Police, Crime, Sentencing and Courts Bill

Lord Marks of Henley-on-Thames Excerpts

2nd reading
Tuesday 14th September 2021 Lords Chamber

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

My Lords, I too congratulate the noble Lord, Lord Sandhurst, on his excellent maiden speech. I have known the noble Lord for very many years, and it is a pleasure to be with him in this House. I look forward to working with him, particularly on access to justice.

The noble and learned Lords, Lord Falconer, Lord Judge and Lord Garnier, my noble friends Lord Paddick and Lord Beith and many others have attacked the size of the Bill. The Constitution Committee’s report was damning. Paragraph 5 stated:

“Bills of this size and complexity impede proper legislative scrutiny in Parliament. This is not the first time the House has encountered this problem. It should not be repeated.”


The fact that we are spending seven hours at Second Reading, with 66-odd speakers, time limited, debating such a raft of disparate measures makes the point. Each of the first 12 parts of the Bill would have justified a Bill of its own.

My noble friend Lord Paddick pointed out that the Long Title brings within scope amendments to cover the whole gamut of criminal justice topics, and so we can expect many. We will need a great deal of time in Committee and on Report to do this justice. This Bill arrogates power to the Executive, effectively sidelining Parliament. The noble and learned Lord, Lord Judge, and the noble Lord, Lord Blencathra, laid bare the way this Bill usurps the role of Parliament with wide and unacceptable regulation-making powers.

There is, of course, much that we welcome: the earlier rehabilitation of offenders, long worked for by my noble friend Lord Dholakia, and the police covenant, on which my noble friend Lady Harris spoke so knowledgably, to make sure officers and retired officers get the support they deserve. In principle, we welcome the regulation of the intrusion of extraction of information from mobile phones, but innocent victims of offences must be protected and not deterred from pursuing prosecutions by the fear of losing their devices and having their private information trawled through by strangers. The noble and learned Lords, Lord Judge and Lord Thomas of Cwmgiedd, highlighted the difficulties.

However, this Bill seriously threatens fundamental liberties. The noble Baroness, Lady Williams, denied any such threat. We disagree. The right to peaceful assembly and protest is fundamental in a democracy and it is axiomatic, as so many have said, that protests are noisy and often unruly. Yes, they may cause disruption, inconvenience and nuisance, but that is all part of dissent being permissible and being heard. My noble friend Lord Oates and the noble Baroness, Lady Bennett, passionately argued this case in relation to climate change. Certainly, Greta Thunberg’s original solo school demonstrations were not noisy, but Extinction Rebellion, and no doubt the noble Baroness, Lady Bennett, are squarely in the Government’s sights.

The “Today” programme this morning reported on the anxiety of young people about climate change—on the reluctance to have children, on the feeling that the world is doomed. This is not our world now, but theirs. Are the under-35s represented in Parliament? No. Do we, the over-50s, understand their concerns? At an intellectual level, yes. But as a personal threat? Bluntly, no. As one summed it up, “For us, it is personal.” How are they to be heard? Through protests. Will they be noisy? Yes. Offensive? Probably. May they

“result in serious disruption to the activities of an organisation”,

using the words of the Bill? What about demonstrations outside company meetings or political meetings? The Constitution Committee rightly concluded that the noise trigger provisions offend against Article 10 convention rights to freedom of assembly. And who makes the regulations to define “serious disruption”? Why, the Secretary of State, of course—no matter their age, nor how authoritarian or illiberal their attitudes. The noble Baronesses, Lady Jones and Lady Chakrabarti, my noble friend Lady Miller, the noble Lord, Lord Dubs, and others made these points graphically.

The sentencing provisions in the Bill are overwhelmingly retrograde, pandering to the tabloid view that longer sentences reduce crime. But all the evidence is to the contrary, as my noble friend Lord Beith pointed out—granted that locking up people for longer affords the public the temporary protection of keeping some offenders in custody. But the price of that protection far outweighs any benefit. We pay the cost of imprisoning more people than any other nation in western Europe, but we also institutionalise offenders; we break up families; we make offenders less employable and therefore more dependent on the state; we overcrowd our prisons, which have become violent academies of crime; and so we increase reoffending and the human, social and financial cost of divided and criminalised communities. Yet the Bill establishes more minimum sentences; restricts the discretion to depart from some in cases where there are exceptional circumstances; increases many terms to be served from half to two-thirds of notionally determinate sentences; and ends automatic release at the halfway point for many sentences.

On community sentences, we see increased curfew hours and periods, but nothing about increasing help for offenders to turn their lives around. There is provision for recall to custody for breach of community orders, with short custodial penalties, in the face of all the evidence that these do not work and have a disproportionate effect on women and minorities and an adverse effect on families—points persuasively made by the right reverend Prelate the Bishop of Gloucester.

We need fewer offenders in prison and more looked after in the community. We must address the personal issues that caused their offending: mental ill-health; histories of physical and sexual abuse; drug and alcohol addiction, as the noble Baroness, Lady Meacher, said; homelessness; and missed educational opportunities. None of this is new. But it is desperately sad that a Bill said to be directed at overhauling our criminal justice system is misguidedly focused on imprisoning more people for longer, on reducing judicial discretion and on abandoning important principles that have long underpinned our justice system. We will support the attempt of the noble Baroness, Lady Meacher, to increase the use of restorative justice, for all the reasons she gave.

We agree with the noble and learned Lord, Lord Brown of Eaton-under-Heywood, that we must now end the utter scandal of detaining IPP prisoners indefinitely, way beyond their tariff term. We will support the Children’s Society-backed amendments to ensure that serious violence reduction strategies prioritise protecting children and young people. We will oppose groundless stop and search for persons who have been once convicted of any offensive weapons offence, even on a joint enterprise basis. That is an unjust and racially divisive proposal.

On encampments, we see no reason for criminalising trespass with intent to reside, for the reasons explained by my noble friends Lady Bakewell and Lady Brinton, and by the noble Baroness, Lady Whitaker. The proposal is unnecessary; there is already a wide range of eviction powers in existence. The proposed new powers rely far too much on the subjective judgment of the police. This proposal is discriminatory; it is also one-sided. If encampments are to be restricted, we need adequate local authority provision of safe and approved sites for the Traveller community.

On sentencing for assaults on emergency workers, we agree—but why not include retail workers, transport workers and public service staff? This provision needs rethinking to extend it to protect those providing a public service.

On remote hearings, we agree with the proposals for more—and more efficient—such hearings in appropriate cases beyond the pandemic. But we also agree with the noble and learned Lord, Lord Thomas, and the noble Lord, Lord Pannick, that such cases do not include jury trials. Jury trials depend, as the noble Lord, Lord Pannick, said, on working relationships between judges and juries; but they also depend, crucially, on discussion and debate among jurors, which cannot be properly achieved on Zoom or Teams. For my part, I have long said that I would like to see more public broadcasting of proceedings—at the discretion of judges, certainly—for the purpose of improving open justice, but that is a different matter.

Finally, noble Lords have spoken of the missed opportunity to add more protections for women and girls. The noble Lord, Lord Pannick, argued for an amendment to be moved by the noble Baroness, Lady Hayman, which we will support, extending the upskirting legislation to cover photography without consent of women while breastfeeding. We agree with the noble Baroness, Lady Greengross, and others that serious violence should explicitly include domestic and sexual abuse. We also agree with my noble friend Lady Brinton, the noble Lord, Lord Russell, and others who will propose amendments to increase the surveillance of offenders and introduce further measures on domestic violence.

There is much to debate in the Bill and much of it is not good.

Police, Crime, Sentencing and Courts Bill

Lord Marks of Henley-on-Thames Excerpts

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

[Baroness Meyer (Con)]

My Lords, I want to make a point about something that is not directly related, but which I found quite odd. A few weeks ago, I was arrested for speeding. It was the first time in 40 years that I had actually done anything wrong while driving. Interestingly, the notice I received clearly said that the fact that I had no other points on my licence was irrelevant because that would be unfair to others. I do not understand how, if you have been a good guy and have never done anything wrong, that cannot be a positive factor, yet in this Bill we are accusing people and putting them immediately in the negative, even though there is no serious proof. I therefore support the amendment.

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

My Lords, on behalf of these Benches, I too support these amendments, for all the reasons given by the noble Lords who tabled them. Of course, the principal amendment seeks regulations and lacks specificity. It does not seek to define all the circumstances for retaining, recording, using or disclosing personal data relating to hate crimes or non-criminal hate incidents or otherwise. That is sensible, and it is now for the Government to accept the principles that underly this amendment and come forward with proposals. Of course, I accept the caution which the noble Viscount, Lord Hailsham, brings to the question of regulations that are unamendable; nevertheless, this is a complex area that needs a complex response.

