lives to the subjects that we legislate on, and that it is especially important for a policy in such a sensitive area as this. I hope the Minister agrees, and I look forward to her response.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Baroness Levitt) (Lab)]

My Lords, I thank the noble Baroness, Lady Doocey, and the noble Lord, Lord Clement-Jones, for tabling Amendments 334A and 335 respectively.

I am aware of the cases that have motivated the desire to have an amendment such as Amendment 334A, and I completely understand; the stories that the noble Baroness outlined cannot fail to move anyone listening to them. Having said that, the Government will not be supporting either of these amendments today, for the following reasons.

I shall deal first with the amendment by the noble Baroness, Lady Doocey. When a defendant has previous convictions, including those relating to a history of domestic abuse, that is already recognised as a statutory aggravating factor in sentencing. In addition, aggravating factors that are associated with honour-based abuse, such as abuse of trust or targeting vulnerable victims, are already covered in the domestic abuse guidelines. The presence of aggravating factors such as these should therefore already result in the sentence reflecting those factors, and in my experience it always would. I agree with the noble Lord, Lord Davies, about not adding an ever-increasing list of statutory aggravating factors. This is certainly the third group of amendments that I have dealt with that has proposed different forms of offences.

On the second aspect of the amendment, proposed subsection (6)(b) raises a sensitive and important issue. The Government wholeheartedly agree that, when it can be proved that suicide was the result of abuse or encouragement, the abuser should be held accountable. There are existing offences that cover this situation, such as manslaughter or encouraging or assisting suicide offences, which have maximum penalties of life imprisonment and 14 years’ imprisonment respectively. However, imposing a requirement for the court to sentence the defendant in those circumstances as though they had been convicted of murder, when in fact they have not been convicted of murder, would be at odds not only with the current sentencing approach but with the principle that people are sentenced only for matters that have been proved to the satisfaction of the court. I also make the perhaps obvious comment that there is no range of sentences for murder; there is only one sentence, which is life imprisonment. For those reasons, amending Clause 102 in this way would not be appropriate.

However, I reassure the noble Baroness, Lady Doocey, that the Law Commission is currently undertaking a review of homicide offences and of sentencing for murder, and this will include a review of the use of, and the obstacles to using, manslaughter offences where abuse may have driven someone to suicide. I hope that the noble Baroness will understand why the Government are reluctant to make any piecemeal amendments in advance of the Law Commission reporting.

I turn to Amendment 335, from the noble Lord, Lord Clement-Jones. I thank the noble Lord for his welcome of the offence. As to the guidance that he proposes in the consultation, as many in this Committee are aware, I was principal legal adviser to a rather well-known former Director of Public Prosecutions—I spent five years working for the Crown Process Service—so it is important to me to emphasise that it is in fact for the independent Crown Prosecution Service to update guidance on prosecuting offences under this new provision. It may well be that many noble Lords know this but, while the statutory Code for Crown Prosecutors governs in general terms how prosecutors make decisions on which cases to prosecute and which not, sitting underneath that is a raft of legal guidance that is published and publicly available. It exists for two reasons: the first is so that members of the public can see the basis on which the CPS makes its decisions, but the second is so that the CPS can be held to account. If it fails to follow its own guidance, that will often provide a ground for challenging the decision made.

I understand that the noble Lord’s amendment aims to ensure that legitimate support or therapeutic activity is not criminalised, so I reassure him that the offence has been carefully drafted to avoid capturing vulnerable individuals or those providing mental health support. The offence as drafted in the Bill was recommended by the Law Commission in its 2021 malicious communications report and contains two key safeguards: first, that the person must intend to encourage or assist serious self-harm and without such intent no offence would be committed; and, secondly, that serious self-harm is defined as harm amounting to grievous bodily harm. These safeguards ensure that the offence targets only the most serious and culpable behaviour and protects those who are, for example, sharing personal experience or discussing self-harm but not encouraging it.

The offence also does not cover the glorification or glamorisation of self-harm. The Law Commission found that that was too broad and would potentially capture vulnerable people who might then be exposed to prosecution: so, taking on board the commission’s comments, the Government have not included that.

