Police, Crime, Sentencing and Courts Bill

Lord Falconer of Thoroton Excerpts

Lords Hansard - part one & Committee stage
Monday 1st November 2021 Lords Chamber

In summing up, I reiterate that my view is not that primary carers should never be sentenced to a custodial sentence, but the Government must use the timely opportunity provided by this Bill to consider the big picture and ensure that the rights of children and the impact on their lives are brought to the fore. Doing that would of course also enable the Government to make progress on their own ambitions to radically reduce the number of women in prison, included in their female offender strategy and their national concordat on women in the criminal justice system as well as in the recommendations of the Farmer review on women. I ask noble Lords to support these amendments, and I beg to move.

[Lord Falconer of Thoroton (Lab)]

My Lords, it is a pleasure and a privilege to follow the right reverend Prelate. My name comes after hers on this amendment, and I strongly support what she has said. This is a very important set of amendments and I really hope the Government will take the opportunity that they give. The right reverend Prelate is not saying that those who have primary caring responsibility, or where an unborn child is involved, would get a free pass in relation to the sentencing regime or the bail regime. She is saying, with these carefully thought-out amendments, that there have to be proper arrangements for the courts to take these matters into account and recognise that they are a significant factor in many cases in determining a sentence.

If I could just take the Committee through these amendments, Amendment 110 says that where a court is considering whether to grant bail to somebody—that is, somebody who is not convicted of any criminal offence—they should have regard to the impact of not granting bail on a child for whom the defendant is the primary carer, or an unborn child, and that the court should presume, subject to victim impact or other relevant considerations, that it is in the best interests of the child or unborn child for bail to be granted. The right reverend Prelate is saying, “Weight the scales in favour of granting bail where there is a child for whom the defendant is the primary carer, or there is an unborn child.” That is sensible and should be the approach anyway.

Coming to the right reverend Prelate’s four other amendments, Amendment 215, which comes after Clause 131, says that the court should be under an obligation, through pre-sentencing inquiries, to discover whether the defendant is a primary carer for a child. That is obviously sensible, and no court would want to be in ignorance of that should it be sentencing somebody who is a primary carer. Amendment 216 says that where the defendant is a primary carer, the court must give reasons as to how it has dealt with the issue of primary caring. Again, that seems to be common sense. Amendment 217 says that where a court is considering imposing a custodial sentence on a primary carer or a pregnant woman, it must consider the impact of a custodial sentence on the child or unborn child and presume it will be detrimental to them. Amendment 218 would make sure that proper data is collected so that the criminal justice system is aware of the extent to which primary carers are imprisoned.

These amendments would mean that the interests of the child of which the defendant is the primary carer, or an unborn child, have to be explicitly considered and they are a weight—in many cases, a very considerable weight—in the scales. If we put these amendments into the Bail Act 1976 or the Sentencing Act 2020, which is where the right reverend Prelate is proposing they go, it will have an impact on sentencing. It is not enough, and it is a complacent view, as the Human Rights Committee found, to say, “Don’t worry; the judge has already taken it into account, it is referred to in the sentencing guidelines.” The evidence before the Human Rights Committee is that that was not the case. Put it into the Sentencing Act, as these amendments propose, and we will find that it then becomes a much harder thing for a court to avoid; it should be thinking of the rights of the child of which the defendant is the primary carer, or an unborn child. This is a significant opportunity for the Committee to make this Bill better, and I strongly support the right reverend Prelate.

[Baroness Massey of Darwen (Lab)]

My Lords, the amendments in this group are about ensuring the best interests and welfare of the child. We must remember that children are those under 18, not just little ones. The arguments have been admirably set out by the right reverend Prelate the Bishop of Gloucester and my noble and learned friend Lord Falconer. It is an honour to follow them both.

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[Lord Carlile of Berriew (CB)]

My Lords, I agree entirely with my noble and learned friend who has just spoken that there is a principle here that needs to be considered rather than the granularity of these amendments. Indeed, I would say to the noble Viscount that, although we should try to achieve the protection of all people who are vulnerable, you cannot do everything at once. It is the whole of the life of the child in front of them that is affected if a parent is in prison.

The right reverend Prelate moved these amendments eloquently. I will say, very respectfully, that I think she omitted one or two key elements. These may lead one to the conclusion that we do not need quite complicated amendments but can achieve her aims, which I share, by a simpler method that is more evolutionary in its process. I might perhaps raise a couple of specifics. First, the information that the right reverend Prelate referred to is sometimes simply not before the court. That is because legal aid does not now provide solicitors with the earning potential—and it is not a high earning potential—to go out and investigate the reality of a child’s position. This means that the necessary information may not get in front of the court at all.