The principles engaged are important. As the noble Lord, Lord Moylan, pointed out, this amendment is not concerned with established hate crime or in any sense with defending hate crime. It starts from the principle that personal data deserves protection from the arbitrary retention, use and disclosure by the police, enforcement agencies and authorities generally, and the converse principle that disclosure should be subject to the rule of law and to principles of accountability—points made by many in this debate, and briefly but eloquently by the noble and learned Lord, Lord Judge, a few moments ago.

The conduct with which these amendments are concerned is not provably, still less proved, criminal—a point made by many. They seek to control the arbitrary retention, use and disclosure of personal information, based on a subjective perception of a citizen’s motivation, in the absence of solid evidence or proof. It is subjective, one notes, because it is often based on the subjective view of another citizen—no better informed, necessarily, than the citizen about whom the information is then held.

The noble Lord, Lord Moylan, spoke on the basis that subsection (7) was in a different category from the rest of the clause. I prefer the way that the noble Lord, Lord Sandhurst, put it, when he set out the principles that underlay the whole of this amendment. It is not often that I find myself agreeing with almost everybody in the House, including, at one and the same time, the noble Lord, Lord Forsyth of Drumlean, and the noble Baroness, Lady Chakrabarti—but I do. Even on this occasion, although I understand the hesitations voiced by the noble Baroness, Lady Jones of Moulsecoomb, she and the noble Lord, Lord Cashman, accepted the need for regulation in this area.

The amendment is directed at achieving sensible limitations on the retention, use and disclosure of data to others. This is an area where the Government ought to act and that has become controversial, with the emergence of guidelines that are, frankly, offensive to justice and parliamentary democracy. I therefore invite the Minister—I believe that I speak for the House in doing so—to return to the House with proposals that accept the principles that we have enunciated and will give rise to amendment of the Bill, to its vast improvement.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, as the noble Lord, Lord Marks, said, it is unusual to have such unanimity across the House in Committee on something that is superficially a very complex matter. I agree with two noble Lords in particular. The noble and learned Lord, Lord Judge, was very succinct: he said that the information that the police retain should be subject to parliamentary or government control and not to police guidance. I also agree with the noble Lord, Lord Marks, in being cautious about regulation and having a full role for Parliament in any rules that are introduced.

I am sure that this is a very complex matter. I have just been wondering whether, in my role as a sitting magistrate in London, I would see this information. I obviously routinely see the police national computer—PNC—list, which includes convictions, cautions and bail conditions. If we go ahead and have a “bad character” application for a trial, additional information may be disclosed to us—to do with allegations of, say, a domestic abuse nature.

I was also thinking about my role sitting as a magistrate in family court, where I routinely see allegations that have not been substantiated in any court but have been recorded over many years in social services reports. I think that it is right that I see those allegations when we as a court are making decisions about the way that children should be treated in the context of a family court.

I give those two examples, which are different to what noble Lords have spoken about, to acknowledge the complexity of the situation with which we are dealing. I am sympathetic to the points that have been made by noble Lords, but I am also sympathetic to the Government addressing this with an open mind. I will listen with great interest to what the noble Baroness says about whether they propose bringing back any amendments at a later stage of the Bill.

--- Later in debate ---

[Baroness Jolly (LD)]

My Lords, for two minutes, I want to throw a pebble into what seems like calm water. I totally support everything that the right reverend Prelate the Bishop of Gloucester has said. However, we need to ask ourselves: what is a child? If somebody talks to me socially and says, “Do you have any children?”, I say, “Yes, I have two.” They are grown-up men who flew the nest a long time ago.

However, adults with a learning disability are sometimes cared for by their parents, if they have chosen that the child should not go into care. Their family unit is mum and dad, who are in their 70s or 80s, and somebody with a learning difficulty who might be in their 50s. That is not what we think of as a nuclear family, but we still have to care for the child of those elderly parents, and when one parent dies there are all sorts of problems. Mencap has done a lot of work on this and I have worked with it on it. We really need to be careful about how we legislate for adults who have the mental capacity of a child.

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

My Lords, I am extremely grateful to the right reverend Prelate for not just these amendments but the care and time she gives to compassionate consideration of the criminal justice system generally. I am also grateful to the other authors of this group of amendments. We on these Benches fully support them.

In this House, we have repeatedly stressed the special needs of women in prison and the effect of custody on women and their children. I entirely take the point made by my noble friend Lady Jolly and the noble Viscount, Lord Hailsham, that there are others who are cared for who need our concern. In terms of legislation, we have achieved no more than lip service. These amendments would put that right by imposing real duties on courts and judges to gather the necessary information and consider the effect of custody on children in making bail and sentencing decisions for their primary carers.

Duties would be imposed on the Government to collect the data necessary to enable informed decision-making about the effect of imprisoning primary carers on the lives and futures of their children. I agree with the noble and learned Lord, Lord Garnier, that Amendment 218 on data collection could—and should—have gone further than requiring data on the number of prisoners as primary carers and the number and ages of the children affected. For example, it would be helpful to include data as to the arrangements made for looking after those children following the imprisonment of their primary carers. For instance, we should know how many children have to be taken into care, a point made by the noble Lord, Lord Bradley. We can and should consider that further on Report.

Noble Lords have had the benefit of the excellent briefing from the charity Women in Prison. The statistics it has collated tell a grim story. More than 53,000 children each year are affected by their primary carers being sent to prison and 95% of children whose mother is imprisoned are forced to leave home. One sentence encapsulated it all for me: “We’ve been sentenced,” says a mother, “but they’ve been sentenced with us.”

This point was at the heart of the opening speech of the right reverend Prelate the Bishop of Gloucester. Parental imprisonment is for children a well-recognised predictor of mental ill-health, poor educational attainment and employment prospects, and future criminality for the children concerned. It is often said that criminality runs in families. The noble and learned Lord, Lord Thomas, said that in answer to the noble Viscount, Lord Hailsham. The extent to which we fail the children of carers in the criminal justice system tends to make that a self-fulfilling prophecy.

The problem is made worse by the preponderance of short sentences among those passed on women offenders. Some 62% of sentences passed on women are for terms of six months or less, despite all the evidence that such sentences do far more harm than good, that offenders who receive short sentences are generally far more successfully rehabilitated with community sentences than with prison sentences, and that the damage to children of imprisoning their primary carer stems principally from the initial, sudden separation—the loss of home, the loss of parental care, the dramatic changes for children, that follow immediately on parental custody, often without any preparation or warning.

In the Joint Committee on Human Rights 2019 report on children whose mothers are in prison, the committee quoted the 2007 report of the noble Baroness, Lady Corston:

“[t]he effects on the … children every year whose mothers are sent to prison are … nothing short of catastrophic.”


The committee cited the evidence of a girl called Georgia of 15, who I think is the girl whose evidence was mentioned by the noble Baroness, Lady Massey of Darwen. She said:

“On the day of her trial, I was at home in the living room, dancing to MTV, and I got a phone call from my brother. He said, ‘Mum’s gone’. I thought he was joking. I had to ask him about five times. From being the young girl who was dancing in the living room, I automatically took on my mum’s role. I did not even have time to adjust to the custodial sentence. It just leaped.”


The amendments in this group rightly cover bail—that is Amendment 110—as well as sentencing decisions. The effect upon children of a remand in custody of their primary carer may be even worse than that of a prison sentence. It usually comes at the very beginning of the criminal process, often without any warning at all, and its effect is immediate, devastating, and of uncertain duration. Against that background, it is highly significant, and frankly shaming, that a very high proportion of women remanded in custody—66% of magistrates’ remands, a higher figure than that given by the noble Lord, Lord Bradley, and 39% of Crown Court remands—do not ultimately lead to a custodial sentence, largely invalidating the original remand decision. Amendment 110 would make bail more likely for primary carers, which would be a real benefit.

For sentencing courts, the duties proposed in Amendments 215 to 217 would lead to an immediate improvement in sentencing practice, as judges complied with these duties imposed by law in the interests of the children, as the noble and learned Lord, Lord Thomas of Cwmgiedd, stressed, where until now they have been subject only to non-binding sentencing guidelines, a point made by the noble and learned Lord, Lord Falconer of Thoroton. For that reason, I disagree with the point expressed by the noble Lord, Lord Carlile of Berriew, who questioned whether these amendments were necessary at all. I completely agree with the view expressed by the noble and learned Lord, Lord Garnier, that judges and recorders are hugely concerned not to send women who are primary carers for children to prison. But the fact remains that far too many primary carers do get sentenced to prison. I believe that over time, these amendments—because judges and recorders follow the law—would also lead to a general change of culture among the judiciary, and possibly in government as well, preventing courts sending primary carers of children to prison.

