Policing and Crime Bill

Debate between Lord Faulks and Lord Marks of Henley-on-Thames

Report: 3rd sitting (Hansard): House of Lords
Monday 12th December 2016 Lords Chamber

[Lord Faulks (Con)]

My Lords, I will not delay the House long, either. We have rightly concentrated on the rights of the innocent; they are fundamental to our system. But I will address your Lordships very briefly on the position of victims. Victims’ groups complain, not without justification, that in the past they have not always been taken seriously by the police or prosecuting authorities. Victims need to be encouraged to come forward. We should not underestimate the courage it takes to report offences of the sort we are concerned with to the police. You may not be believed. You may have to face—so you think—the ordeal of being cross-examined by men in wigs who suggest that you have lied. You may feel very alone, particularly if you have been abused by someone in authority.

Noble Lords will have seen the footballers coming forward many years after the event, and the courage that it took and the incredible upset that it caused them in a macho culture to admit what had happened so many years ago. I take the example given by the noble Lord, Lord Carlile, of someone in a care home. They come to the police many years later. Their evidence is the first of any sort of being abused in a care home by somebody who runs the care home. After they have given their account, the man who is running the care home denies vociferously that he abused this character. There is a suggestion that he may have come forward for financial motive. But what if others come forward? The first complainant may feel that he cannot go through with the matter at all unless some of the other people, whom he knows very well have been abused, do so.

In Committee, I raised the point with the noble Lord, Lord Paddick, that I was concerned that his amendment might result in the police charging rather earlier than they would otherwise have done because they want to flush out potential corroborative witnesses; and that that might be inappropriate. I did not suggest there was any lack of bona fides on the part of the police; this is a very difficult decision to make. However, I suggest that there is that real risk, even with CPS involvement. It is most important that people are encouraged to come forward to give evidence in appropriate cases.

Of course, safeguards have been mentioned, whether in the magistrates’ court or the High Court, but this is a police operational matter. Despite judges’ ability to deal with many difficult things, it is not the right case for them to consider. I suggest that if there is a need for a tightening of the guidelines or for further offences that deal with police behaviour, so be it. But, focusing on the victim, I am for the moment not satisfied that there needs to be a change in the law.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I will address a couple of points briefly. First, I will address the difference between Amendments 182 and 187 on the central question of whether it is right to extend pre-charge anonymity to all offences or to sexual offences only. I completely appreciate the logic of the position adopted by the noble Lord, Lord Marlesford, and the noble and learned Lord, Lord Mackay of Clashfern. However, I believe that there is a distinction to be drawn between sexual offences on the one hand and other offences on the other.

I believe that the noble and learned Baroness, Lady Butler-Sloss, was right about this. It seems to me that a particular stigma attaches to accusations of sexual offences, which is generally more difficult to rebut where such accusations are made than where an accusation is made of another offence against the person or of offences against property. It is often far more difficult in sexual offence cases to clear conclusively and for ever the name of a suspect who is not charged than it is in the case of other offences. As the noble and learned Baroness pointed out, there is also the interest of the press in sexual offence cases. I suggest that that is why so much publicity has been given to sexual offences, particularly historical offences, in this debate and in your Lordships’ House generally.

A further point is that the nature of the evidence in sexual offences tends to be historical and tends to involve pitting the word of the claimant against the word of the victim. In those circumstances, the no smoke without fire rubric gains currency. I see this as a question of balance in which the balance in the all-offences case mentioned by the noble Lord, Lord Marlesford, comes down against pre-charge anonymity, whereas it comes down in favour of it in respect of sexual offences. It is a case of the robustness and security that we as a society allow to the presumption of innocence.

The second question I wish to address is that of the stage at which anonymity should cease. I entirely take the point made by the noble and learned Lord, Lord Judge, that the arrest is part of the criminal process and therefore that there is, generally speaking, a public right to know because the liberty of the subject is being taken away at that early stage. However, I cannot get away from the central point that arrest can be effected by a police officer on reasonable suspicion only. That reasonable suspicion frequently arises when the suspect has been given no chance to offer a full explanation which, if he were offered that opportunity, might dispel the suspicion altogether—whereas, to justify a charge, it has to be shown that there is evidence which would, if it were accepted at a trial, lead to a conviction by a court of law. I believe that that distinction is important, and that again the balance is against lifting anonymity at arrest and keeping it therefore at charge.