I had a conversation some time ago with somebody who was working as a manager of excluded primary school children in one of the London boroughs. She told me that she often rang the solicitors for 11 year-olds right at the top of the primary sector, or sometimes when they had just moved from the primary sector, to ask if they were aware of certain aspects of the child’s life—and they had no idea. They do not have the resources to make those inquiries. Furthermore, when cases come before the court, it is nowadays very rare in the Crown Court for a solicitor to be there instructing counsel in such cases, and, in the nature of the profession and the fees payable, counsel may have received the brief only the night before, and it may be a very junior counsel. These are the practical issues that judges encounter all the time.

I want also to say something about judges; I have a family interest in this, which I will not go into in great detail, despite the urgings of my noble and learned friend Lord Garnier. It is this: judges should be given credit for understanding the problems that the right reverend Prelate raised; she perhaps did not quite get there. Judges, many of whom are mothers themselves, hear these cases and understand perfectly well. They do not need a statute to tell them that it is not in the interests of a child for that child’s mother to be sent to prison .They do everything they can—on the basis of the information they are given, which may give rise to the real problem—to ensure that, if at all possible, a woman who has primary caring responsibility for a child is not sent to prison.

[Lord Falconer of Thoroton (Lab)]

I apologise for interrupting. The right reverend Prelate’s Amendment 215 says:

“A court must make inquiries to establish whether the offender is a primary carer for a child”,


and, if those inquiries suggest that the defendant is a primary carer, then, according to the amendment, the court has to direct a pre-sentence report on the circumstances of the child. Does the noble Lord object to that burden on the courts?

[Lord Carlile of Berriew (CB)]

I do not object to that burden on the courts, but I am surprised that it has to be placed upon the court. My view is that that sort of report should be part of the process when a young mother, for example, appears before the court. Mechanisms already exist that can ensure that such information is given. I am saying that we can achieve the same purpose more simply—for example, by the use of the Sentencing Council, if it is asked to concentrate on these issues.

I simply add this. The last statistics I have seen for women in prison, for 2020, show that 3.4% of prisoners are women. This is the lowest percentage it has ever been, and it is continuing to fall because the courts absolutely understand what those who tabled these worthy amendments are saying.

When the Minister replies, I hope he may be able to provide reassurance that the ends of these amendments will be achieved but in a more flexible way that can evolve over time, rather than by slightly clunky statutory provisions that, in my view, should not be necessary. Do we really need an Act of Parliament to ensure that courts give proper account to the paramount interests of children, which my noble and learned friend referred to a few moments ago?

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[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)]

My Lords, perhaps I should first begin by apologising to the noble Lord, Lord Marks of Henley-on-Thames, for standing up at the same time as him. I am not sure whether I stood up too quickly or the noble Lord stood up too slowly, but we got there at the same time.

This group of new clauses relates to primary carers in the criminal justice system, and first I thank the right reverend Prelate and noble Lords for tabling these amendments. I know they were proposed in a recent legislative scrutiny report on the Bill by the Joint Committee on Human Rights, and this topic has been an area of interest to the Joint Committee during this and previous Parliaments. As set out during debates on the Bill in the other place, the Government support the principle behind these amendments. I hope, therefore, I will be able to provide to the House the reassurance that the noble Lord, Lord Carlile of Berriew, asked for. I can assure the noble and learned Lord, Lord Falconer of Thoroton, that we do take these points very seriously. More generally, I can assure the noble Baroness, Lady Massey, that when it comes to our sentencing reforms, we do consider the impact on children. However, the reason the Government do not propose to accept these amendments is that they do not consider them to be necessary, for reasons I will seek to explain.

When sentencing or considering the grant of bail to a defendant who is a primary carer of a child or who is pregnant, courts will consider principles established in relevant case law. There is a wealth of case law on this point. We have heard the contribution from the noble and learned Lord, Lord Thomas of Cwmgiedd, and I am reluctant to get into the details of criminal law in his presence. But it can perhaps be conveniently found in a case called R v Petherick in 2012—let me give the reference for Hansard: “EWCA Crim 2214”.

