Policing and Crime Bill

Lord Kennedy of Southwark Excerpts

Committee: 3rd sitting (Hansard - part one): House of Lords
Wednesday 2nd November 2016 Lords Chamber

Moved by

[Lord Kennedy of Southwark]

180: Clause 51, page 70, line 28, leave out “inspector” and insert “sergeant”

[Lord Kennedy of Southwark (Lab)]

My Lords, on behalf of my noble friend Lady Henig I wish to move the amendment tabled in her name and that of the noble Baroness, Lady Harris of Richmond. Clause 51 concerns pre-charge bail and the powers for someone to be released who has been arrested other than at a police station. Amendments 180 and 182 are practical and proportionate and support policing based on greater practitioner autonomy and expertise, which we believe falls in line with the empowerment drive by the Home Office and the College of Policing. Both amendments would reduce the level of the decision-making process from the rank of inspector to sergeant.

Police custody sergeants are well-trained practitioners who have responsibility for the care and treatment of suspects on a 24-hour basis. They make key decisions in line with PACE and other codes of practice. They have the necessary expertise to be able to adjust for a suspect to be released without bail and to apply conditions only where absolutely necessary and proportionate to protect the suspect, victim, witnesses and the wider public.

Amendment 184 concerns the rank of senior officers who can confirm that an investigation either by the SFO or FCA is under way and the applicable bail period. The amendment reduces the rank required of those who can be authorised with these powers from superintendent to inspector. The rank of inspector is a management rank and officers at this level would already be involved in exercising authorising powers and balancing the needs of the suspect. Officers holding this rank are numerous in the police service and are on duty on a 24-hour basis. It should also be noted that there has been a reduction in the number of officers holding the rank of superintendent, with a fall of 28% since 2010.

Officers with the rank of superintendent can take responsibility for any pre-charge reviews beyond the first review and oversee the application process for magistrates’ courts. They can also review any decision made by an inspector that is challenged by a suspect or their legal representative.

This group of amendments seeks to set out powers and responsibilities that are commensurate with the rank held and the practicalities of what is needed in particular situations. I beg to move.

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The Government recognise that the introduction of statutory controls on the use of pre-charge bail will entail additional work for the police when compared with the current free-for-all. Introducing effective controls in a situation where none exists at present will always have a cost, which the Government consider is justified by the enhancement to the rights of those who, let us not forget, have not even been charged with an offence, let alone been convicted. As I have described, we consider that the authorisation levels set out in the Bill strike the correct balance between accountability and bureaucracy. I therefore ask the noble Lord to withdraw his amendment on behalf of his noble friend.

[Lord Kennedy of Southwark]

My Lords, I thank the Minister for her response to this short debate. Neither my noble friend Lady Henig nor the noble Baroness, Lady Harris of Richmond, were able to be here today, so I was happy to propose the amendments on their behalf. I will reflect on the points made, read the debate and talk to my noble friend. I am happy to withdraw the amendment at this stage, but my noble friend may want to return to it on Report.

Amendment 180 withdrawn.

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[Lord Kennedy of Southwark]

My Lords, Amendment 181 in the name of the noble Lord, Lord Marlesford, would insert a new clause into the Bill concerning the procedures to be followed where a suspect is released without charge or informed after being questioned under caution that no further action will be taken against them. In considering the noble Lord’s amendment, I wanted to listen carefully to his reasoning for this proposed new clause, and I think that he has made a compelling case today. The noble Lords, Lord Dear and Lord Paddick, have extensive experience as senior police officers and the House should also take note of their support. I am not sure whether this should be addressed through an amendment to the Bill—I accept that point. There may be some other mechanism to address it, but the noble Lord, Lord Marlesford, has made a compelling case and I thank him for that.

[Baroness Williams of Trafford]

My Lords, Amendment 181, tabled by my noble friend Lord Marlesford would require a custody officer to do two things once a decision has been made that no further action is to be taken against a suspect because the test for mounting a prosecution, set out in the Code for Crown Prosecutors, has not been met. First, the custody officer would need to notify the person in writing that no further action is to be taken. Secondly, the written notice must use the phrase “lack of evidence” to describe the reasoning behind the decision.