In our view, this approach ensures that the offence is necessary, proportionate and focused on genuinely harmful acts. There is also a further protection for the vulnerable, which is provided by the public interest stage of the full code test. This requires that, even where there is sufficient evidence, prosecutors must consider whether or not a prosecution is required in the public interest, and plainly the vulnerabilities of the potential defendant would come into play at that stage.

I hope that the reasons I have provided clearly set out why the Government do not support either of these amendments today, and I ask that the noble Baroness, Lady Doocey, and the noble Lord, Lord Clement-Jones, do not press their respective amendments.

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[Lord Hacking (Lab)]

My Lords, having heard a number of cogent arguments from the noble Baroness, Lady Brinton, I cannot remain silent. I was certainly persuaded on the noble Baroness’s Amendment 335A, and I hope that my noble friend the Minister has similarly been persuaded.

[Lord Davies of Gower (Con)]

My Lords, I will speak briefly to the amendments in this group concerning the important issue of child abduction. I am very grateful to noble Lords for their contributions this evening. I am also grateful to the noble Baroness, Lady Brinton, for bringing forward Amendments 335A and 335B, which raise important questions about the interaction between Clause 104 and the lived reality of victims of domestic abuse. The amendments probe how the new offence will operate where a parent has acted out of fear for their own safety or that of their child, and they touch on the wider issue of how the criminal law recognises coercive, controlling and violent relationships.

We very much support the principle behind the noble Baroness’s amendments and the safeguarding concerns that they highlight. I look forward to hearing from the Minister about how the Government intend to ensure that the operation of Clause 104 does not inadvertently criminalise vulnerable parents acting in desperation to protect themselves or their children.

Government Amendments 336, 496, 521 and 549, in the name of the noble Baroness, Lady Levitt, create and support a parallel offence in Northern Ireland relating to the detention of a child overseas without consent. I recognise the importance of maintaining consistency across jurisdictions and ensuring that children in Northern Ireland benefit from equivalent protections. I would be grateful if the Minister can set out how the Department of Justice in Northern Ireland intends to exercise the new regulation-making and commencement powers. What discussions have taken place with relevant agencies to ensure that the offence can operate effectively in practice? I look forward to the Government’s response on these points.

[Baroness Levitt (Lab)]

My Lords, I too thank the noble Baroness, Lady Brinton, for tabling Amendments 335A and 335B. Her amendments have been grouped with the modest collection of government amendments—336, 496, 521 and 549—tabled in my name, which extend the provisions contained in Clause 104 to Northern Ireland.

I note the concern raised by the noble Baroness and the noble Lords, Lord Meston and Lord Davies, my noble friend Lord Hacking and the noble Baroness, Lady Sugg, that Clause 104 will criminalise parents who are fleeing domestic abuse where the detention of the child is primarily motivated by the intention of keeping themselves and/or the child safe. I reassure your Lordships that this absolutely is not the intention of the existing Clause 104. Indeed, in developing the provisions, very careful consideration was given to the implications of potentially criminalising a parent who has detained their child abroad.

Before I turn to the reasons why the Government will not be supporting these amendments today, I want to explain a little more about the purpose of Clause 104’s inclusion in the Bill. I am grateful to the noble Baroness, Lady Brinton, for her clear and even-handed explanation of her understanding of the reason why the Government included it in the first place. The clause seeks to implement the Law Commission’s 2014 recommendation that the Government should close a small gap in the law by making it a criminal offence for a parent, or person with similar responsibility to a parent, to detain a child abroad without appropriate consent, once the original consent has expired.

I am sure that I do not need to explain to anyone that the abduction of a child by a parent is an extremely distressing experience for everyone involved. For any Government, the aim is to safeguard children from abduction by preventing the unlawful removal of a child, ensuring their swift and safe return when they have been taken and upholding custody rights through international co-operation and legal enforcement. The new measure is intended to be consistent with the existing criminal framework, to stand as a deterrent and a backstop where we know that a gap in the law is being exploited, even if by very few people. Some of those who have not returned a child are themselves abusers; they are abusive parents seeking to evade the law. We cannot leave that gap unclosed.