I then come to the question of witnesses coming forward. I completely appreciate the concern that exists around the House and outside it that witnesses should not be deterred from coming forward. But I also agree with the point made by the noble Lord, Lord Lamont, that in most cases, if evidence from further witnesses is available, it will come forward after charge, so that forbidding pre-charge publicity will delay further evidence rather than prevent it coming to light altogether. There is nevertheless a concern, raised by the noble Lords, Lord Faulks and Lord Pannick, about the possibility of pre-charge anonymity preventing genuine witnesses—notably other victims—coming forward with allegations that might lead to a suspect being charged when he would otherwise escape justice altogether. That is why the detail of the proviso inserted in the amendment of my noble friend Lord Paddick addresses this point precisely, and it is very different from the amendment that was presented in Committee.

Under this amendment a judge is entitled to say that he is,

“satisfied that it is in the interests of justice to remove or vary a restriction provided for”,

and to,

“direct that the restriction shall be lifted or shall be limited to such extent and on such terms as the judge considers the interests of justice require”.

The amendment further states:

“In considering an application … the judge shall have particular regard to the possibility that further witnesses might volunteer evidence relating to sexual offences allegedly committed by the person”.

I believe that that is the best we can do in striking a balance between encouraging witnesses to come forward and enabling them to know about allegations in appropriate cases, and protecting suspects from unjust publicity that causes the dreadful consequences of which we have all heard.

It is all a question of balance and I appreciate that it is a very difficult balance to strike. But I suggest to your Lordships’ House that the amendment proposed by my noble friend Lord Paddick strikes that balance accurately and should be supported.

Magistrates

Debate between Lord Faulks and Lord Marks of Henley-on-Thames

Thursday 7th July 2016 Lords Chamber

[Lord Faulks]

The question of appropriate sentencing powers is a difficult one. It goes back to 1952, when the magistrates were first given their powers. There are different views on whether it is appropriate to increase the sentencing powers. For example, the Prison Reform Trust and the Howard League think there ought to be a decrease in sentencing powers. There is a great deal of thought being carried out on this. I am not currently aware of any modelling and I cannot go beyond the answer given, but I will take that back to the department and bear in mind the question posed by the noble Lord.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, this change has been on the statute book since 2003. The Magistrates’ Association argues strongly that retaining more cases in the magistrates’ court and reducing the number of cases committed to the Crown Court for sentence would cut delays, as the noble Baroness, Lady Seccombe, said, save some £40 million and, importantly, make justice more local. Do the Government see any persuasive arguments against now implementing the change?

[Lord Faulks]

The noble Lord is right; it was as long ago as 2003 that this potential increase in sentence was statutorily allowed. A number of factors have been taken into account by successive Governments. He makes an important point about cost savings. He is quite right; it is, of course, much cheaper to use magistrates than go to the Crown Court and, if they have appropriate powers, it is more likely that magistrates will deal with the matter. We have to bear in mind—I think the noble Lord, Lord Beecham, directed his question towards this matter—the possible effect on the prison population and how magistrates will feel able, or want, to use any increase in powers. It is a difficult question.

Court Proceedings: Written Transcripts

Debate between Lord Faulks and Lord Marks of Henley-on-Thames

Tuesday 28th June 2016 Lords Chamber

[Lord Faulks]

The noble Baroness makes an important point, and I will take it back.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, any member of the public can walk into court to hear proceedings being conducted. That is at the heart of open justice. I have long believed that allowing proceedings to be televised is the natural extension of that principle—subject of course to safeguards, in particular for witnesses. Does the Minister agree that the limited televising of proceedings to date has been a success and should be further extended?

[Lord Faulks]

There has been some televising of proceedings. The Supreme Court, for example, even has its own website. I do not think it is doing very well in the ratings war, but it provides accessible opportunities to see what goes on the courts. The Court of Appeal Criminal Division is also now available to the public, and a pilot is proceeding on the Crown Court and sentencing remarks. While of course the Government are very much in favour of open justice, we have to proceed carefully in this area, perhaps because of the risk of people being diverted in the way they perform in court, whether they be witnesses or even—dare I say?—lawyers thinking about how they will be perceived.

Prison Safety

Debate between Lord Faulks and Lord Marks of Henley-on-Thames

Tuesday 3rd May 2016 Lords Chamber

[Lord Marks of Henley-on-Thames]

To ask Her Majesty’s Government, in the light of the latest figures on deaths in custody and prison violence, what plans they have to improve prison safety in the short term.