Before closing, I will add a word or two about sentencing pregnant women to prison. It is particularly welcome that Amendments 216 and 217 cover the special position of the unborn children of pregnant women facing custody. We have all been appalled by the report last month of Sue McAllister, the Prisons and Probations Ombudsman, into the death of Baby A in September 2019 at HM Prison Bronzefield, and the care of Baby A’s mother in the time leading up to and around her baby’s birth, when she was left alone in her cell—an account also mentioned by the right reverend Prelate. But it should be remembered that Baby A’s mother was described in that report as

“a vulnerable young woman with a complex history who found it difficult to trust people in authority.”

That description can be applied to the majority of pregnant women who find themselves in prison and, indeed, to the majority of young women prisoners. We should take care not to forget that, particularly given that three out of five women in prison have minor children. I urge the Government to respond positively to these amendments.

Police, Crime, Sentencing and Courts Bill

Lord Marks of Henley-on-Thames Excerpts

Lords Hansard - part two & Committee stage
Wednesday 10th November 2021 Lords Chamber

Moved by

[Lord Marks of Henley-on-Thames]

192A: Clause 101, page 86, line 20, leave out “there are exceptional” and insert “such a sentence would be contrary to the interests of justice having regard to”
Member’s explanatory statement
This amendment, along with Lord Marks’ amendment to page 86, line 23, would remove the requirement for the circumstances to be exceptional before a judge was empowered to decline to impose the minimum sentence (for offences of threatening with weapon or bladed article) and would entitle the judge to do so where in the circumstances the judge concluded that such a sentence would be contrary to the interests of justice.

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

My Lords, all the amendments in this group are in my name and that of the noble Lord, Lord Pannick, whom I thank for adding his name to them. We have of course covered some of the ground covered by our amendments in the last group, but there remains, I suggest, considerable scope for developing these very important arguments.

These amendments are put down with two objectives in mind. The first and principal objective is to preserve judicial discretion in sentencing, which the Bill threatens seriously to undermine or remove. The second objective is to express our concerns that minimum sentences do nothing to improve our penal system or our sentencing practice, that they impede rather than foster reform and rehabilitation, and that they fuel sentence inflation.

Clause 101 would require a sentencing judge to impose minimum sentences for a number of offences in the absence of “exceptional circumstances” relating to the offence or the offender which would justify not imposing the minimum sentences. Clause 101(2) relates to the minimum sentences—called in the code “appropriate custodial sentences”, but minimum sentences none the less—applicable under Section 312 for, as we have heard, offences of threatening a person with an offensive weapon or a bladed or pointed weapon or article. For those offences, the code prescribes minimum sentences of a four-month detention and training order for 16 and 17 year-olds; a six-month detention in a young offender institution for 18 to 20 year-olds; and for those aged 21 or over, six months’ imprisonment. Those sentences currently apply unless there are

“particular circumstances which … relate to the offence or to the offender”

and which “would make it unjust” to pass such a sentence “in all the circumstances.”

The new provision proposed in the Bill would change that test to require the passing of the minimum sentence unless the court concluded that there were “exceptional circumstances” which related to the offence or to the offender and justified not imposing a sentence. The significant change is the elevation of the requirement for there to be “particular circumstances” to a requirement for there to be “exceptional circumstances” before a judge is entitled to depart from the required minimum sentence. At first blush, that may not seem to be a much more onerous requirement, but it marks a very important change.

I confess that I was a little surprised that the Minister ducked the challenge from my noble friend Lord German to define the term “exceptional circumstances”. He shakes his head, but I felt he did. My understanding has always been that, in law, the word “exceptional” has a well-recognised meaning. I have no doubt I will be corrected by the noble and learned Lord, Lord Judge, if he disagrees, but “exceptional” in this or similar contexts means circumstances that are completely out of the ordinary. Judges regard themselves as bound not to find exceptional circumstances unless that high bar is met.

On the previous group, the Minister drew the distinction between minimum and mandatory sentences. He is right up to a point, but the move to a requirement for “exceptional circumstances” reduces that distinction by a considerable margin. The noble Baroness, Lady Chakrabarti, described them as “mandatory minimum sentences”. The fact is that the Government are trying to reduce the scope to depart from the minima. They are trying to reduce the number of people not getting those minimum sentences. My noble friend Lord Beith hit the point when he asked whether the Government were unhappy with the high number of departures from the minima on the present phraseology, which I suggest shows the fallacy in the Minister relying on the number of departures there are at present.

The noble Viscount, Lord Hailsham, was right in describing this as a proposal for a default sentence. In practical terms, a judge might well believe that the particular circumstances of the offence and/or the offender—under the current phraseology—were such that the justice of the case required a custodial sentence of less than the minimum level or a non-custodial sentence. “Particular” in that context bears its ordinary English meaning. It refers to the circumstances that apply to the offence in question—that particular offence —or to that individual offender. However, the use of the word “exceptional” is calculated to require the sentencing judge, in the majority of cases, to pass the minimum sentence even if the judge took the view that the minimum sentence might cause injustice. That is the weakness of these provisions.

Clause 101(3) would impose a minimum sentence of seven years for a third class A drug-trafficking offence, subject to exactly the same test. Clause 101(4) would impose a minimum sentence of three years for a third offence of domestic burglary—again, subject to the same test. Clause 101(5) would impose the same minimum sentences for a repeat offence of carrying an offensive weapon or possessing a bladed or pointed article in a public place or in educational premises as those which apply for any offence of the threatening offences to which subsection (2) refers—again, on the same conditions.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

My Lords, these amendments seek to ensure that the courts depart from imposing a minimum sentence, to use the words of the amendment, only where it would be

“contrary to the interests of justice”

to do so, “having regard”—and then it refers to the particular requirements in the Bill on the offender and on offending. “Interests of justice” is not defined. I do not complain about that, because the phrase is used elsewhere and the courts know what it means. I do not want to go over old ground.

It is already the case that a court has the discretion not to impose the minimum sentence where there are particular circumstances relating to the offender, the nature of the offence or, in the case of repeat offending, the nature of the previous offence that would make it unjust to do so. I underline the point that whether that exception, however phrased, is met is for the judge to decide, based on the particular facts of the case. It is for Parliament to set the minimum sentence, if it wants to, and to set the “exceptional” provision—whether that is exceptional circumstances or however else it is defined. It is then for the judge to apply what Parliament has said.

As I said on the previous group, concerns have certainly been raised that offenders too often receive sentences below the minimum term. That both fails to provide an appropriate level of punishment that reflects the severity of the offence and undermines any sensible use of the word “mandatory” in this context. Let me give a couple of examples. Among adult offenders in 2020, at least—and I will explain my “at least” in a moment—50% received a sentence below the minimum term for third-strike domestic burglary. I said “at least” because the figures do not indicate whether these cases include early guilty pleas, for which they could get a reduction of up to 20%. Even allowing for that, at least 50% received a sentence below the minimum term. Of adults convicted of repeat possession of a weapon or bladed article, at least 21%—over a fifth—received a sentence below the minimum term.

I heard what the noble and learned Lord, Lord Thomas, said and I am not going to beat about the bush, either. I am trying to be clear. There may well be a difference of opinion around the Committee, but at least let us identify it clearly. With this provision, we seek to ensure that courts depart from the minimum sentence only in exceptional circumstances. Those are clear words, and they mean what they say.

We believe that the test of exceptional circumstances is both suitable and important. Not only does it help to address problems that have been escalating in our communities for some years, especially with regard to knife crime, but it will create greater consistency in the statutory provisions on minimum sentences. The change is therefore intended to reduce the circumstances in which the court will depart from the minimum term, ensuring that this important safeguard is used only where the court considers that there are exceptional circumstances, pertaining to the offender or the offence, that would make the minimum sentence unjust.

The changes align the criteria used for these offences with the criteria for passing a sentence below the minimum term in relation to offences involving firearms, where the proviso of exceptional circumstances is already in the law. However, I underline that the judicial discretion for the court to fully consider the facts of the case before it and decide on the appropriate sentence in line with the statutory framework is therefore retained.

I listened carefully, as I know the noble and learned Lord would expect me to, to the noble and learned Lord, Lord Judge. I think we may stray into almost philosophical areas, albeit very important ones, as to what a sentencer ought to do and perhaps even what we mean by “unjust” and where justice lies.

Parliament sets out the statutory framework. If the Bill is passed, Parliament will say that the minimum sentence is X years and that the proviso is exceptional circumstances. It is then for the judge to apply what Parliament has set out. That is the way our system operates. We can have an interesting debate about whether, if a judge does that, the judge can be doing something that is “unjust”. I fully understand where the noble and learned Lord is coming from, looking at “unjust” in a broader sense, but there is a basic justice in Parliament, which is ultimately where power resides, setting out what the minimum sentence and the exception should be and then leaving it for the judge to apply that exception on the facts of the case.

I heard very clearly the point made by my noble friend Lord Hailsham about whether longer sentences actually help. Again, that takes us into a whole different area. I mean no disrespect by not replying to him at length but we believe the sentences here are appropriate and suitable.