The Government agree with my noble friend that written notification should be given in all cases. We consulted on this in late 2014 and Clauses 65 and 66 would require a written notification to be given to any person arrested on suspicion of a criminal offence, where the police or Crown Prosecution Service subsequently decide not to charge. This applies whether or not the person is on bail following the reforms set out in Part 4 of the Bill. My noble friend’s amendment would go one stage further and require the written notification of no further action in those cases where a person is interviewed under caution on suspicion of an offence but not arrested. We know from anecdotal evidence that, since the amendment of PACE Code G in 2012, more cases are being dealt with by the police without arresting the suspect, which may have created a gap in police practice that my noble friend’s amendment identifies. In order to give this issue appropriate consideration, I would like to take it away and consider it further before Report.

The second limb of my noble friend’s amendment would require that the written notice and any other record used the phrase “lack of evidence”, rather than the customary “insufficient evidence” used at present. It may assist the Committee if I remind noble Lords of the evidential test required by the Code for Crown Prosecutors. Paragraph 4.4 of the code states:

“Prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge. They must consider what the defence case may be, and how it is likely to affect the prospects of conviction. A case which does not pass the evidential stage must not proceed, no matter how serious or sensitive it may be”.

The absence of “sufficient evidence to provide a realistic prospect of conviction” could easily be characterised as a “lack of evidence” or as the presence of “insufficient evidence”. We could debate for some time the precise difference between the two phrases, which must be very small.

Noble Lords have said that there has been some comment in the media, in the light of recent high-profile cases, that the dropping of cases due to “insufficient evidence” could leave an outside observer thinking that there must have been something there. This reflects the reality of policing: that there has to be sufficient evidence to justify an arrest—that is, reasonable grounds to suspect that an offence has been committed. However, the investigative process in such cases will often end up with insufficient evidence, or, to use my noble friend’s phrase, a “lack of evidence”, that could still mean there was some evidence, but not sufficient to charge.

The Code for Crown Prosecutors is issued by the Director of Public Prosecutions under Section 10 of the Prosecution of Offences Act 1985. The current version, dating from January 2013, is the seventh edition of the code, and every version since 1986 has stated essentially the same requirement for,

“sufficient evidence to provide a realistic prospect of conviction”.

I say to my noble friend and other noble Lords that “insufficient evidence” seems to reflect the wording of the code test rather better and that it is the opinion of the Crown Prosecution Service that the current phrasing has been used for more than 30 years and works well in practice.

While I recognise that the amendment would not change the test itself, to change the way that decisions made under the code are communicated, even to the small degree proposed by my noble friend, could create confusion, as there would be a tendency to ask which test should now be applied and whether it means the same thing. It could also invite doubt in the minds of prosecutors, judges, defence lawyers and others as to the reliability of decisions made against different tests.

I also point out to noble Lords that there are two tests in the Code for Crown Prosecutors that must be met before charges are brought. It is perfectly possible for there to be sufficient evidence to meet the first test, but for it none the less to be contrary to the public interest to charge, for example, where a case is to be disposed of out of court by way of a conditional caution.

While Clauses 65 and 66 set a requirement to notify a suspect that they will not be charged, that notice would need to be given in both scenarios; that is, where there was insufficient evidence and where the evidence was sufficient but charges were not in the public interest. However, under my noble friend’s amendment, a suspect would need to be told in all cases that they were not being charged due to a lack of evidence, even though there must be sufficient evidence to charge to get to the point of considering the public interest test.

I can say to my noble friend that the Government are sympathetic to his aim of giving greater certainty to those who are investigated but against whom charges are not brought. We are minded to achieve this by non-statutory means so that prosecutors retain the necessary flexibility in cases where a decision is taken on public interest grounds.

On the issue of written notification of a decision not to charge, the Government consider that Clauses 65 and 66 already require such notification in all cases where an arrest has taken place. However, I would like to give further consideration to the issue of those interviewed under caution without being arrested. I hope that my noble friend will recognise that the precise wording of that notification is an issue best dealt with by non-statutory means and that, having heard my statement, he will be content to withdraw his amendment.