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

My Lords, the Government recognise that our prisons need reform. There is much more to do to ensure that prisons are places of decency, hope and rehabilitation, and improving safety is fundamental. There is no single, simple solution to the increases in deaths and violence in prison, but we are taking action. This includes implementing the recommendations from the review of the process to support prisoners at risk of suicide and self-harm, and trialling the use of body-worn video cameras.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, my Question was quite specific. We commend the Government’s commitment to long-term prison reform, but last week’s figures demand immediate action to reduce prison violence. Homicides, assaults on prisoners and staff, suicide and self-harm are all up, by roughly a quarter overall—and that is over the previous dreadful year’s figures. We urgently need more staff, fewer prisoners, less of prisoners’ time spent locked in cells and an end to cell cramming. What action will the Government take now?

[Lord Faulks]

The noble Lord will know, because his party was in government for five of the last six years, that what happens in prisons represents a real challenge for any Government. However, I can tell him that prison officers have increased in number by 440 this year. Further to that increase, we are continuing our drive for more prison officers; the training is improving—going from six to 10 weeks; we are cracking down on psychoactive substances and their importation into prison; and we are acting through a number of different initiatives to identify particular risk points for violence. We are doing everything we can to tackle these very real problems.

Prisoners: Foreign Nationals

Debate between Lord Faulks and Lord Marks of Henley-on-Thames

Tuesday 12th April 2016 Lords Chamber

[Lord Faulks]

We have reduced by 584 the number of IPP prisoners in the last year. There is an indeterminate sentence prisoners co-ordination group, run by NOMS, where close examination is taking place of all serving IPP prisoners. Efforts are made to accelerate their access to the appropriate courses, and we have removed backlogs from the Parole Board. We think that everything is being done to make sure that those who are safe to be released are being released when the Parole Board decides.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, today we have further evidence of prison overcrowding from another shocking inspection report of Wormwood Scrubs, which holds 35 indeterminate sentence prisoners. It makes the obvious recommendation that single cells should not be used for more than one prisoner. Will the Government now recognise that the injustice of keeping IPP prisoners beyond their tariffs serves only to add to the scandal of holding prisoners in overcrowded, squalid and understaffed prisons?

[Lord Faulks]

The noble Lord refers to the report on Wormwood Scrubs, which I entirely accept shows a distressing picture. As he and the House will know, the Secretary of State and the Prime Minister are determined to improve our prison system, and the Chancellor of the Exchequer has given £1.3 billion to enable that to happen. It will not happen overnight, but I am sure the House will accept the Government’s sincerity and determination to deal with some of the most unattractive aspects of our prison system.

Prisons: Violence

Debate between Lord Faulks and Lord Marks of Henley-on-Thames

Thursday 3rd March 2016 Lords Chamber

[Lord Marks of Henley-on-Thames]

To ask Her Majesty’s Government what steps they are taking to tackle the incidence of deaths, serious assaults and incidents of self-harm in prison.

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

My Lords, the Government recognise the seriousness of this problem and are taking action to respond. We are trialling the use of body-worn video cameras, the Psychoactive Substances Act will introduce new offences to control supply and possession and we have reviewed the process for supporting prisoners at risk of suicide or self-harm. We recognise that our prison system needs reform, and there is much more to do to ensure that prisons are places of decency, hope and rehabilitation.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, 2015 saw a record number of deaths in custody, a 20% increase in assaults and a 25% increase in self-harm incidents. Those increases were over record figures the previous year. The Justice Secretary appears committed, rightly, to prison reform, but has he been promised the resources to address the causes of these dreadful figures—squalid conditions, overcrowding, understaffing and prisoners locked for far too long in their cells?

[Lord Faulks]

The causes of violence are multifactorial. They include of course the increased use of psychoactive substances, to which the Government are responding positively. It is a ceaseless challenge to try to prevent them coming into prison, but we have a new offence, and we are taking steps to make it very difficult for these substances to be thrown over walls or secreted in parts of the body. It is generally a significant challenge. We are also looking at a two-year violence reduction project, to help us better understand the causes and characteristics of violence and to strengthen our handling of it. There is also the use of body-worn cameras. Ultimately, the best way to reduce violence may be to give, as the Prime Minister and the Secretary of State have suggested, much more power to prison governors to give them the tools necessary to reform the way their prisons are run and to help rehabilitate offenders.