When the noble and learned Lord, Lord Thomas, concluded by saying, “Are we not to require our judges to do justice?”, I do not know whether he was intentionally paraphrasing the famous argument of Abraham to the Almighty. When the Almighty is going to destroy Sodom and Gomorrah even though there are some righteous people there, Abraham says to the Almighty, “Will the judge of all the earth not do justice?” I hear very strongly that the ultimate requirement is to do justice, but I emphasise that in our system we start with the parliamentary legislation. That is why we collectively, here and in the other place, bear such a heavy burden. It is for us to set out the statutory framework and then for our judges and courts to apply that framework. That is ultimately the way, I suggest, that justice is done in our system.

I do not want to lecture the Committee any further on jurisprudential matters. I invite the noble Lord to withdraw the amendment.

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

My Lords, I am grateful for the speeches that we have heard in this interesting debate, particularly by those who have the most sentencing experience, the noble and learned Lords, Lord Judge and Lord Thomas. I am also grateful to the noble Viscount, Lord Hailsham, and to the noble Lord, Lord Ponsonby, for his indication of the Labour Party’s support.

While I will withdraw the amendment at this stage, I will return to it on Report. My concern is that the Minister, and I am grateful for the care that he gave to his response, failed to appreciate quite how loyal judges are to the law. Where the law requires a judge to find that exceptional circumstances exist before making a departure from the minimum sentence, he will do so loyally.

The point that both noble and learned Lords made is that it is simply wrong for the law to require judges, where they might have found that the circumstances of an offence or an offender dictate that the just sentence is less than the minimum, to be in the position that they have to say, “I cannot here find that the circumstances are exceptional—that is, completely out of the ordinary—and although I believe that the sentence I am constrained to pass is unjust in the sense that it is the wrong sentence, I nevertheless have to do it.” That is the result of the loyalty judges feel to the law—the noble and learned Lord, Lord Judge, mentioned the judicial oath—and is a weakness of this proposed provision, which puts political dogma above the need to do justice. Although I will withdraw my amendment now, I hope that, given the speeches we have heard, in the next few weeks or months, before Report—depending on when that is—we can talk to the Minister, take this matter further, and see if we can get some movement. Saying that, I beg leave to withdraw the amendment.

Amendment 192A withdrawn.

--- Later in debate ---

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

My Lords, we have heard which amendments are in this slightly disparate group. On Amendment 195, I am in agreement with the noble Viscount, Lord Hailsham, and in disagreement with the noble and learned Lord, Lord Falconer, I am afraid, because it would require the courts to pass a minimum sentence of seven years for rape in the absence of exceptional circumstances. I fully accept that this amendment is motivated by a determination to respond strongly to the completely horrible offence of rape, and by a desire to be seen to be determined to tackle and reduce it by bringing offenders to justice and dealing with them with the full force of the criminal justice system through long sentences of imprisonment. Nevertheless, I cannot support the amendment.

On these Benches, we will take lessons from no one on how serious a crime rape is. Members on these Benches have spoken repeatedly of the need to increase the rates of reporting rape, the approach to investigating rape, ways of increasing rates of prosecutions and the rate of successful prosecutions for rape, and ensuring that courts, juries and the public—young and old—are fully aware of the meaning of consent. But we do not believe that a minimum seven-year sentence for rape will increase the number of victims prepared to report offences—particularly in cases where the assailant is known or related to them—or reduce the difficulty for the police in investigating rape, securing the co-operation of parties close to the case, securing witness statements or getting witnesses to give evidence in court. Nor do we believe that such a sentence would make it easier to secure convictions from juries, particularly in cases they might regard as borderline, against the background of appallingly low conviction rates.

We have heard many times about the background of failure to bring rapists to justice. In the year to March 2020, nearly 59,000 cases of rape were recorded by police in England and Wales. Of those, there were only 21,000-odd prosecutions and an appallingly low 1,400-odd convictions. We have also heard many times that in 57% of cases investigated by the police in that year, the victims withdrew their support for the prosecution. There is no evidence at all relied upon by the noble and learned Lord, Lord Falconer—or, I suggest, in existence—that minimum sentences of seven years, or of any figure, would improve that position.

Every lawyer, investigator or judge who has ever had anything to do with criminal courts knows the extent to which one case of rape differs from another. The noble Viscount, Lord Hailsham, is right about that. Although every case represents an egregious abuse, a standard minimum sentence cannot be justified. That brings me back to the points I made in the previous group about the importance of judicial discretion and the inappropriateness of a test requiring a judge to find exceptional circumstances before being permitted to pass less than the minimum sentence.

There is a minor point as well about the drafting of the amendment: it is unclear as to the age of the offender. Proposed new subsection (1)(a) applies the clause to offenders “aged 18 or over” at the date of the offence, while proposed new subsection (3)(a) applies to an offender under 18 at the date of conviction. There is an internal inconsistency which the noble and learned Lord may wish to consider.

Rape is a scourge. We must address it, reduce it and bring offenders to justice, as well as change the culture in our society that tolerates it and, as the noble and learned Lord said, does not control the appalling epidemic of violence against women and girls. But minimum sentences will do none of that.

Amendment 196 seeks to increase the sentence for naming a complainant. The noble and learned Lord is absolutely right that this offence can do great harm by removing anonymity; it can cause considerable distress and often psychological damage as well. Increasing it to a two-year maximum on indictment or 12 months on summary conviction is a sensible change to the law, which we support.

Amendment 197 would add

“the abduction, sexual assault, and murder of a person”

to the offences in Schedule 21 to the Sentencing Code for which a whole-life sentence is a starting point. I take it to mean that the whole-life sentence would be a starting point if all three elements were present: the abduction, the sexual assault and the murder.

[Lord Falconer of Thoroton (Lab)]

That is correct.

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

The only reason I make that point is that there was a misunderstanding—not inherent in the noble Viscount’s speech, but that might have arisen from his speech—where he talked of sexual assault as being a very varied offence; of course it is, but here it is combined with abduction and murder.

I think the starting point argument made by the noble and learned Lord is valid because the starting point applies on the statute if the court considers that the seriousness of the offence, or a combination of the offence and one or more offences associated with it, is exceptionally high. It is only a starting point: it does not mean that judicial discretion is removed or even significantly fettered if particular circumstances applied to make that an inappropriate or unjust sentence. I see no reason why that should not be added to the list, which we already have, of heinous offences for which a whole-life order is a starting point. But I fully agree with the noble and learned Lord that we need to keep whole-life orders to a very restricted class of cases because they are sentences without hope.

Finally, the noble Baroness, Lady Massey, and the right reverend Prelate the Bishop of Derby—whose position was eloquently expressed by the right reverend Prelate the Bishop of Durham in the earlier group—oppose Clause 103 because new Section 321(3B) of the code would permit whole-life orders for those aged 18 to 20. We agree, for all the reasons they gave, and the reason that the noble and learned Lord, Lord Falconer, gave, that that is inappropriate. Whole-life orders should not be imposed in such cases.

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[Lord Wolfson of Tredegar (Con)]

My Lords, this is a drafting amendment to Clause 107. Its purpose, as I hope has been explained, is to prevent a prisoner who is serving a sentence for an offence which, at the time it was imposed, did not carry a maximum penalty of life imprisonment, having their release date changed retrospectively from the half-way to the two-thirds point.

Such an offender should not be made subject to the two-thirds release provisions of Clause 107 should the maximum penalty for their offence be increased to life at a later date, after they were sentenced. Let me give an example that I hope the Committee will find helpful. An offender is sentenced for an offence that currently carries a maximum of 10 years’ imprisonment. They receive an eight-year determinate sentence. That sentence is not caught by the two-thirds release requirements because the offence does not carry a maximum penalty of life imprisonment, so the offender is given a half-way release point. Now let us assume that, three years later, the Government increase the maximum penalty for that offence to life imprisonment. Without this amendment, the offender would have their release point retrospectively amended from the half-way to the two-thirds point of the sentence.

That was not the intention of Clause 107, and it is important that we correct this now. With this amendment, Clause 107 is future-proofed appropriately and as intended. It applies to those sentenced for offences that are increased to a life maximum in the future, but applies only to those sentenced after that increase in the maximum sentence becomes law. The amendment will ensure a fair and consistent approach to such offences. For those reasons, I beg to move this amendment.

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

My Lords, we support these amendments. It is obviously right to remove the retrospection and we congratulate whoever spotted the anomaly and brought the amendments to the Committee.

Amendment 205 agreed.

Police, Crime, Sentencing and Courts Bill

Lord Marks of Henley-on-Thames Excerpts

Lords Hansard - Part 1 & Committee stage
Monday 15th November 2021 Lords Chamber

[Lord Woolf (CB)]

I was not intending to contribute to this debate, but I think decency requires me to do so, because looking in the past, I was the person who perhaps failed the noble Lord, Lord Blunkett, in persuading him at his time as Home Secretary of the extent of the error which he was making. I think he may remember that I did attempt at the time to dissuade him from this course, but I obviously failed and we see now the consequences of the biggest mistake made in the criminal justice system during my period as a judge. I hope that the House will bear in mind that, if a mistake of that nature is made, there is a huge burden on each one of us to try, as far as we can, to put it right.