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[Lord Paddick]

My Lords, in moving Amendment 183, which is in my name and that of my noble friend Lady Harris of Richmond, I will speak to the other amendments in the group, Amendments 186 and 187. My noble friend is unable to be in her place this afternoon.

Amendment 183 seeks to make the initial period beyond which police bail under Section 30A of the Police and Criminal Evidence Act 1984 must then be authorised by a superintendent 56 days instead of 28, as proposed in the Bill. The impact assessment published by the Government on 26 May 2016 alongside the Bill indicates that the 28-day limit is a reasonable one and that the impact on police resources would not be arduous. However, academic research carried out by Professor Anthea Hucklesby of the School of Law at the University of Leeds suggests that an initial limit of 60 days would be necessary to avoid considerable adverse impact on the police service.

That research forms the basis of an article by Professor Michael Zander, the acknowledged expert on the Police and Criminal Evidence Act, in vol. 180 of Criminal Law and Justice Weekly entitled, “Not a Good Idea to Ignore the Evidence”. I have spoken to Professor Zander about this issue. In the article, he agrees with Professor Hucklesby’s conclusion that:

“A time-limit of 60 days would be proportionate for both suspects and the police. This would allow cases involving routine forensic analysis, which officers in my study consistently reported took an average of six weeks, to be completed”.

Professor Zander goes on to say that the Home Office has had this research for “over a year” and that the findings,

“have now been confirmed by the College of Policing’s bail report, Pre-charge Bail—an Exploratory Study, September 2016”.

My noble friend Lady Harris of Richmond tells me that the Police Superintendents’ Association of England and Wales believes that the 28-day limit could have a considerable detrimental effect on the impact of impending changes on inspectors, superintendents and magistrates’ courts.

I do not wish to detain the Committee with the detailed reasoning behind the conclusions of the academics, the College of Policing and the Police Superintendents’ Association. Suffice to say, we have no doubt excellent number-crunchers in the Home Office on the one hand saying the 28-day limit is doable, and the rest of the world on the other hand claiming that it is not. Of course we support limits on police bail, and we generally welcome the provisions in the Bill in this respect, for the reasons the Minister outlined in response to the first group of amendments. But can the Minister explain how the academics and the practitioners are lined up against the Government on the initial time limit? Amendments 186 and 187 are consequential on the main amendment. I beg to move.

[Lord Kennedy of Southwark]

My Lords, Amendment 183, moved by the noble Lord, Lord Paddick, and also in the name of the noble Baroness, Lady Harris of Richmond, would delete “28” and insert “56”, which would increase the period of pre-trial bail from 28 to 56 days. I think we all agree that bail at any point should be as short as possible, although the point that the noble Lord made needs to be considered carefully by your Lordships’ Committee. There seems little point in bringing people back to the police station, only for them to be rebailed because other work has not actually happened. People may be waiting for forensics or other things to be done, so the noble Lord has a good point. If Professor Zander and other academics suggest that this will not be effective, I hope that when the Minister responds she can answer that point. It seems pointless to bring people back just to be sent away again, given the cost of the bureaucracy for the police, the solicitors and the suspect. If she can respond to the points made, that would be very helpful.

[Baroness Williams of Trafford]

My Lords, this group of amendments would greatly reduce the effect of the Government’s reforms to pre-charge bail by increasing the length of the initial period of bail from 28 to 56 days. As I have said, the purpose of these reforms is to end up with fewer people on bail for shorter periods of time, and thereby significantly enhance the human rights protections of those who have not even been charged with an offence, let alone convicted. As such, requiring each and every person granted bail to be given bail for eight whole weeks would significantly dilute the reforms—reforms that the Liberal Democrats supported strongly when they were proposed by the coalition Government.

The noble Lord said that the intention behind these amendments is to reduce the administrative burden on the police in operating the reformed pre-charge bail system. Although I do not deny that the new system will cause additional work for the police compared to the current position, this is inevitable given that we are reforming a system currently lacking appropriate safeguards. I would also say that the Government do not look at the extra work required as an administrative burden; we see it as requiring an appropriate level of intrusive supervision to ensure that pre-charge bail is used appropriately and that investigations are progressed diligently and swiftly. That goes to the point made by the noble Lord, Lord Kennedy, about people having to return time and again to police stations.