British Bill of Rights

Debate between Lord Faulks and Lord Marks of Henley-on-Thames

Thursday 10th December 2015 Lords Chamber

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

My Lords, we will set out our proposals in due course. While we want to remain part of the ECHR, we will not stay at any cost. If we cannot achieve a satisfactory settlement within the convention, we may have no option but to consider withdrawal. However, we are confident that we can make progress from within the ECHR.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, the convention obligation to comply with final decisions of the Strasbourg court protects us all against breaches by Governments, in other Council of Europe countries and our own. In the light of the Russian Constitutional Court’s decision that Russian domestic laws should trump Strasbourg decisions, do the Government not accept that if we took a similar line—let alone threatened to leave—it would encourage other Governments to do the same? Will the Government commit on this Human Rights Day that they still accept that the binding obligation to comply with final decisions of the Strasbourg court is the bedrock on which the convention is built?

[Lord Faulks]

My Lords, the legislation passed by the Russian Duma does not actually mean that Russia is leaving the ECHR. It was a response to a decision of the ECHR about the unfettered right to tap phone calls and Article 8. This Government remain absolutely committed to the protection of human rights, both here and abroad, on this international Human Rights Day. We are party to no fewer than, I think, seven explicit treaties protecting human rights, as well as many others which bear on them. We will remain within the convention and the obligations under Article 46. Any future plans will involve the protection of all those rights contained within the convention.

Prison Service: Trans Prisoners

Debate between Lord Faulks and Lord Marks of Henley-on-Thames

Tuesday 24th November 2015 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

Does the Minister recognise that one difficulty under the existing system, with giving priority to legal gender, is that trans people who turn out to be offenders may be the least likely to apply for gender recognition certificates under the 2004 Act? Will the government review take that into account?

[Lord Faulks]

The decision to apply for a certificate is, of course, an intensely personal one. What is important is that a prisoner, or indeed anybody, should know that they have the right to do so—but it would be entirely inappropriate to in any way place pressure on somebody to go through that process. The matter is one that the Act rightly treats with great care in terms of protection of data and all the sensitive matters that it is necessary to take into account when making a momentous decision of this sort.

Legal Aid

Debate between Lord Faulks and Lord Marks of Henley-on-Thames

Tuesday 24th November 2015 Lords Chamber

[Lord Marks of Henley-on-Thames]

To ask Her Majesty’s Government whether they are satisfied that the Legal Aid Agency’s evaluation of tenders for the new duty solicitor contracts was fairly and effectively conducted.

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

My Lords, we are. The Legal Aid Agency followed a robust and fair process in assessing duty tender bids. The assessment process was subject to careful moderation and management at all stages, including independent validation. All staff who assess the bids received comprehensive training to ensure transparent, consistent and fair treatment of all bids.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, two whistleblowers involved in this assessment process have now said publicly that there were too few staff, many of them virtually untrained agency temps with no relevant experience, and that assessment of the bids and moderation of the assessments were subjected to highly unreasonable time targets. Now that this has led to 100-plus legal challenges and calls from the Law Society for a full and proper investigation, what do the Government propose to do to review the process in view of the Answer just given by the noble Lord?

[Lord Faulks]

The noble Lord is right that this has been the subject of legal challenges, just as the bidding process itself was subject to an unsuccessful judicial review. There have been individual legal claims under public procurement regulations and a judicial review in relation to the process. It is inappropriate for me to comment in detail about matters which are the subject of litigation. However, I can say that about 19% of the staff were temporary. The Government are satisfied that these staff were thoroughly adequately trained and that what they were asked to do was reasonable in the time afforded to them.

Restorative Justice

Debate between Lord Faulks and Lord Marks of Henley-on-Thames

Wednesday 18th November 2015 Lords Chamber

[Lord Faulks]

The Government are aware that there are a number of schemes, in not only Northern Ireland, but Australia, New Zealand and parts of North America. There is no standardised way of delivering restorative justice but the Government are committed to continuing this as a significant way of improving reoffending rates and providing victims with a reasonable involvement with the criminal justice system.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, the MoJ is to be congratulated on its action plan produced by the coalition Government and on promoting Restorative Justice Week. There is strong evidence that restorative justice programmes can be effective in prisons as well as in the community, and Sycamore Tree has been running programmes in 40 prisons. Will the new prisons built to replace existing outdated ones have the facilities necessary to run restorative justice programmes, and in surroundings that are sympathetic to victims, who are central to restorative justice?