This is the first time I have contributed on this subject and I apologise to the House for not doing so earlier. For reasons of health, I was not for a time taking part in the activities of the House, but I thought the House would like to know how I feel about this as a former Lord Chief Justice and the person who carried out an important report into prisons, which I hoped would provide a better system than we have now.

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

My Lords, I am humbled by speaking at the end of an extraordinarily strong debate. It was eloquently and, as many have pointed out, courageously opened by the noble Lord, Lord Blunkett. He has been supported by many movers of amendments and others, among them the noble and learned Lord, Lord Brown of Eaton-under-Heywood, whose campaigning against IPPs has been a model for us all. I hope the Government will take note of the unanimity in this House on the issues surrounding IPPs.

From these Benches, my noble friend Lady Burt, with her extensive experience of working in the Prison Service and of the injustice of IPPs to individual prisoners, has spoken movingly to her amendments and supported all the amendments in the group, so I will add only very briefly to what she and others have said.

These amendments give this House a chance to send this Bill back to the House of Commons to give it an opportunity to right a wrong that has for far too many years been a scar on our penal system, on our national self-esteem and on our international reputation for fairness and justice. The continuation of the unwarranted detention of IPP prisoners—1,700 never released and 1,300 recalled for breach, often for utterly trivial reasons—has kept them incarcerated for years on end, way beyond their tariff terms, without any moral, intellectual, philosophical or human justification of any kind.

We support the ending of this injustice unreservedly. At Report, we will vote for whatever of the amendments then before the House appear best placed to end this disgrace as quickly as possible.

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[Lord German (LD)]

My Lords, I would like to add a little to the evidence which has already been provided to the Minister, but he must of course know the evidence which has already been made available to him. Just in case it has not, I repeat what the recent sentencing White Paper says: short sentences

“often fail to rehabilitate the offender or stop reoffending.”

It goes on:

“A Ministry of Justice 2019 study”—


an analytical exercise, full of figures—

“found that sentencing offenders to short term custody with supervision on release was associated with higher proven reoffending than if they had instead received community orders and/or suspended sentence orders.”

In other words, the Government’s own evidence points to supporting these amendments—not necessarily in the same words, but certainly the thrust of them. We should remember that, pre-pandemic, nearly half of those people who were sentenced to custody in England and Wales were subject to short sentences of less than, or equal to, six months.

There are many reasons why we must support the change—more effectively reducing reoffending, dealing with issues such as drug use and producing better outcomes for women. Short prison sentences do not provide sufficient time for addressing those issues, such as dealing with substance addiction, or benefiting from any education and training facilities on offer. There may not even be sufficient time for the prison authorities to devise a programme to address the prisoner’s needs on release day. The best we can say about short sentences is summed up by one of the former Conservative Prisons Ministers, of which there have been many in recent years, who said that short prison sentences are

“long enough to damage you but not long enough to heal you.”

Almost two-thirds of prisoners sentenced to these terms of less than 12 months will reoffend within a year. The amazing statistic is that nearly half of adults are convicted of another offence within one year of release, but anyone leaving custody who has served two days or more is now required to serve a minimum of 12 months under supervision in the community. As a result of not fulfilling their supervision orders in some minor way, 8,055 people serving a sentence of 12 months or less, and sometimes of only a few days, were recalled to prison in the year ending December 2020.

What has happened to the Conservative plan to secure a reduction in the use of short sentences? I think I know the answer, but it would be helpful if the Minister could confirm to the House what has happened to this idea. The Bill can address this issue. To finish with the words of a former Conservative Secretary of State:

“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.”


Offenders are less likely to reoffend if they are given a community order. These are much more effective in tackling the root causes behind criminality.

Given the evidence of both Conservative Secretaries of State and the evidence produced in the Government’s own studies, can the Minister explain whether there has been a U-turn or a Z-turn, or whether the course is laid out as described in the evidence that they have received?

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

My Lords, this debate has raised two important issues: the justification for short custodial sentences and how we curtail their imposition in practice.

The debate saw an interesting exchange between the noble Lord, Lord Pannick, and my noble friend Lord Beith, and I take the point made by the noble Lord, Lord Pannick, that the law requires courts to avoid unnecessary custodial sentences where alternative sentences are appropriate. However, my noble friend Lord Beith is right that far too many short sentences are still imposed. The noble Baroness, Lady Bennett of Manor Castle, gave us some of the figures. The noble and learned Lord, Lord Hope of Craighead, made the point that the amendment does add something to the existing law. One thing it adds is that it is focused entirely on short sentences, whereas the Sentencing Code provisions are not.

This House has heard endlessly of the damage that short custodial sentences do. There simply is no evidence to justify their regular imposition. If the Minister has any such evidence, perhaps he can tell us what it is. We regularly stress the extent to which the rate of reoffending following short sentences greatly exceeds reoffending rates for community sentences, a point made by the right reverend Prelate the Bishop of Bristol, using the words of the right reverend Prelate the Bishop of Gloucester; it was a point also made by my noble friend Lord German a moment ago.

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[Lord Wolfson of Tredegar (Con)]

My Lords, it is important to remember what is in the amendments and what is not. We are not really debating whether short sentences are or are not a good thing; government policy on that has been stated frequently and I will restate it shortly. I am not proposing to make any sort of turn, whether a U-turn or a Z-turn. Instead, I will keep on the straight and narrow, if I can use that phrase in this context.

It is important to remember what the amendments seek to do. They would prevent the court passing a short custodial sentence unless it is satisfied that no other sentence is appropriate. They would also require the court, if imposing a short custodial sentence, to explain why alternative sentences were not considered appropriate. Let me be clear: I understand absolutely the sentiment behind the amendments and appreciate, as the noble Lord, Lord Dubs, made very clear, that this is not saying that there are no circumstances in which a short custodial sentence could be appropriate—I fully take that on board.

I agree that short custodial sentences can, in many cases, be less effective at tackling reoffending than community sentences. The noble Lord, Lord Ponsonby, was very clear about the importance that magistrates attach to community sentencing and how it is important that they have confidence in the community sentence regime. The words of the right reverend Prelate the Bishop of Gloucester that were read to us also questioned whether short custodial sentences were, to use her phrase, an effective remedy. I think I have dealt with that point. I listened with real care to the testimony I heard at the event she organised and which I was very happy to attend.

The Government cannot support these proposals because they reflect existing law which is sufficiently robust. With respect to the noble Lord, Lord Beith, when it comes to statute, I do not believe that saying something again makes it stronger. If something is already in statute and is not being done, it is critical to investigate why it is not being done, and not simply say the same thing again. I therefore gratefully adopt some of what has already been said to the Committee by the noble Lord, Lord Pannick.

Section 230 of the Sentencing Act 2020—let us just see how it works—places important restrictions on the courts imposing discretionary custodial sentences. It starts with a negative:

“The court must not pass a custodial sentence”—


the starting point is that the court cannot pass a custodial sentence; that is the default—and then continues:

“unless it is of the opinion that … the offence, or … the combination of the offence and one or more offences associated with it, was so serious that neither a fine alone nor a community sentence can be justified for the offence.”

Section 77 of the Act goes further and makes clear that even where the threshold for passing a custodial sentence has been met, the court may still pass a community sentence after taking into account any mitigation. Even then, where a court has formed the view that only a custodial sentence can be justified, even in light of any mitigation, it may still suspend that sentence so that it does not become an immediate custodial sentence, taking into account factors such as realistic prospect of rehabilitation, strong personal mitigation, which would obviously include the effect on dependants, as we discussed in earlier groups, and significant harmful impact on others of immediate custody. We suggest that, taken together, this provides a very robust framework which would ensure that short custodial sentences are passed only where there is really no other alternative for the court.

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

I am very grateful to the Minister for giving way. Does he take my point that none of those provisions focuses on short custodial sentences in particular, as opposed to custodial sentences in the generality?

[Lord Wolfson of Tredegar (Con)]

I accept that they do not refer specifically to short custodial sentences, but when the court is considering a short custodial sentence, the particular factors the court would have to go through before imposing it—and particularly before imposing an immediate short custodial sentence—would be all the starker. It is important that we have a consistent regime. For the reasons I have set out, I do not think it necessary or helpful to have a separate regime for shorter custodial sentences. The position on that, I suggest, is already absolutely clear, as is the requirement for a court to explain its reasons for passing sentence. It is important to recognise that the court has to explain its reasons for passing any sentence, not just a custodial sentence; otherwise, the Court of Appeal will have something to say about it. That is set out in Section 52 of the Sentencing Act.