In that case, a single mother with a boy of 16 months was convicted—she pleaded guilty—of causing death by dangerous driving and driving with excess alcohol. The court set out nine points of specific and clear guidance—nine principles—which had to be taken into account with regard to sentencing. If I may summarise those in a sentence or two with no disrespect to the court, they make clear that the aims of custody have to be balanced against the effect that a sentence can have on others. That is the case both with regard to sentencing and with regard to pretrial detention. When I say, “on others,” this point is not limited to children, as a number of contributions to this debate have highlighted—particularly those from my noble friend Lord Hailsham, the noble Baroness, Lady Jolly, and, again, the noble and learned Lord, Lord Thomas. It does have broader application, and the court will obviously want to consider the effect of custody or pretrial detention on others who are dependent on the person who might go to prison. This is a point, therefore, with more general application.

I have talked about sentencing and remand in custody. When it comes to sentencing, the principles I have just set out, in broad terms, are reflected in detailed sentencing guidelines issued by the independent Sentencing Council. Courts are required by law to follow those guidelines, and the guidelines specify that being a “Sole or primary carer for dependent relatives” is a mitigating factor when sentencing an offender. The effect, therefore, is that the fact that the primary carer is such can tip the scales. What would otherwise have been a proportionate sentence if it was a sentence to custody can, if the person is a primary carer, become disproportionate. It can tip the scales.

As we heard from my noble and learned friend Lord Garnier, to whom I am grateful for his kind words, recorders and judges give—to use his word—anxious consideration as to whether a custodial sentence is required. Again, the position in law can be summarised like this: a custodial sentence can be imposed only where the court is satisfied that an offence, or combination of offences, is so serious that neither a fine alone nor a community sentence can be justified. Even where a court is of the opinion that the seriousness of an offence would ordinarily warrant a custodial sentence, it still has discretion to impose a community sentence after taking into account wider considerations. Community sentences are part of the important background to this debate. I think we will come to them later on in the Bill and I look forward to the thorough endorsement of the noble Lord, Lord Marks, of our proposals on community sentences, given what he said in this debate. That is the position with regard to sentencing.

On defendants awaiting trial, there is a general right to bail unless it is necessary for the protection of the public or the delivery of justice that the defendant be remanded in custody. A defendant accused of an imprisonable offence can be refused bail only where there is specific justification for that refusal, as specified in legislation. A number of noble Lords talked about the information which is available to the court about the personal circumstances of the defendant. The bail information report includes information about the direct effects on an individual and any dependants, should they be remanded in custody.

With regard to pre-sentence reports, which were also mentioned, guidance was introduced in 2019 for probation practitioners, in addition to the legislation already in place, which sets out that a request to the court for an adjournment in order to prepare a pre-sentence report is considered mandatory in cases involving primary carers with responsibilities for children or other dependants, and for those at risk of custody. An aide-memoire highlighting key areas for practitioners to consider when assessing the diverse needs of women in the context of offending was also issued in 2019 to assist probation practitioners to prepare those pre-sentence reports on women. We are currently running a pilot in 15 magistrates’ courts that specifically targets female offenders, as well as two other cohorts which have specific needs, for fuller written pre-sentence reports.

The noble and learned Lord, Lord Falconer, spoke about the importance of the courts giving reasons why they were refusing bail, for example, or sentencing somebody to custody. That duty is, with respect, unnecessary to impose on courts because they are already required by law to state in open court their reasons for deciding on a sentence. Moreover, where there are dependent children, sentencing guidelines, as I have said, require the courts to consider the impact on them at various points in the sentencing process. That is the effect of Section 52(1) and (2) of the Sentencing Code.

I turn to data, about which the noble Baroness, Lady Massey, my noble and learned friend Lord Garnier and the noble Lord, Lord Bradley, made points. I underline the point again from the Dispatch Box that data is critical. My noble and learned friend was very kind, but the fact is that I am quite keen on data. I am not the only person in the Government who is, but I certainly am.

I assure the noble Baroness, Lady Massey, that we have already committed to improving our work on data collection concerning primary carers in prison. That work is already under way. We already collect information on parental responsibilities but the current questions do not identify dependent children of primary carers using the correct definitions. We are therefore making changes to the questions to enable us to identify prisoners with primary carer responsibilities on their entry to prison, and to enable access to that information centrally—a point made, I think, by the right reverend Prelate.