I would also say that the figure of 28 days set out in the Bill was not arrived at by chance; we considered carefully the initial period of bail in drawing up our proposals, seeking to balance the administrative burden on the police with the need to put an end to the practice of people being bailed for months or even years at a time with no external scrutiny.

When we consulted publicly in December 2014 on the proposals, with the full agreement of the Liberal Democrats, who formed part of the coalition Government at the time, we received some 300 responses, two-thirds of which favoured the tightening of pre-charge bail and introduction of judicial oversight. Of the 135 respondents who expressed a preference, 58% favoured the model set out in the Bill, with an initial bail period of 28 days, extendable to three months by a senior officer. There was also strong support for an initial bail period of 28 days from groups as disparate as the Society of Editors, the Birmingham Law Society and the Magistrates’ Association. The Committee might also be interested to know that the Howard League for Penal Reform, a well-respected group of campaigners in this area, argued that pre-charge bail should be limited to a single period of 14 days without conditions.

I also draw the Committee’s attention to the bail principles published by the College of Policing in October 2013, which stated that:

“In the first instance, unless there are exceptional circumstances, the bail period should be no more than 28 days”.

With the greatest respect to the noble Lord, there is clearly backing for the human rights improvements that would be brought about by a 28-day initial bail period from across the spectrum of public and professional opinion.

I also point out that, as set out in the impact assessment accompanying the Bill, almost one-third of bail cases—29%—are currently resolved within 28 days. We cannot therefore see how it would be either sensible or appropriate in those cases for the police to have a choice of either keeping those individuals on bail for a further four weeks or having to issue paperwork to terminate suspects’ bail and call them in for charging.

I also draw the Committee’s attention to the other major change these reforms will make: that there will be a presumption in favour of release without bail, with bail being used only where it is both necessary and proportionate. This change in particular will allow the police to release many suspects without the administrative overhead that bail entails. It would also remove much of the stigma and inconvenience of bail from those released in this way. Because of this change, the police resources tied up administering straightforward cases will be freed up to concentrate on those cases where bail is truly necessary.

I have set out why the Government consider that the 28-day initial bail period is an appropriate first period, during which a significant proportion of cases will be resolved. The Government consider it crucial that the unfairness of keeping a person under investigation in “legal limbo” is addressed, as it cannot be right that they can spend months or even years on pre-charge bail with no judicial oversight, as happens at present.

As set out in the coalition Government’s response to the consultation, published in March 2015, the negative effects for individuals on bail and their families include emotional or mental trauma and financial implications. I also draw to your Lordships’ attention to the fact that, at the end of the coalition, in their 2015 general election manifesto, the Liberal Democrats included a proposal to place limits on the duration and conditions of pre-charge bail. Therefore, it strikes me as odd to hear the noble Lord, Lord Paddick, asking to extend the initial bail period from 28 to 56 days. I recognise his laudable aim to reduce the administrative burden on the police, but extending the initial period to 56 days will, as I have said, either leave a large number of suspects on bail for no reason or require the police to do further work to call them in. For that reason, I ask the noble Lord to withdraw his amendment.

[Lord Kennedy of Southwark]

Before the noble Baroness sits down, can she comment on some of the academic research around this, which both I and the noble Lord, Lord Paddick, referred to? I think that we are all in agreement that no one wants anybody to go on bail for a day longer than absolutely necessary but it seems a bit odd that, if all the services that the police need to investigate their cases are taking more than 28 days—maybe up to six weeks—we have bail for 28 days. They could bring people back into the police station just to send them away again because the necessary information is not available.

[Baroness Williams of Trafford]

I draw the noble Lord’s attention to the comments that I made about the presumption against pre-charge bail, which I think is compelling in the Government’s attempt to reform the system. There will be presumption in favour of release without bail—in other words, do not bail someone unless there is a good reason to put them on bail, which in many ways would free up the system. Bail should be used only where it is both necessary and proportionate. The fact that almost one-third of people are released within 28 days anyway is, I think, compelling evidence for the arguments that the Government are making.