I hear the point made by the noble and learned Lord, Lord Hope of Craighead, that when it comes to courts explaining the reasons for their sentences, it is very important that they are bespoke and not off the peg—if I can put it that way. That is very important, not least for the offender to know why that sentence has been passed. I will not say any more about the reasons given by the Supreme Court for refusing permission to appeal, but the noble and learned Lord was certainly right that I was all too familiar with receiving those reasons in my cases.

The amendment tabled by the noble Lord, Lord Ponsonby, goes further because it sets out a list of “principles” the court must take into account. I suggest to the noble Lord, who is very familiar with this area, that those principles are by and large set out very clearly already in the guidelines from the Sentencing Council. I suggest that the principles enshrined in legislation would not take us any further.

As the noble Lord knows, there are five statutory purposes when it comes to sentencing, set out in Section 57 of the Act:

“the punishment of offenders … reduction of crime (including its reduction by deterrence) … reform and rehabilitation … the protection of the public, and … reparation by offenders”.

A sentence can serve one or more of those purposes. The Act also states that, even when the threshold for custody has been passed, that does not mean that a custodial sentence is inevitable—particularly for offenders on the cusp of custody.

Imprisonment should not be imposed where there would be a disproportionate impact on dependants. We touched on that today. We looked at that in a lot more detail in an earlier group, so I hope the Committee will forgive me for not dealing with that in any more detail. I have set out the position in some detail already. It is fair to say that, when this amendment was tabled in the other place, Alex Cunningham MP fairly recognised that the principles are already accepted in the sentencing guidelines, which all courts are required to follow; they are not optional. I suggest that the amendment is unnecessary.

Proposed new subsection (3) of the amendment from the noble Lord, Lord Ponsonby, concerns the impact of custody on the children of primary carers or the unborn child of a pregnant woman. I think that is almost identical to an amendment we discussed earlier, tabled by the noble Baroness, Lady Massey, the noble Lord, Lord Dubs, and the noble and learned Lord, Lord Falconer of Thoroton. Again, I have responded to that in some detail already, so I am not proposing to say any more about that.

I will pick up two other points. First, the noble Lord, Lord Bradley, talked about Scotland. The position in Scotland is different. It has a very different sentencing regime from that of England and Wales. The Sentencing Code here, which I have set out, contains the requirements and protections which I have sought to explain. For those reasons, we do not believe that the amendment is necessary; nor, with respect, do we believe we get much assistance in this regard from looking at the Scottish law because there is a very different system for sentencing.

The noble Baroness, Lady Bennett, asked me about the JCHR recommendation. In the time I have had, I have an answer here for her. It is fair to say that it is slightly off-topic. Perhaps she would be happy if I were to write to her on this point, rather than take further time. I will set out the answer in writing; I hope that is acceptable.

For those reasons, we suggest that this is already covered in legislation and in the sentencing guidelines. I invite the noble Lord to withdraw his amendment.

Police, Crime, Sentencing and Courts Bill

Lord Marks of Henley-on-Thames Excerpts

Lords Hansard - part one & Committee stage
Wednesday 17th November 2021 Lords Chamber

[Lord Hogan-Howe (CB)]

My Lords, I broadly support a rise in the age of criminal responsibility. I think the review is a good idea, and of course it should be science-based. The danger of going for 12 years, which is an improvement, is that it could be higher if only we thought about it well. I would be open-minded on whether it needs to be a matter of law or a government commitment to carry out a review.

There is just one area which I hope such a review might consider. The Bulger case is often referred to, for obvious reasons. Hard cases can make very bad law; we are aware of that. But I do think that that type of case imposes a duty on government to consider people’s concerns. There are two concerns that people might have if they lived in the area. One is where the child would live on return to society. That could be covered through care proceedings—you can control where someone lives and who they live with. The second is their occupation. If, at the age of 18, the murderers were released—as they were in the Bulger case—and wanted to go into childcare, or any of the care professions, would people be content with that? There would at least be a question about whether that would be wise. If they only have a care proceeding against them, they would be perfectly entitled not to declare what they were involved in at the age of 10. My point is not that they should be criminalised and therefore always carry that with them, but about how you manage their occupation, subsequent to their reaching an adult stage. It can be managed without criminalisation, but such a review might want to consider how that could be done most efficiently.

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

My Lords, I am constantly amazed by the persistence of this generally civilised country in being willing to treat children of 10 and 11 as criminally responsible.

The noble and learned Baroness, Lady Butler-Sloss, my noble friend Lord German, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, and all other noble and noble and learned Lords who have spoken have made the argument persuasively and on the basis of the scientific, social and international evidence. I say no more about the strength of the evidence.

The noble and learned Baroness, Lady Butler-Sloss, also pointed out the degree to which government inaction on this issue has been based on public prejudice and the Government’s pandering to it. Bluntly, that is moral cowardice, not leadership. Many of us find it unbelievable that, uniquely in western Europe, our children of 10 and 11 can be treated as criminals, when it is entirely clear that they lack the psychological maturity that is appropriate for any legitimate view of criminal responsibility. Why did change come successfully to Scotland and yet the Government seem unprepared to make it here?

I pay tribute to my noble friend Lord Dholakia, who has campaigned tirelessly on this issue for many years. I know he will have been most disappointed to have been unable to attend to speak today. But the House has fully recognised in this debate his commitment and his major contribution on this issue, and we will wish to send him our good wishes for a full and swift recovery.

Amendment 221A in my name and that of my noble friend Lord German has a different purpose. It is to pursue the worthwhile goal of diverting young offenders away from the criminal justice system and towards alternative methods of encouraging them to avoid offending. Youth offender teams have been established since 1998 and have as their function helping young offenders under 18 under supervision of the Youth Justice Board. Central to their function has been to establish services within their local communities to help prevent offending and reoffending. They have a wide remit that permits them to organise a range of activities in an effort to keep young people away from crime. Sometimes this involves involving young people in a form of restorative justice by bringing them into contact with their victims and helping them to organise reparation where it is thought that might help the offender and be accepted by the victims. Among their functions is to help supervise community sentences for young people. Our amendment is designed to help youth offender teams fulfil their function by diverting young people within their area away from the criminal justice system.

--- Later in debate ---

[Baroness Sater (Con)]

My Lords, I rise to speak briefly to Amendment 221B in my name, which is a probing amendment on the need for a review of youth sentencing. I would also like to refer to my interests as set out in the register.

I appreciate that this is a very extensive Bill, and as a former member of the Youth Justice Board and a youth magistrate I note that there has been little reference to the youth courts. It would be a real opportunity lost not to commit to undertake a review of youth sentencing, especially with the ever-evolving criminal justice landscape.

As I mentioned on Second Reading, I have several concerns relating to youth sentencing, and one in particular that I would like to refer to today, which is the unfairness in the treatment of the jurisdiction of young offenders under 18 years of age with regard to the dates of the offence and their first court appearance. Simply put, young people who commit an offence as a child but are then not brought to court before their 18th birthday through no fault of their own are treated as adults in the adult courts. However, defendants who do not get to court before their 18th birthday will go to the youth court where they will benefit from all the specialisation and expertise of the youth court, the youth court practitioners and the youth court’s specific focus on the defendant’s needs and welfare.

It should not be a postcode lottery of where you live due to multiple issues, including court scheduling, that can affect which court you end up in and therefore how you are dealt with. Reforming this now is important, so that defendants are instead dealt with according to their age at the time of the alleged offence, which would mean that youth justice principles would be followed and all defendants would be given the same opportunity and fairness in having access to the youth court services and the support that is so needed to reduce reoffending. We know that the adult court cannot offer the same specialist support as the youth court.

In February, the MP for Aylesbury, Rob Butler, introduced a 10-minute rule Bill on this issue in the other place, where he outlined how his proposals garnered a wide range of support, not only cross-party support but support from key stakeholders and organisations including the YJB, the National Association for Youth Justice and the Magistrates’ Association. There seems to be no common sense or fairness that these young people are treated so differently.

The Covid-19 pandemic has thrown up challenges and, in turn, some positive innovation in youth justice. At the same time, there remain outstanding anomalies in youth sentencing that pre-date the pandemic; I have spoken about some of those issues before in this place, and again today. All taken together, surely now is the right time to commit to a wide-ranging review and for the Government to bring forward a report. In doing so, not only can we address and meet future challenges, and keep under review the innovation we have seen, such as the use of video linking, to ensure that it results in the intended outcomes; importantly, we can also help to address the historical anomalies in the system that existed well before Covid-19.

I look forward to hearing from my noble friend the Minister and hope that he will consider this review, which I hope will help to deliver and improve outcomes in youth justice.

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

My Lords, I apologise to the noble Baroness for speaking before her; I did not realise that she wanted to speak. I also apologise for erroneously referring to her as the noble Lord, Lord Sater.

