Criminal Justice and Courts Bill

Lord Faulks Excerpts

Monday 14th July 2014 Lords Chamber

Moved by

[Lord Faulks]

28: After Clause 16, insert the following new Clause—
“Alternatives to prosecution: rehabilitation of offenders in Scotland
In Schedule 3 to the Rehabilitation of Offenders Act 1974 (protection for spent alternatives to prosecution: Scotland), at the end insert—“9 (1) The powers conferred on the Scottish Ministers by—
(a) paragraph 6, and(b) section 7(4), as applied by paragraph 8, may be exercised to make provision relating to reserved matters and are not subject to the restrictions imposed by section 29(2)(b) or (c) of, or Schedule 4 to, the Scotland Act 1998.(2) In this paragraph, “reserved matters” has the same meaning as in the Scotland Act 1998.””

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

My Lords, this amendment is required in order to address a legal competence gap that has been identified by the Scottish Government in relation to the exercise of enabling powers in Schedule 3 to the Rehabilitation of Offenders Act 1974, to which I shall refer as the 1974 Act. Following on from the Children’s Hearings (Scotland) Act 2011, the Scottish Government would like to legislate to specify occasions when the normal rules relating to the disclosure of spent alternatives to prosecution from a children’s hearing should not apply.

To achieve this, the Scottish Government need to exercise powers in Schedule 3 to the 1974 Act to specify the types of employment and proceedings that are excluded from the protection of the 1974 Act and, therefore, where a person may need to disclose a spent alternative to prosecution. These powers can be found in paragraph 6 of Schedule 3 and Section 7(4) as applied by paragraph 8 of Schedule 3 to the 1974 Act.

Scottish Ministers already have the power to legislate in respect of exceptions and exclusions relating to spent convictions in reserved areas. However, because paragraph 6 and paragraph 8 of Schedule 3 were inserted into the 1974 Act by an Act of the Scottish Parliament, these provisions cannot be exercised to make exclusions, modifications or exceptions in relation to reserved subject matters.

A transfer of functions order, as was made in 2003 in relation to convictions, cannot be made here because the relevant powers were conferred on the Scottish Ministers by an Act of the Scottish Parliament rather than on a Minister of the Crown by a Westminster enactment. Therefore, the amendment will insert a new paragraph into Schedule 3 to the 1974 Act which will state that Scottish Ministers can exercise the powers in paragraph 6 and Section 7(4) as applied by paragraph 8 without the relevant restrictions in Section 29 of the Scotland Act 1998. This will allow the Scottish Ministers to set out exclusions, modifications and exceptions in relation to alternatives to prosecution which are given by children’s hearings in Scotland in the desired way.

The amendment is an important step in helping the Scottish Government to implement their policy concerning the rehabilitation of child offenders and shows how this Parliament can demonstrate its ability to legislate effectively for Scotland. I hope that the Committee agrees that this is a sensible and pragmatic solution and that noble Lords will support the amendment. I beg to move.

Amendment 28 agreed.

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[Lord Beecham (Lab)]

My Lords, this amendment was provoked by a disturbing article in the Guardian on 1 July, based on the recently published report of the inquiry into children and the police by the All-Party Group on Children, chaired by my noble friend Lady Massey. It appears that, in 22 police forces that replied to a request for information, 1,136 children under the age of 10—well below the age of criminal responsibility —were subject to stop and search between 2009 and 2013. The Met could not supply figures for 2009-11. The number of children under the age of 18 subject to this process across 26 forces exceeded 1 million.

There have been reports on this issue in the past, including one in November 2009 relating to children from BME backgrounds, and one in January 2010 on searches of 11 year-olds. In January this year, it was reported that 500 such searches had been carried out in Scotland on children under the age of 10, including 72 on children aged only seven or younger. It is apparent that there is no effective code of practice governing the carrying out of such searches, or even of properly recording them. For example, police forces were unable to say how many looked-after children had been stopped and searched. Some forces do not even record a child’s name, address and date of birth, although some do. Only 20 of the forces had separate custody facilities for children in their police stations.