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Moved by

[Lord Kennedy of Southwark]

187ZA: After Clause 63, insert the following new Clause—
“Scrutiny of investigatory capabilities
(1) Police and crime plans produced under Chapter 3 of Part 1 of the Police Reform and Social Responsibility Act 2011 must include an annual assessment of the capability of the police to investigate crimes within the 28-day pre-charge bail time limit.(2) The assessment must consider any—(a) changes to the number of suspects released without bail,(b) resource constraints, including in respect of the number of staff,(c) safeguarding requirements of victims, witnesses and suspects, and(d) issues around multiagency work.”

[Lord Kennedy of Southwark]

My Lords, Amendment 187A is very opportune and I hope that the Government will be pleased to see it. It stands in my name and that of my noble friend Lord Rosser and would insert a new clause in the Bill with regard to pre-charge bail. The new clause would place a requirement on police and crime plans to include an annual assessment of the capability of the police to investigate crimes within the 28-day period. Proposed new subsection (2) in the amendment states that the assessment must consider the points as listed, which are,

“changes to the number of suspects released without bail … resource constraints … safeguarding requirements … and … issues around multi agency work”.

This list is not exhaustive but all these sorts of things could come into play if the police were able to deal with people on bail within the 28-day period. An annual assessment is a valuable tool in helping to ensure that targets are met and in identifying problems.

The second amendment in this group would give a power to the Secretary of State to make by regulation a requirement for agencies,

“to cooperate promptly with police”.

As we said in a previous debate, in seeking to meet the 28-day target, the police need to be confident that other agencies are working to deliver information to them. The amendment would give the Secretary of State the power to require agencies by regulation to assist the police within the 28-day limit. I beg to move.

[Baroness Williams of Trafford]

My Lords, as the noble Lord, Lord Kennedy, has explained, these amendments seek to test the ability of police forces to complete investigations within the initial 28-day pre-charge bail time limit.

Amendment 187ZA would require police and crime commissioners to make an annual assessment of their force’s capability of investigating crimes within this initial pre-charge bail time limit. The Government consider that requiring such an annual assessment will only add an unnecessary bureaucratic burden on PCCs and forces. First, the Police Reform and Social Responsibility Act 2011 requires PCCs to produce new police and crime plans only in the year of an election, so the amendment does not build on an existing process; it requires PCCs to produce something entirely new.

The Government acknowledge that the reforms to pre-charge bail will create a new system and that forces will need to build capacity at first and incorporate changes within their business processes. However, the changes will encourage and enable police forces to resolve cases within a time limit, resulting in a more efficient system for the long term.

Although bail will be limited initially to a period of 28 days, it is important to remember that the Bill’s provisions will enable an extension to a total of three months, which can be authorised by a senior police officer in complex cases. Furthermore, the police will also be able to apply to the courts for an extension beyond three months, which will have to be approved by a magistrate. While the police will, of course, aim to resolve cases in fewer than 28 days, they will be able to extend the bail period where it is necessary to do so. The requirement for senior scrutiny of extensions will avoid the issue of the past, where bail has been extended for months, or even years, without scrutiny outside the investigation team.

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While I appreciate the intention of the noble Lord, Lord Kennedy, to assist the police in delivering these reforms, we do not believe that these amendments are necessary. I therefore invite him to withdraw Amendment 187A.

[Lord Kennedy of Southwark]

Before the noble Baroness sits down, in her response to Amendment 187ZA she talked about external scrutiny of the police. Can she say a bit more about that? Is she saying that she expects that external scrutiny to look specifically at the issues here in a broad-brush review? If so, where will they get the data from? I assume that they will be collected by the police.

[Baroness Williams of Trafford]

My Lords, there will be a number of sources of data within the police, and the annual monitoring by HMIC’s PEEL inspection programme, which considers all the police’s effectiveness, efficiency and legitimacy, will form part of that external scrutiny.

[Lord Kennedy of Southwark]

The noble Baroness can check this and come back to me, but I would expect then that the data would actually be collected.