[Lord Faulks]

The noble Lord is right that restorative justice is provided in a number of settings, including in prisons. Of course, the new prison plans are somewhat in their infancy at the moment but I am sure that the Secretary of State will have well in mind the desirability of maintaining this tradition.

Criminal Justice: Transgender People

Debate between Lord Faulks and Lord Marks of Henley-on-Thames

Wednesday 4th November 2015 Lords Chamber

[Lord Marks of Henley-on-Thames]

To ask Her Majesty’s Government what assessment they have made of the current policy on the treatment of transgender individuals in the criminal justice system.

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

My Lords, criminal justice agencies are mindful of their duties under the Equality Act 2010. In particular, the National Offender Management Service policy on the care and management of transsexual prisoners states that prisoners are normally placed according to their “legally recognised gender”. The guidelines allow, however, some room for discretion and in such cases senior prison management will review the circumstances with relevant experts to protect the prisoner’s safety and well-being, and those of other prisoners.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, Tara Hudson—a woman, after six years of gender reconstruction—was originally imprisoned at HMP Bristol, a tough prison for 600 men, causing her great distress. She was moved to a women’s prison only after the judges considering her appeal suggested that the Prison Service reconsider. How can prison allocation be so insensitive to transgender offenders, particularly in the light of the Minister’s Answer? Will his department ensure that in future, if a transgender defendant is at risk of a custodial sentence, full and careful thought will be given to allocation before sentence rather than after placement?

[Lord Faulks]

I am slightly surprised that the noble Lord has commented in such detail on Tara Hudson; he will be aware of the obligations under the Data Protection Act and the Gender Recognition Act 2004, which place restrictions on the disclosure of information relating to prisoners. As noble Lords will be aware, it is the policy of the Ministry of Justice and its executive agencies never to discuss individual cases. However, without breaching any of the obligations under those Acts, I can assure the House that she is being held in an appropriate environment and is receiving the care that she needs.

British Bill of Rights

Debate between Lord Faulks and Lord Marks of Henley-on-Thames

Wednesday 28th October 2015 Lords Chamber

[Lord Faulks]

I do not believe that there was any downgrading of human rights. We have a proud history of protecting human rights, both here and abroad, and we will continue to maintain our concern for those human rights.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, independent reports—the Minister’s answer appears to confirm this—state that there will be no pre-legislative scrutiny of this vital and, frankly, ill-defined proposal and that the Government will go to legislation after a consultation of about only 12 weeks. Can the Minister refute those reports and promise full pre-legislative scrutiny of a constitutional measure of this fundamental importance?

[Lord Faulks]

We will consult fully on our proposals, and will announce further details in due course. There have already been two consultations pursuant to the commission on a Bill of Rights, and there will be a third consultation. This is in marked distinction to what happened on the Human Rights Act, which was brought in without any consultation at all, within six months of the Labour Party gaining power.

Legal Aid, Sentencing and Punishment of Offenders Act 2012

Debate between Lord Faulks and Lord Marks of Henley-on-Thames

Wednesday 10th June 2015 Lords Chamber

[Lord Faulks]

I can assure the noble Lord and the House that all the Ministers in the Ministry of Justice are wedded to the rule of law and to access to justice. But the question that arises out of social welfare law is whether it is always necessary for everybody who has quite real problems to have a lawyer at £200-odd an hour, or whether there are better and more effective ways of giving advice.

[Lord Marks of Henley-on-Thames (LD)]

The National Audit Office also reported on the LASPO reforms last November. A key finding was that there had been, as predicted, a large increase in litigants appearing in person, with an estimated extra cost of £3.4 million a year. May we now have a full and urgent cost-benefit analysis to assess what changes could be made to improve access to justice without driving up unduly the cost to the public purse?

--- Later in debate ---

[Lord Faulks]

Well, it is interesting that the noble Lord is now very much against the legislation that the coalition Government promoted. Neither his party nor the Labour Party in their manifesto suggested that they would reverse any of these cuts. Indeed, they did not suggest in either of their manifestos that they would look at it any earlier than we intend to do. Of course—

[Lord Marks of Henley-on-Thames]

My Lords—

[Noble Lords]

Order.