[Lord German (LD)]

My Lords, I too have added my name to Amendment 221A, which would make youth diversion schemes statutory. I will say a few words about that, as well as about Amendment 219B in the name of the noble and learned Lord, Lord Falconer.

Formal criminal justice system processing—for example, through prosecutions or out-of-court disposals—makes children more, not less, likely to offend. The further a child is processed inside the formal criminal justice system, the greater the likelihood of reoffending, especially for lower-risk children. There is strong evidence both nationally and internationally that youth diversion can reduce crime, cut costs and create better outcomes for children. However, it is currently a non-statutory function for youth offending teams.

We know that practice varies considerably between areas and that some areas have no diversion scheme at all. The 2019 mapping exercise carried out by the Centre for Justice Innovation found that, of the 115 youth offending teams responding, 19 said that they did not have a point of arrest diversion scheme. There is a wealth of great work going on across the country, but there is a dearth of best-practice exchange. I believe that it is quite correct that there should be the principle of local decision-making because that can bring together the wide range of partnerships needed to make any programme work. Keeping it local means that the team can do its work best.

However, the picture is of a set of procedures that are variably practised—some with both breadth and depth, and some without one or other of those attributes. Locally, practitioners are dedicated and have built up some very impressive practices, but in many areas the eligibility criteria are unduly strict, the referral processes slow and the interventions too lengthy. Youth offending teams are not to blame for the variation we see. Because it is non-statutory, we lack robust data and data analysis. Many youth offending teams struggle to keep their services within budget, and staff and funding may not always keep pace with the increased workload, especially when it is non-statutory.

We need a better understanding of what is happening on the ground, where the gaps in provision are, how good schemes can be supported and how good practice can be passed on. The way to achieve this is to make the service statutory and to support the work with funding as necessary. Amendment 219B, in the name of the noble and learned Lord, Lord Falconer of Thoroton, has much the same knowledge request. Basically, you cannot know what you do not know, and if you do not know what the figures and statistics are, you will be unable to take action accordingly. Understanding this better matters both locally and nationally. I believe that making this statutory would ensure that the good practice which abounds in our country is given the opportunity to grow even more, so that we can divert as many young people as possible from the criminal justice procedure. But to do that, we need certainty, and this amendment provides it.

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[Lord Falconer of Thoroton (Lab)]

I agree that it does not need to be dealt with in a criminal trial, but there needs to be some process. Before one increases the age of criminal responsibility from 10 to 12, which we should do, this must be looked at. This is why I rather favour the second amendment, tabled by the noble Baroness, Lady Chakrabarti, which is a review of this, because broadly the case is made in relation to it. It probably should not be something ad hoc, as is the nature of an inquiry, but it should have some recognition that cases such as the Bulger case, which have a significant effect on not only the local but the national community, must be dealt with in a special way.

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

My Lords, I associate myself with everything that the noble and learned Baroness, Lady Butler-Sloss, and the noble Lord, Lord Carlile, have said. I am not sure that the noble and learned Lord, Lord Falconer, has accepted my point, which to a certain extent is the same as that made by the noble and learned Baroness, Lady Butler-Sloss, that we do not wish to reduce or minimise the importance of the Bulger case. My point is that, where publicity is as extensive as it was following that case and where the publicity seems to be directed as in the example that the noble and learned Baroness gave, producing a result where children under the age of 12 would be sent to prison for life and be treated by ordinary criminal process, which is entirely unsuitable for children of that age, the Government must show moral leadership and change the position based on the evidence, rather than taking a political view that it might be easier to duck the question when the evidence is so clear. That is the point that I invite the noble and learned Lord to take. I understand that he supports the increase in the age of criminal responsibility, but I do not hear him saying that the Government must show the leadership to do that in spite of publicity to the contrary.

[Lord Falconer of Thoroton (Lab)]

I accept that the age of criminal responsibility should go up. I strongly endorse what everybody is saying about the Government and, in particular, I endorse what the noble Lord, Lord Marks, is saying about the Government showing leadership in this respect. I also endorse what he says about the Government needing to show leadership in standing out against campaigns that seek to criminalise people under 10 or, in the campaign that he was referring to, between 10 and 12. My point, which I keep coming back to, is that this Committee should not underestimate, or treat as simply got-up, campaigns concerning the justice system, which in some ways expands beyond the criminal justice system, in cases such as the Bulger case.

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I will say one final thing on this to the Minister; I do so rather crushed by the way the debate on the previous group ended, with the door being slammed on even reviewing the age of criminal responsibility. We debated very serious crimes and rightly so, such as the Bulger case and so on, but for many other children criminality is about things such as common assault, slightly more serious assault, criminal damage or crimes of dishonesty. The reality of family life and children’s lives is this: one child will be treated one way because they have the support of their family, and another child, in particular a child who comes from a chaotic family with a lack of support and parenting, or who is looked after by the state, will face a very different outcome and will be much more likely to find themselves incarcerated, under whatever label of institution. That is why it is particularly pernicious that any such institution should ever be run for profit. We the community have already failed that child and we need to compensate for our failure when we look after these most vulnerable children. That is why I support noble Lords’ speeches and the amendment from the noble Lord, Lord German.

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

My Lords, our first aim with Amendment 223A, to which I have added my name, is to ensure that secure academies may be run by local authorities. The present position is that, under the Academies Act, the local authority may not maintain a school that becomes an academy. The result is, as my noble friend Lord German said, to prevent local authorities running secure academies, apparently in the interests of consistency between secure academies and other academies.

Our amendment would enable a local authority to play its part. However, it is entirely non-prescriptive and does not require secure academies to be run by local authorities. It simply permits them to be so. We believe that local authorities have a very important part to play in the running of secure academies, with the very best prospect of success in educating, training and rehabilitating young offenders.

The noble Lord, Lord Carlile of Berriew, mentioned Charlie Taylor. He has always taken and expressed the view that education for young offenders is at the heart of youth justice, and at the heart of reform and rehabilitation. We have considered in Committee the role of local authorities in youth justice at a number of levels and in a number of spheres. Education is, of course, at the forefront, but we should also not underestimate the importance of the local authority role in housing and social services. Both departments have a great deal to do with the criminality of young people. There can, we suggest, be no justification at all for ruling out local authority involvement in these secure academies.

I agree with the noble Lord, Lord Carlile of Berriew, that generally we should be keen to avoid dogma and that what we are doing should be about outcomes. Nevertheless, the second purpose of our amendment is to ensure that secure academies are run on an entirely altruistic basis by not-for-profit organisations. The purpose of this part of the amendment is to ensure that secure academies must be run not for profit but for the good of those who attend them as students.

We have all seen the difficulties that befell the probation service under the Grayling changes, which have since been abandoned. Then the larger part of the probation service was shunted off to community rehabilitation companies, and that led to a decline in voluntary sector involvement, which is particularly important in this area. A failure of collaboration with local authorities and an excessive and single-minded pursuit of profit was to the detriment of the clients that the CRCs were established to help and look after.

I do not believe for a moment that that is in the Government’s mind, but it is a danger that may be inherent in the present proposals, and we suggest that the care of damaged young people who have been sent to secure academies by the courts should never be in the hands of organisations run for profit.

[Baroness Blower (Lab)]

My Lords, it takes a very particular kind of person to be a teacher, but it takes a much more particular kind of person to work in an institution with young people who are clearly already damaged when they arrive. The idea that the Government appear to be taking—a rather dogmatic view about how 16 to 19 provision should be run, in terms of there being only academies and only reflecting the way academies are seen in law in the schools sector—seems to be completely wrong.

It is obvious that the profit motive simply cannot function in this type of provision. Teachers, whether in secure accommodation or other places, are not as well paid as they should be, but the fact is that they are not motivated in general by the level of their salary. Therefore, there is absolutely no reason why we should think that anyone affording that provision should be motivated by profit.

My own experience of young people of this type is that I did, very many years ago, work in a non-custodial, non-residential setting for young people who were at risk of care or custody. I have to say that they were all at risk of custody. But the fact that I worked in a local authority provision, where we were able to work very closely with the youth offending team, our local social services and our probation service, and all of our play therapists and other types of therapists, meant that, in general, it was a very successful provision.

I have, like the noble Lord, Lord Carlile of Berriew, had the opportunity through my union experience to visit teachers working in a whole range of institutions—some of which, I am sorry to say, no longer function. This type of provision, as my noble friend Lady Chakrabarti said, should be at the irreducible core of what the state does and affords for some of our most vulnerable young people. For that reason, I am very happy to support the amendments.

[Lord Wolfson of Tredegar (Con)]

My Lords, I first turn to Amendment 223A from the noble Lord, Lord German, which would allow local authorities to “establish and maintain” secure academies and prevent any for-profit corporation doing this.