The Home Office has reviewed stop-and-search powers, but the all-party group’s inquiry suggested a number of improvements relating to the collection of data, including ethnicity, and specific guidance on safeguarding and child protection, especially for vulnerable children in care or at risk of abuse or exploitation. When a child is taken to a police station for the purposes of a search, he or she has a right to have a parent present. Some forces make an effort to take a child home before searching.

The Bill contains a welcome provision in Clause 20 to require an appropriate adult to be present when a caution is given to an offender under the age of 17. The amendment, which is designed as a probing amendment, would extend that principle to stop and search so that an appropriate adult would have to be present, particularly during the search. The stopping is not necessary something an appropriate adult would be present for, but the search, which is a more personal intervention, should be in the presence of an appropriate adult. As it stands, the amendment applies to children under the age of 10, but perhaps thought should be given as to whether that age remains too low—after all, it is below the age of criminal responsibility. In Scotland, consensual searches—searches the child simply agrees to—will now no longer be carried out on children aged under 12.

I hope the Minister will agree to consider this amendment and come back on Report possibly with an improved version. It seems important that this process, if it has to be undertaken, should be undertaken in as sensitive a way as possible, preferably in the presence of a parent, but, if not, at least of an appropriate person independent of the police force. I hope the Minister will look kindly on the suggestion and perhaps work with the Opposition to see whether we can reach an agreed position on it. I beg to move.

[Lord Faulks]

My Lords, I am grateful to the noble Lord, Lord Beecham, for drawing the Committee’s attention to this issue. The purpose of the amendment is to extend the safeguards provided in PACE codes of practice C and H, covering custody procedures, to provide children under the age of 10 with an appropriate adult in public settings where a stop and search is carried out. While this is a laudable aim, the Government do not consider the amendment desirable, as we consider the existing provisions in law and codes of practice are sufficient for the purposes of ensuring that children are treated appropriately. For instance, there are already important safeguards attached to Section 1 stop and searches. These include the obligation on the police to provide key information to the person being searched about the purpose of the search and the grounds for searching, and ensuring that the person subject to the search understands the procedure. In addition, a person can be detained for the search only for as long as is reasonably required to allow the search to be carried out. Therefore, the period of time for which an individual can be held for the search is strictly limited and proportionate.

Indeed, in terms of the time that individuals are detained, were there to be a requirement for an appropriate adult to be called in a stop and search context, this would require the police to arrange for provision in all public settings and at all times, which would entail detaining children for significant and disproportionate periods of time. This would also mean a significant strain on police time and resources.

There is also Section 11 of the Children Act 2004, which places the police under an obligation to make arrangements to safeguard and promote the welfare of children when exercising their functions. The statutory guidance accompanying this duty requires the police to ensure that appropriate training is in place to enable police to deal appropriately with children.

In respect of the police’s use of stop and search, those are just some of the safeguards in place which apply to children, and they are entirely appropriate given the nature of the procedure.

The principal function of an appropriate adult is to explain and demystify the criminal process at the police station following arrest and detention. For example, the police interview, the meaning of the caution, the individual’s rights within the police station context and so on would need to be explained. However, these considerations do not apply to a brief stop and search encounter, which is about confirming or allaying a police officer’s reasonable suspicion that an individual may be in possession of something they should not.

I am aware that this proposed measure was mentioned in the recent All-Party Parliamentary Group for Children report on children, published this month. The group’s initial report stated that,

“APPGC Officers will continue to consider recommendations on the stop and search of under-10s for our final report, including ... whether”,

stop and search,

“should only occur in the presence of an appropriate adult, carer or parent or in the family home”.

In answer to the noble Lord, the Government will consider the group’s conclusions in its final report on this matter, but for now, without adequate consideration and consultation, we are not convinced that this measure should be introduced in legislation.

Finally, on 30 April, as the noble Lord said, the Home Secretary announced a comprehensive package of measures designed to reform the way that stop and search is used. The measures are designed to ensure that these powers are used fairly and effectively and in a way that engenders community confidence. These measures should impact positively on all sections of the community, including children. For these reasons, I respectfully ask the noble Lord to withdraw his amendment.