[Baroness Williams of Trafford]

As the noble Lord says, I will go away and give him more detail on that, either before Report or on Report.

[Lord Kennedy of Southwark]

I thank the noble Baroness for that response, and at this time I am happy to withdraw the amendment.

Amendment 187ZA withdrawn.

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[Lord Harris of Haringey]

My Lords, I am slightly surprised in fact that it is necessary for the noble Baroness, Lady Walmsley, to move this particular amendment, but the fact that she has moved it means, I assume, that it is necessary. It should be—in the same way as it is incumbent on other professionals—that when the police see an issue that requires the safeguarding and protection of a child, they should take the appropriate action, which, in this particular case, would mean the sort of referral envisaged by this amendment. So on this occasion I wholeheartedly support the noble Baroness.

[Lord Kennedy of Southwark]

My Lords, Amendment 195, moved by the noble Baroness, Lady Walmsley, and also in the name of my noble friend Lord Rosser and others, would ensure that child victims of sexual abuse receive the mental health support that they need and would address the fundamental problem that, as things stand, victims too often have poor access to the support that they need. The Bill makes welcome provisions in the area of mental health—including by ending the detention under the Mental Health Act 1983 of young people in police cells—but it could go further, in particular, in recognising the mental health needs of children who have been victims of child sexual exploitation.

NSPCC research shows that children who have been abused are more likely to experience depression, anxiety and symptoms of post-traumatic stress disorder as well as self-harming and suicide. The cases of 30 children supported by the Children’s Society were analysed in its report Old Enough to Know Better?—a third of the cases noted that the young people needed mental health services because of concerns about their well-being, including self-harming episodes, suicide attempts or even episodes of psychosis that required in-patient admissions. The remaining cases also referred to the young people feeling low, depressed, anxious, fearful, or having flashbacks of their abuse. I think that the Government should accept this amendment from the noble Baroness this evening.

Amendment 221 in this group is in the name of my noble friend Lord Rosser. It would place in the Bill a duty for police forces to disclose information about children who are victims of sexual exploitation or other forms of abuse to the relevant health service commissioners. This is an important requirement to ensure that victims of exploitation can have access to the health services that they need.

[Baroness Williams of Trafford]

My Lords, I am grateful to the noble Baroness, Lady Walmsley, the noble Lord, Lord Kennedy, and the noble Baroness, Lady Benjamin, for their explanation of the amendments. We appreciate that their intention is to ensure that the proper provision is made for vulnerable or traumatised children. We absolutely agree that we must ensure that such children never fall through the gaps between services, but I put it to the noble Baroness, Lady Walmsley, that the overriding determinant of referral for health services must be clinical need. Not all children and young people who have been abused or exploited will develop a mental health problem, and intervening unnecessarily or inappropriately can in itself be harmful.

All that said, it is essential that healthcare practitioners who work with abused children and young people should have the capacity and capability to provide evidence-based treatment where needed. This will be addressed through the emerging workforce strategy, which is being put in place to deliver the key proposals in the Department of Health report on children’s mental health. The Department of Health is also introducing routine procedures so that sensitive inquiries are made to establish whether a child undergoing a mental health assessment has experienced neglect, violence or abuse. This will be an important step towards establishing a child’s or young person’s need for support. The important thing is that children and young people get the right care at the right time, based on their needs, not on a non-clinician’s view of their potential needs based on their experiences.

On amendment 221, it is worth adding that individuals, including children where appropriate, need to consent to receive treatment. Where a person indicates that they would like to avail themselves of any referral, consent can be sought for relevant personal details to be passed to the health provider, which is the proper course of action. It would be likely to be inappropriate, and in breach of data protection, automatically to pass on personal details and potentially sensitive information, even to a health provider. It may be helpful for noble Lords to know that NHS England published a Commissioning Framework for Adult and Paediatric Sexual Assault Referral Centres (SARC) Services in August 2015, which outlines the core services in SARCs and referral pathways to other services. They are now being rolled out throughout England.

On the basis of my remarks, I hope that the noble Baroness feels content to withdraw her amendment.