However, I have listened very carefully to the concerns raised by your Lordships this evening, and to some sent to me by organisations with an interest in this area. I remain satisfied that there is no risk of vulnerable parents who have been victims of domestic abuse being criminalised. I hope I shall be forgiven for setting out my reasons in a little more detail; I alluded to them earlier in relation to an amendment tabled by the noble Lord, Lord Clement-Jones, but that was in a slightly different context, and I think I need to give more detail.

Many of your Lordships will be aware that there is a two-stage test for the Crown Prosecution Service to apply when deciding whether a prosecution should be brought. The first is an “evidential sufficiency” test but, even if that stage is passed and it is felt that there is sufficient evidence to bring a prosecution, that is not the end of the matter. The second stage is the “public interest” test, which asks whether the public interest requires a prosecution to be brought. It is this stage of the test that is often applied in, for example, assisted dying cases. This is important, including in a domestic abuse context, because it means that prosecutors must consider the background, including whether the alleged offender was acting from benign motives or was themselves a victim of domestic abuse, before deciding whether a prosecution is required in the public interest. Additionally, and importantly, a third test applies for the new offence in Clause 104 which adds an additional safeguard: that the consent of the Director of Public Prosecutions is required for a case to proceed.

Prosecutorial discretion remains a key safeguard, and evidence of domestic abuse would be a highly relevant factor in any decision to prosecute, or in whether the Director of Public Prosecutions would give his consent in addition. Factors that are relevant to the public interest do not require proof to the criminal standard. It is a much more “in the round” assessment than would be required if bringing some kind of criminal proceedings.

To be clear, in answer to the point raised by the noble Lord, Lord Meston, the Government continue to believe that the civil courts remain best placed to deal with child abduction cases. That is why we support international co-operation and recourse to the 1980 Hague convention as a civil mechanism for facilitating the safe return of children. The UK continues to work with other state parties and the Hague Conference, especially in cases involving domestic abuse, to ensure that the convention operates effectively. The noble Lord, Lord Meston, said, and the noble Baroness, Lady Sugg, in effect agreed, that this prosecution should be the act of last resort. We agree. We are conscious, however, that criminal proceedings may be needed in some cases. It has been suggested that some parents see detaining a child abroad following any earlier consent as an easier route to keeping their child permanently outside the UK with no criminal charges or police involvement. That clearly circumvents the law. This change to the criminal law is intended to sit alongside and supplement existing civil remedies, rather than filling the courts with people who have retained their child abroad.

The amendment from the noble Baroness, Lady Brinton, asks whether the Government would be prepared to add a domestic abuse defence, in effect. The law on defences, including those relevant to domestic abuse, is highly complex. It requires definitions and decisions about where the burden of proof lies and what the standard of proof will be. It is precisely because of this complexity that the Law Commission is currently reviewing defences in domestic abuse cases as part of its wider project on homicide and sentencing. While the primary focus of its review is on homicide, the findings are likely to have broader implications for how defences operate in domestic abuse contexts and could be relevant across a broader range of offences. A bespoke defence of domestic abuse in the offence created by Clause 104 could have implications far beyond the child abduction framework.

I hope that the noble Baroness will accept from me that the Law Commission’s findings will be carefully reviewed before any changes to the law are considered, in order to ensure that any legislative changes are informed by evidence. In the meantime, we are exploring ways to strengthen our understanding of how defences operate in non-homicide cases by gathering more robust data. For these reasons, it would be premature to legislate before the Law Commission has completed its work, but I take the point about the equality impact assessment and the gendered nature of some of these offences. I will, if I may, write to the noble Baroness, Lady Sugg, and, obviously, to the noble Baroness, Lady Brinton, as well.

I turn very briefly to government Amendments 336, 496, 521 and 549. Until now, the provisions in Clause 104 extended to England and Wales only. However, at the request of the Northern Ireland Executive, these provisions will now also apply to Northern Ireland. I note the concerns raised by the two amendments brought forward by the noble Baroness, Lady Brinton, and the noble Lord, Lord Davies, but I hope that, for the reasons I have set out, the noble Baroness will be content to withdraw her amendment at this stage. I hope your Lordships will join me in supporting the government amendments in this group.