Offensive Weapons Bill

Lord Hogan-Howe Excerpts

Report: 1st sitting: House of Lords
Tuesday 26th February 2019 Lords Chamber

[Baroness Hamwee]

My Lords, in moving Amendment 5 in my name and that of my noble friend Lord Paddick, I shall speak also to Amendments 6, 7, 20, 21, 22, 28, 29, 30, 31, 32 and 34.

For most of us in society, the idea of going to prison for even a short amount of time, with the loss of liberty that that entails, is a real deterrent. But that thinking fails to get into the mindset of many of today’s criminals, who may be reckless or who may not fear prison because they have friends and family who have done time. Perhaps their lives are so chaotic that, in the scheme of things, prison does not seem so bad. That is true of no group more than those serving the shortest sentences. It was recently said:

“In the last five years, just over a quarter of a million custodial sentences have been given to offenders for six months or less; over 300,000 sentences were for 12 months or less. But nearly two thirds of those offenders go on to commit a further crime within a year of being released. 27% of all reoffending is committed by people who have served short sentences of 12 months or less. For the offenders completing these short sentences whose lives are destabilised, and for society which incurs a heavy financial and social cost, prison simply isn’t working”.

By now noble Lords may have recognised the source of this quotation. The speaker went on to say that,

“there is a very strong case to abolish sentences of six months or less altogether, with some closely defined exceptions, and put in their place a robust community order regime. Let’s be honest. The public will always want to prioritise schools or hospitals over the criminal justice system when it comes to public spending. But where we do spend on the criminal justice system, we must spend on what works. Why would we spend taxpayers’ money doing what we know doesn’t work, and indeed, makes us less safe? We shouldn’t”.

Thank you, Justice Secretary, for putting the case so well.

I commented at the last stage of this Bill that, not so long ago, the Home Office and the MoJ were a single department. It was too big, but it is a great pity that thinking has moved so far apart that one department is now legislating for a sanction which the other considers unproductive.

These amendments would remove the sanction of short-term imprisonment for up to 51 weeks—the same points apply as those made by Mr Gauke in his speech a few days ago. We are dealing with various offences: the sale of corrosives to under-18s, the delivery of corrosives to residential premises and having the corrosive in a public place. We would have preferred to focus on robust community sentences, but we learned during the last stage that they can be applied only as an alternative to a custodial sentence. In my view, that needs updating—but that is for another day. I hope that the Government might address this: otherwise, we will do so at a suitable opportunity.

In Committee, it was said, understandably, that victims feel let down because community sentences do not have the same weight and are ineffective. That is an important issue, which should be addressed by the robustness of community sentences. I have heard over the years that a tough community sentence is much harder than custody.

The offences in question are rather difficult. The first two that I mentioned are likely to be committed by adults. Being found to have committed a criminal offence and being fined, which is what our amendments would achieve, would have a serious impact on the offender as an employee—or possibly, in the circumstances, as an ex-employee. The third offence may be committed by an adult but also by a child. The arguments about custodial sentences being rather good at fitting someone for a life of crime particularly apply.

The Minister in Committee talked about the significant harm that corrosive products can cause if misused. The offences in question, which are the subject of these amendments, are not about the use of corrosives as a weapon. We are not seeking to minimise or make light of the harm that corrosives can cause; that is not the point. The Minister will also say that the court has discretion as to disposal, which is of course true up to a point.

That takes me to Clauses 8 and 9—the subject of the last two amendments in this group—which we would leave out. They require particular, mandatory sentences. Clause 8 applies to, among others, children over 16 who have one previous relevant conviction. We are concerned about the age threshold, for reasons that we went into fairly extensively at the last stage and which, I suspect, other noble Lords may raise today. I say in advance that I will probably agree with them. We have an in-principle objection to mandatory sentences. The Minister described them as providing the appropriate custodial sentence. But is not “appropriate” something that the court should determine? We may have criticisms of pre-sentence reports and so on, but the court is looking at both the offence and the offender; those taken together will lead the court to take a view on what is appropriate.

In Committee, we explained our opposition to the application to under-18s—I felt then, and still feel, that Clause 8(4) is inadequate. It is, if I may put it this way, the legislative equivalent of lip service that,

“the court must have regard to its duty under section 44 of the Children and Young Persons Act 1933”.