We are already looking at how we can deliver our commitment to improve national data collection through changes to what is called the basic custody screening tool. That is completed shortly after somebody goes into prison and we want to capture more robust and reliable data on parental responsibilities. Responding to earlier reports from the Joint Committee, the Government have committed to collecting more data centrally and using that to inform policy and improve our services for prisoners with primary caring responsibilities.

[Lord Falconer of Thoroton (Lab)]

The first report of the Joint Committee on Human Rights in 2021 details in section 2 the concern expressed by the committee in 2019 that there was no data about carers who were in prison. The Government gave an assurance that they would do something about it in 2019. The committee produced another report in 2020, saying “You’re still not collecting that material”, and a Minister gave another assurance. In 2021, the committee wrote a third report—this report, containing these suggestions—saying that none of the previous assurances has been complied with. Why should we accept the assurances the Minister is now giving in relation to the 2021 report, when all previous assurances given to that committee have not been complied with, as detailed by the committee in its report, and as the Ministry of Justice has not denied?

[Lord Wolfson of Tredegar (Con)]

Work still has to be done, of course, but I hope that the noble and learned Lord will accept that we are doing more than we have done before. As I have tried to explain, we have put in place a process to identify what we need to collect and how we are going to do it. One must also take into account—the noble Lord who made this point will forgive me for not remembering who did so—that it can be difficult to get this information from people in prison. Some people do not want to provide information about dependent children and others who rely on them. I am not using that as an excuse, but one has to be alive to that point as part of the data collection service. All I can say to the noble and learned Lord is that I have this firmly in my sights. In this part of the criminal justice system, as, I would say, in others, data is really important and I am certainly focused on it.

I was going to make one other point on data, which I hope the noble and learned Lord will be pleased to hear. We will also consider not just the collection of data but what data can be published. It might be that not all data we collect can be published because of confidentiality issues, but we will certainly ensure that we publish what we can.

[Lord Falconer of Thoroton (Lab)]

This is a separate point. Amendment 215 would require the court to

“make inquiries to establish whether the offender is a primary carer for a child”

and, if it discovers that the defendant is, to then order a pre-sentence report about the circumstances of that child and the impact. Is the Minister asserting that that provision is currently in the sentencing guidelines?

[Lord Wolfson of Tredegar (Con)]

I hope I made that clear earlier; let me go back to my notes. I do not want to mislead the noble and learned Lord. As I understand it, the position is this: guidance was introduced in 2019 for probation practitioners, in addition to the legislation in place, which sets out that a request to the court for an adjournment in order to prepare a pre-sentence report is considered mandatory in cases involving primary carers with responsibility for children or dependants. The noble and learned Lord shakes his head—

[Lord Falconer of Thoroton (Lab)]

I am not disputing what the Minister says, but I read him as saying that that position is not reflected in guidance. He is saying something different: that if somebody asks for an adjournment to make inquiries, one has to be granted. That is obviously different from the amendment.

[Lord Wolfson of Tredegar (Con)]

I was going to come to the detail of pre-sentence reports a little later. Let me come to that and if the question is still alive, I will give way again.

I think I had completed what I was going to say about data, apart from one point. The right reverend Prelate asked about pregnancy data. In the time I have had available, I have been able to get the following response, but I am obviously happy to continue the conversation. In July this year, we published a national figure—for the first time, as I understand it—for self-declared pregnancies in the women’s estate and the total number of births that took place during the period in three categories: prisons, transit and hospital. That is found in the HMPPS Annual Digest. I do not know whether that has fully answered the question from the right reverend Prelate on specific data. If it has not, I am very happy to continue the discussion.

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[Baroness Jones of Moulsecoomb (GP)]

My Lords, I rise to support these amendments. We are now getting into the stuff that I will fight tooth and nail over. As an archaeologist and activist, I feel that I have a little bit of insight into this whole situation and perhaps into the ridiculous law that the Government are trying to introduce here. Instead of debating and discussing it and coming to a sensible resolution, this is part of a battle in a culture war, which is absolutely ludicrous.

History is important, but it is not fixed. People like to think that we all know what it is and it is in all the books, but, actually, as an archaeologist, I know that we reinterpret it all the time and are constantly making new discoveries. Just in the last week or so, we found Roman statues in a totally unexpected place. This is what happens: we change our minds about history and it gets rewritten.