[Lord Beecham]

My Lords, I confess to being somewhat disappointed by the Minister’s response. We are talking here essentially about very young children, and much of what he said would be relevant certainly to adults and possibly to adolescents, but children aged 10 or under will be going through a process that is not systematic and with apparently no clear national guidance on how these things are to be conducted. Indeed, as I said, the fact that even the recording of what has happened is not uniform suggests that there is certainly a need for a coherent code. I also still urge consideration to be given to the suggestion in the amendment that an appropriate adult be available, particularly for younger children.

I do not know what timescale the Minister envisages for the production of any further guidance or indeed how long it will take the APPG to produce a second report. However, even if it is not possible before Report to reach a conclusion on whether the parliamentary group believes that it is necessary to amend the Bill, I hope that we can emerge from this whole process with a coherent approach in which the issues that the APPG has raised are addressed and in which legislation or guidance is uniformly adopted by all relevant agencies, including of course the various police forces.

I particularly invite the Minister to look at the Scottish experience. Scotland has taken a very clear decision, which is in any event quite different from the one that we now apply here. I hope that there will be some conversation with interested agencies north of the border, irrespective of the outcome of the referendum, in order to ensure that the best possible practice is implemented when we are dealing with children of this age in England and Wales. Having said that, I beg leave to withdraw the amendment at this stage.

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The Government have so far expressed unwillingness to take the suggestion of a new offence forward. Admittedly, it does not have the resonance, however empty, of such eye-catching measures as the “bash a burglar” provision in the anti-social behaviour Bill of last year, or even some of the gimmicks that adorn the present Bill. Nevertheless, I hope that the Secretary of State and the Home Secretary will look again at the issue from the perspective of both departments. I take it that that is why the noble Lord, Lord Taylor, is here. We need action to strengthen the law and to resource adequately the investigation and prosecution of this crime. It is a serious and growing problem, and I would be disappointed if the Government do not react more positively to the suggestion that is made here, not only by me but by others who are concerned to protect the public from this constant threat, all too often realised at great personal loss. I beg to move.

[Lord Faulks]

My Lords, I am very grateful to the noble Lord for his introduction to this amendment. Of course, he is right to identify the increasing danger of fraud in the cybersphere, something acknowledged in the Serious Crime Act. He was also right to refer to the fact that there are other offences that deal with fraud—in particular, the Fraud Act 2006, which already includes offences that would apply to anyone who assumes a false or non-existent identity to commit fraud. In particular, Section 2 sets out the crime of fraud by false representation, which would cover a person pretending to be someone else for the purposes of making a gain for himself or another.

While identity theft is not in itself a criminal offence, the use of a false identity for fraud purposes is. Therefore, the amendment as drafted has difficulties, because it would also apply to innocent persons—for example, to persons who collect a parcel using their relative’s identification from the post office, which is currently permitted. However, the Government take the issue of identity crime extremely seriously and are pursuing a number of initiatives to prevent it. A multiagency strategic group, led by the Home Office, has been formed to reduce the threat to the United Kingdom. The group is engaged in a range of activity to tackle the problem, such as strengthening the issuing processes of government documents, improving data-sharing of false identities, and taking down websites that offer false documents for sale. There is a national policing identity crime champion. The City of London Police is leading this work and is currently developing an identity crime strategic threat assessment, working closely with the National Crime Agency.

The Government recognise that there are often particular challenges in dealing with the consequences of identity theft. These challenges relate to the difficulty of identifying and catching offenders, rather than to a lack in the criminal law. The Government are working with banks and credit card companies, promoting technical solutions to the problem and working to help the victims of such crimes. We are working with the credit reference agencies to provide a free service for anyone who has had their personal details used fraudulently. The credit reference agencies liaise with each other and the banks to restore compromised personal credit records. The service can be accessed by contacting Experian, Equifax or Callcredit. We are also addressing the scale of this issue and establishing identity crime trends over time, through the Crime Survey for England and Wales.

We are not in any way complacent but I hope that my response to the noble Lord’s very real and appropriate concerns about identity crime has satisfied him that the Government are well aware of the issue and are responding appropriately. In those circumstances, I respectfully ask him to withdraw his amendment.