The text refers back to Clause 8(2), which tells the court that if it is,

“of the opinion that there are particular circumstances”,

it can take a different course. But the circumstances here are that the person is under 18. So how does having regard to the welfare of the child or young person actually work? Does it mean that one child is more resilient than another, that one offence is less serious than another, or that the circumstances make custody “unjust”? This is what discretion in sentencing is about, and these Benches prefer judicial discretion to executive sentencing. I beg to move.

[Lord Hogan-Howe (CB)]

My Lords, I am going to say some contradictory things on this amendment—I have spent a career doing that, so it is perhaps not that unusual. Fundamentally, I think we probably need fewer people in prison. We could probably manage with half the number we have now. The question might be how we get there. As the noble Baroness, Lady Hamwee, mentioned, the Government have said that they would like to have less use—if not no use—of short sentences, so this seems a little contradictory. I would not do that myself; I would find other measures to reduce the prison population. That would probably mean releasing people at the end of their sentence rather than not putting them in there in the first place should it be deemed that they have committed a serious offence.

Here we should come back to the idea that prison is needed as a sanction in these cases; I think that it is relevant. There is no doubt that prison is not helpful for recidivism. All the evidence shows that, when people go to prison, some 80% reoffend within two years of their release. The most effective mechanism for reducing recidivism is called a police caution: broadly, 70% of those who offend never reoffend when they have received a police caution. So prison on the whole will not help with recidivism, but of course while offenders are in there, they will not attack members of the public—although they might attack each other.

The offences here are serious enough for prison at least to be considered. There would obviously then be a debate on how long the sentences should be. If the Government do decide to exclude short sentences, either on this occasion or as a general policy, that would also exclude things like weekend sentences, which would help reduce the prison population. They can be a very constructive way of reintegrating someone after a long sentence, or they can be an alternative to a short sentence.

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[Baroness Williams of Trafford]

Representatives of USDAW are part of the steering group along with staff from large retail organisations right down to small shop owners. It is important that we have a wide range of representation from organisations so that we can see the full spectrum of exactly what issues are involved. I am aware of my noble friend’s past employment with Tesco. Somehow I had assumed that a big organisation would suffer less abuse because the shops are covered by security officers, but that is not necessarily the case. I have witnessed this myself in big retail organisations, and to improve our understanding, we need representation from across the spectrum of those retail companies.

[Lord Hogan-Howe]

I am minded to support the amendment, because the case is a good one for shop workers. I just wonder whether, if the Government are not minded to support an explicit offence—whether for shop workers or any retail worker who is enforcing a licence—in legislation in whatever form, the Sentencing Council could consider that as an aggravating factor in the offences that already exist. This could relate to many other types of offence, so we may be able to support the people who need supporting without needing all the legislation to change to cover the different types of licensee who need that support.

[Baroness Williams of Trafford]

The noble Lord makes a good point about aggravated offences—and of course, that can be explored through the call for evidence. As he will know, it is already an offence to abuse or attack someone who is serving the public. USDAW wanted something specifically related to shop workers, and that is one of the suggestions that could be taken forward—in fact, it may well be taken forward—to the call for evidence.

--- Later in debate ---

I had hoped that the days had gone when Governments gave the police all the powers they wanted so that they could blame them, not themselves, if things went wrong. They have apparently not. These orders have not been thought through and we oppose them.

[Lord Hogan-Howe]

My Lords, I also spoke in Committee. I cannot agree with the noble Lord, Lord Paddick, as he is aware. I come from a similar background and do not have the same experience of anti-social behaviour orders. They were introduced by a Labour Government and, at the time, I think they had an effect. We had a moral panic, and we also had a problem with anti-social behaviour. They were intended to address repeat offenders, repeat locations and, sadly, repeat victims. They did have an effect. They probably went on a bit too long and eventually outlived their usefulness, but the principle was valid and addressed the order to people’s offending. People had the choice to address their offending pattern or have a criminal sanction, and some chose not to address their offending pattern.

The point that the noble Lord, Lord Paddick, made—that it seems to intervene with young people who may not be able to remember all of the conditions placed on them—is not unreasonable. However, generally, this order’s aim is to replace the parental care that the noble Lord, Lord Elton, referred to earlier. When some of these kids do not have someone who cares enough to say, “That’s a line—don’t cross it”, this is one way to give them some advice. I do not think that it means that a 12 year-old will always end up with a prison sentence or even a criminal conviction, but someone needs to intervene in that pattern. Why are they getting involved with gangs and, frankly, mixing with people who are not helping them? Someone needs to advise them where they should not go, who they should not see and about the types of behaviour that are causing them problems. This is one way of doing it. I accept that there may be others, but I do not think that it is unreasonable to give that type of advice.