The problem is that we have some very ugly history, which is littered with powerful and wealthy white men who, behind a thin veneer of toffish respectability, did some quite nasty things and were responsible for atrocities such as the enslavement of millions of people, genocides, war crimes and the grabbing of wealth from some of the many nations that we now call “developing nations”. Our statues ignore this history and pretend that it was benign and that these were good guys, which is simply not true: they were slavers and pillagers, and we ought to recognise that. Having their so-called heroism set in stone is actually quite offensive. There is no hint in many of these statues that they did some evil deeds.

People—many members of the public—do not like this, and they are showing their dissatisfaction with celebrating people who really should not be celebrated. They raped and pillaged, and the fact that they then spent a lot of money on universities, libraries or parks does not really make it all all right. So the question of what we should do with these monuments is important, but not easy. It should force us to confront the evils within our history and reflect on how they carry through to the social and economic conditions of our present.

Instead of leading on this quite important dialogue, the Government simply storm in with a new criminal offence, which I find so ludicrous that I feel I ought to go and speak directly to the Home Secretary about it. They are trying to put their fingers in their ears, sing “Rule Britannia” and pretend that all of this did not happen and that it was all okay—but it was not. Councils all over the country and the Government have to realise that statues are not something that we cannot change or remove. The fact is that some of these statues celebrate evil deeds, and the Government should recognise that.

I have more to say, if noble Lords wish.

[Lord Falconer of Thoroton (Lab)]

I apologise for not standing up promptly—I was expecting the noble Baroness to say more. I will deal with two issues in relation to this group. First, I will deal with the points made by the noble Lord, Lord Paddick, in relation to what is in effect an increase in the penalty for certain sorts of criminal damage. We on this side completely understand that certain sorts of criminal damage—for example, to the gravestone of a much-revered and loved person—that cause very little financial damage nevertheless absolutely cut to the heart of a community or an individual. Our view is that it should be possible, in certain circumstances, for that to be dealt with somewhere other than a magistrates’ court.

This absolutely over-the-top provision is not necessary to ensure that something like that, which does merit a Crown Court trial, should be dealt with in the Crown Court. I would have thought that a much more targeted amendment could have dealt with that, but this, which deals with absolutely every sort of thing, is unnecessary. You do need a provision to make sure that protection is provided in relation to things that are deeply offensive, such as the desecration of a grave—but, beyond that, the law works, by and large.

I also agree that a lot of thought has gone into this, but there is practically nothing in the Bill—except for one or two increases in sentences for violence—that deals with the protection of women and girls. Instead, there has been this very complicated provision. But, as I say, we accept that it will be appropriate in certain cases to allow for a trial in the Crown Court.

Our Amendment 115, which comes after Clause 46, is designed to deal with a practical issue in relation to criminal damage: the effect of vandalism on safety equipment. This amendment was moved in the other place by Sarah Champion MP, and it reflects a campaign that has been run by Simon and Gaynor Haycock, whose son, Sam Haycock, went swimming in Ulley reservoir in Rotherham in May 2021, on the very day that he finished school, aged 16. He went to help a friend who was in trouble. At the reservoir, a throw line that has a safety belt on it, which you can throw into the water to try to assist someone, is behind a locked cupboard. You can access the throw line only by ringing 999 and getting a PIN number from the police in order to get the line out. The delay in getting the throw line out may well have had tragic consequences on this occasion. The reason that it is behind a locked door with a PIN number is because of the vandalism of safety equipment. I wonder whether the Government could spend their time focusing on something that has a practical effect, rather than engaging in rather divisive culture wars. I very much hope that the Minister will feel able to say something to help Simon and Gaynor Haycock in their campaign.

The amendment proposes that it is made a specific offence to intend

“to destroy or damage any property which is considered life-saving equipment, including life-belts, life jackets, or defibrillators.”

Of course, it would already be an offence to do that, but it matters a lot to indicate that this is something that the law regards with particular hostility because it costs lives, including the life of Sam Haycock. I very much hope that the Haycock family will hear good news from the Minister tonight.

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[Lord Falconer of Thoroton (Lab)]

It is very helpful of the Minister to tell us what the law is—accurately, I am sure. I do not think it is well known that if you damage life-saving equipment, you might be falling foul of Section 1(2) of the Criminal Damage Act—that is, you might be recklessly endangering life—because generally you will not intend to do that. That is why it is important to have a provision that makes it clear in the Bill, because most people do not have the benefit of the noble Lord, Lord Wolfson, to tell them what the law is.

[Earl Attlee (Con)]

It seems pretty obvious that if you get hauled before the courts for damaging life-saving equipment, you are going to be in deep trouble. What you do not know is what the penalties are.