[Lord Beecham]

I will, of course, withdraw the amendment. However, if I may say so, I am slightly disappointed by the Minister’s rather complacent tone in relation to where we are in this situation. I do not detect a properly co-ordinated response between the Home Office and the Ministry of Justice where the police service is concerned. This matter bears further examination. If, as the noble Lord says, it is currently under consideration, I wonder whether there is any possibility of a report being made before we get to Report stage. If that is not the case, I will be tempted to bring something back at that point. However, I am happy to enter into further discussions in the light of any progress made by the Government in drawing their various strands together. I beg leave to withdraw the amendment.

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[Lord Kennedy of Southwark]

My Lords, like other noble Lords, I want to speak to both Clauses 23 and 24 to aid your Lordships’ House.

The Opposition cannot support the noble Lords, Lord Blair, Lord Dear, Lord Condon and Lord Paddick, in opposing Clause 23. I have heard very clearly the points that they have made concerning police officers being public servants with special provisions being made for them. They are obviously highly respected individuals and public servants but, with that, they carry great responsibility and great power. Where those officers exercise that power or privilege improperly, there can be tremendous consequences for the individuals concerned. That is the concern that we have on these Benches and it is why we will support the clause as it stands.

Moving on to Clause 24, the murder of a police officer is of course a most serious crime, and it is right that anyone killing a police officer in the course of their duty should receive a substantial jail term. This clause would make that a whole life term. My colleagues in the other place supported the Government, as we do today on the Opposition Front Bench. The noble Lords, Lord Blair, Lord Condon and Lord Dear, have all been senior police officers and have all expressed grave reservations about this provision, saying that it is unnecessary. Like the noble Lord, Lord Paddick, I very much hope that the Minister will meet the noble Lords and other representatives and look at this issue very carefully. The last thing that anyone wants to do is to agree to a Bill that puts more people’s lives at risk. I am very worried about that. We must look carefully at what they have said and talk to them about this issue because it would be madness to do anything else.

These are very difficult issues. Obviously everyone wants to root out corruption at any level. Regarding Clause 23, the consequences for the victims of police corruption are very serious.

[Lord Faulks]

My Lords, this has been an excellent debate, distinguished by the contribution of four very senior and experienced police officers. Also, the helpful contribution of the noble Lord, Lord Kennedy, added to the debate. The noble Lord, Lord Paddick, is quite right: the Government should plainly listen to what police officers with such experience and who are so respected in your Lordships’ House have to say.

The noble Lord, Lord Condon, ranged over a number of issues in respect of the police. He stressed that the police were in something of a crisis at the moment but, at the same time, he said, absolutely correctly, that they need to be properly resourced and that there ought to be a competent Independent Police Complaints Commission. So far as that is concerned, the Government have given the IPCC a range of new powers. It has already received £2.4 million to strengthen its capabilities. In addition, from this financial year, we will transfer £18 million from police forces to the IPCC to enable it to do all serious and sensitive cases, including corruption work.

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[Lord Blair of Boughton]

My Lords, I am most grateful to the Minister and to the noble Lord, Lord Kennedy, for their comments. I am afraid that I still feel we are in the world of assertion, as the Minister said, rather than of argument. He may not be able to do this, but I would be most grateful if he could assist me by providing me with some of the advice that he has received in relation to the corruption offences. The scenario that he just described, of a senior police officer misusing his position but where no prosecutor could find a way to suggest that that was an offence under the bribery or whatever Act, or that it was misconduct in a public office, sounds a little unusual to me.

I am most worried, as I think are other noble Lords who have spoken, about what I shall now refer to as the “perhaps” clause. The Minister very much emphasised the word “perhaps”, saying that an offender in these circumstances would perhaps not be familiar with the law and so on. The fact is that as soon as you mention “whole life tariff” to a criminal, he or she—it is almost certainly a he—knows what a whole life tariff is and that it means that you might as well take five cops out as one cop. It is that simple. I would be grateful to speak to the Minister a little further about this, particularly to answer the question that the noble Lord, Lord Kennedy, raised about the level of consultation with senior police officers and the Police Federation at the moment. I am pretty clear that the objections that I have raised are familiar to them: they have been familiar to generations of police officers since the then leaders of the police service objected to there being capital punishment for the murder only of a police officer or a prison officer.

[Lord Faulks]

I would be happy to talk to the noble Lord before Report.

Clause 23 agreed.