I broadly support these orders, mainly because we have a serious problem. The Minister went through the number of people who have been hurt and arrested carrying knives, and we clearly have a cultural problem at the moment. We have had it in previous years—this is not the first time. People in this Chamber will remember tens of years ago, when various groups who carried knives ended up competing with each other, often to sell drugs or for any other form of territory where a weapon became the means of establishing it. We have to intervene now and send a message.

I will contest one final point from the speech by the noble Lord, Lord Paddick, about whether community officers are there to arrest people. They are not, but in my view they are not there just to smile and be nice to people. They have powers. It does not help the community they serve if they ignore offences and leave someone else to make the arrest. They are there to exercise the powers that allow people to trust that it is worth telling them when an offence has been committed.

I would ask the Government still to consider two areas for the future. I agree with the point about pilots. At one time, the Ministry of Justice had so many pilots that we thought it was starting an airline. The danger is that, after a while, it becomes confusing. It also becomes quite difficult to evaluate the success of multiple pilots; so, I worry about pilots generically.

The second point, which the Minister quietly mentioned earlier, is that some people are released from prison to areas other than those where they were convicted. Also, offenders move from where they live to other areas around the country, which means that officers in areas where a pilot may not be in place would have to understand what the powers are; frankly, that could get pretty confusing. This House and the other place generate a huge amount of legislation; officers are expected to remember and act on it fairly. The more legislation there is, the harder it is to enforce when it is partial and fragmented. I worry about pilots for that reason too.

On the point made by the noble Lord, Lord Paddick, if we accept that there is a need for this legislation—as I do, and I am prepared to support it—deciding to implement it partially seems an odd conclusion, since we have agreed that nationally there is a problem. We need to implement legislation in a uniform rather than a fragmented, incremental way.

Finally, I repeat a point that I made in Committee: this Bill does not give a power of search. The Minister said in Committee that existing powers of search were sufficient. I honestly do not believe they are. Section 1 of the Bill gives a power to search—anybody at any time—on reasonable suspicion, but these orders are for people who have already gone through a court process, probably at least twice, and have been found to be at risk of carrying knives. It seems not unreasonable to support the police in the relatively few cases concerned, as mentioned by the Minister; I am sure that far fewer than 3,000 of these orders will be implemented. It would not be an incredible burden for the legislature to support the police by saying that a power of search goes with this power, without the “reasonable cause” that Section 1 requires; it would not be unreasonable to support the police in that way. The officers described by the noble Lord, Lord Paddick, who proposed this power—which is generally supported by the police—had requested that the power of search went with it. They were disappointed when they saw that this request had not been accepted in the legislation.

I support the amendments but I suggest to the Minister that the Government consider the two issues I have mentioned: piloting and the power of search.

[Baroness Meacher]

My Lords, I rise to respond to the government amendments in this group, as well as Amendments 55 to 60 in relation to the proposed pilots of the new KCPOs. I thank the Minister for meeting me to discuss my considerable concerns about these knife crime prevention orders. Amendment 52 could provide some reassurance, but that would depend very much on how those pilots are undertaken and reported upon.

In view of the Government’s claim that these orders were wanted by the police, I asked Ron Hogg, the Police and Crime Commissioner for Durham—which is one of the top-performing constabularies in the country, according to the inspectorate—whether he and his chief constable, Mike Barton, would find KCPOs a helpful contribution to policing and dealing with knife crime. His considered response—given at some length—amounted to a resounding no.

I would be grateful if the Minister could inform the House how many police services want knife crime prevention orders and how many would prefer not to have them. Police and Crime Commissioner Hogg reiterated many of the concerns that I raised in Committee; in particular, that there is a body of evidence to show that criminalising and punitive civil deterrents have not had a significant impact on reducing youth violence. These policies, as others have mentioned, have included ASBOs, dispersal orders and criminal behaviour orders. Can the Minister confirm—this is very important—that the KCPO pilots will specifically assess, and report on, their impact on the criminalisation of children, and the impact on knife crime in the areas involved? It is no good having pilots if they do not nail down what the orders are achieving in the crucial areas.

Does the Minister accept that in the light of recent swingeing cuts to local authority youth services, and drug services in particular, it will be important to boost these services and restore those cuts in the pilot areas, with a view to rolling out that restoration of funding across the country? Only if these prevention orders really do lead to children and young people accessing the services and treatment they need will criminalisation be avoided and positive outcomes achieved.