Dealing with those points in turn, first, we are not aware of any specific legislative barrier to the provision of secure 16 to 19 academies by local authorities. However, it is government policy that academy trusts are not local authority influenced bodies. As a result, no academy in England is operated by a local authority and our position here is to mirror academies’ policies and procedures in secure schools to the greatest extent possible. That said—

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

I am grateful to the Minister for giving way. Has he had regard to Section 6 of the Academies Act, which provides that a local authority must cease to maintain a secure school if it becomes an academy? That seems to have the effect of ruling out local authority involvement, even if it operates in a slightly circuitous way.

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[Lord Wolfson of Tredegar (Con)]

My understanding is that the £259 million was announced in the spending review to continue the programme to maintain and expand capacity in both secure and open residential children’s homes. I am not able to say any more than that; it might be a question for my Treasury colleagues to clarify. However, I am also able to clarify it to the noble and learned Lord. Perhaps I can drop him a line on that specific point.

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

Before the Minister sits down and before I admit to nodding, the point he made is why I referred to the operation of Section 6 as being possibly circuitous. It seems that in certain circumstances it may well apply, and it may well apply more generally.

[Lord Wolfson of Tredegar (Con)]

The reason why I did not say it in terms that I was certain that the noble Lord had got it wrong was precisely that point. It seems that we might be approaching this point from different ends, but I will look at it myself and, if necessary, I will drop noble Lords a note. It may not be necessary given what has now been said.

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[Baroness Armstrong of Hill Top (Lab)]

My Lords, I am enormously grateful to the noble Lord, Lord Paddick. I am chairing a Select Committee. I will come back for the rest of the debate, but I have to come back from Millbank, and I am not as fast as I used to be.

I want to be brief, but I return to an issue that I have consistently raised with the Minister over several Bills: the position of girls and women who are being sexually exploited, abused and subjected to violence. I want to help the Government to get out of the hole they are digging themselves into, where they are losing what they learned during the passage of the Domestic Abuse Bill about coercive control and about what happens to women who have been traumatised by this sort of behaviour. I want them to think about that in relation to my amendment on these very difficult serious violence reduction orders. I am not going to intervene in the rest, because I will support them if there is a vote at Third Reading, but this is a very specific amendment.

I realise the pressure on the Minister. I hope she has had a chance to look at the very short video that I sent her of a young woman from Newcastle—so the Minister should recognise the accent—telling of her inability to tell anyone of the activity of the perpetrator who was grooming and abusing her until she had been sentenced for something ridiculously small that was technically nothing to do with her abuse. Once she got to see a probation officer, she really felt that she had to say something about why she had been involved in criminal activity, and she was then referred to the charity Changing Lives; I ought to say that I still mentor the person who deals with women in that charity. The young woman from Newcastle was then able to talk about the abuse that she had suffered, the effects of what the perpetrator had done to her, and why this had led her to behave in the way she did.

It does not take much imagination to recognise that women who have been trafficked, groomed and subjected to physical, psychological and sexual abuse are not going to say what they know about the criminal activity of their abusers without themselves being supported and protected by those who understand trauma and what has happened to them. This amendment seeks to remove the “ought to have known” provision that will mean that women and girls who are judged that they “ought to have known” that someone in their company was in possession of a bladed article or offensive weapon could face two years’ imprisonment for a breach of the order’s terms. This simply criminalises women who are already being subjected to appalling criminal abuse. I do not believe that that is what the Government want to do. We know how we can change women’s life chances in these circumstances. We can do it. I work with people who do it, but this is not the way. This will not help them into a more stable and secure life. This will drive them into more criminal behaviour and into entrenching their problems.

I gather that this is seen as an extension of the joint-enterprise laws. The problem the Government have is that these laws have brought women into the criminal justice system when they had no involvement in the alleged offence. Research has found that in 90% of joint-enterprise cases against women, they had engaged in no violence at all, and in half of the cases they were not even present at the scene. We also know from research that more women and girls from BAME backgrounds are likely to be picked up under this sort of provision, and the Government really need to think about that, too.

This provision was not included in the consultation on these orders. I really do think that the Government did not have the opportunity to think the provision through in relation to the women and girls I am talking about. They have the opportunity to quietly drop it now before Report, and I hope and trust that they will.

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

My Lords, my noble friend Lord Paddick will speak from the Front Bench for my party on this group, but he has quite a lot to say and, in view of the time, he has asked me to speak now, so with your Lordships’ permission or agreement, I shall address a number of points where serious violence reduction orders—SVROs for short—offend against cardinal principles of justice that our criminal law generally holds to be of the greatest importance.

I say at the outset that we should be in no doubt that an SVRO is to be a criminal sanction. That is, first, because of the requirements and prohibitions it imposes on an offender who is made subject or is to be made subject to such an order. It is, secondly, by reason of the draconian powers exercisable by the police in respect of an offender who is to be made subject to such an order, which are the equivalent of a criminal sanction on that subject. It is, thirdly, because the exposure of an offender subject to an SVRO to further criminal sanctions for the breach of any conditions attached to it amounts to a criminal sanction in its imposition.

Against that background, my first objection of principle is that it is wrong that a criminal sanction should be imposed independently of any criminal offence. Amendment 225, in the names of my noble friend Lord Paddick and the noble Baroness, Lady Meacher, is addressed to the novel and unwarranted approach to carrying a bladed article in the proposed new subsections 342A(3)(b) and (4)(b). As their explanatory statement makes clear, carrying a knife is not of itself a criminal offence, yet these provisions would render an offender liable to be made subject to an SVRO if either the offender or a joint offender with that offender had a knife with them, for whatever reason, whether the carrying of that knife was an offence or not. These orders as proposed would impose criminal sanctions for conduct which did not amount to an offence known to the law. That is contrary to principle in a profound and unacceptable way.

My second objection is that our criminal law generally insists on proof of guilt to the criminal standard, beyond reasonable doubt, before any criminal sanction can be imposed. Certainly, the civil standard of proof has its place in the criminal law, but that is generally when the law imposes a burden of proof upon the defendant to establish the facts of a defence which, if proved, would justify conduct that would otherwise be criminal. However, what is proposed here is that a criminal sanction can be imposed on the basis of proof, to the civil standard only, of the primary facts giving rise to that sanction. Again, that is contrary to principle and is calculated to water down, even to undermine, one of the most fundamental principles of our criminal law—one that I venture to suggest is probably the best known of any of those principles among the general public.

My third point concerns the unwarranted extension of the law relating to joint enterprise embodied in the proposed new subsection 342A(4). That is why I have added my name to Amendments 226A and 226B just spoken to by the noble Baroness, Lady Armstrong of Hill Top. I do not understand how it can be contended that an offender should be subject to criminal sanction if that offender did not know that a bladed article or offensive weapon would be used by a joint offender in the commission of an offence on the basis that he merely “ought to have known” that fact. That is proposed new subsection 342A(4)(a).

Proposed new subsection 342A(4)(b) is even worse: an offender is to be subject to the criminal sanction of an SVRO because a joint offender had a bladed article or offensive weapon with him at the time of the offence, even if the offender did not know that, simply on the basis that he “ought to have known”. And all this to be proved to the civil standard only, notwithstanding that possession of a knife is, of itself, not a criminal offence.

That is not all. I shall be supporting the noble Lord, Lord Ponsonby, in opposing Clause 140 standing part of the Bill because, in addition to all that I have said so far, SVROs are to be imposed without any right to trial by jury; they are to be imposed by a judge alone, following conviction. As for the evidence to be adduced to support their imposition, in the words of proposed new subsection 342A(8), it is not to matter

“whether the evidence would have been admissible in the proceedings in which the offender was convicted.”

That anomaly is the subject of Amendment 231, in the name of my noble friend Lord Paddick. I simply ask, in connection with these SVROs, where are we heading. It is in the wrong direction for our criminal justice system.

Debate on Amendment 224 adjourned.

Police, Crime, Sentencing and Courts Bill

Lord Marks of Henley-on-Thames Excerpts

Lords Hansard - part two & Committee stage
Wednesday 17th November 2021 Lords Chamber

[Baroness Williams of Trafford (Con)]

I will most certainly do that. So this is offences where the knife is not actually deployed and the person with the individual with a knife in their pocket would not have known that the knife was in their pocket. Without getting myself into further trouble, I would say that the courts would take those facts into consideration—but I will elect to write to noble Lords with as many permutations and combinations as I can possibly think of before Report.

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

I have no wish to get the noble Baroness into more difficulties, but the problem arises because she said that the court would have to consider the relevance of the carriage of the knife to the offence, and that is quite simply wrong. I would be very grateful if the noble Baroness, before any examples are produced, would concede that, and then discuss whether these amendments are not very important in light of the answer. There is the weakness—the lack of the nexus between the carriage of the knife and any offence that is proved.

[Baroness Williams of Trafford (Con)]

I think I need to reflect further on what noble Lords have said. I will try to answer the noble Lord’s question in a letter before we start talking about examples. We are, after all, in Committee, and I am learning, like other noble Lords, as we go along.

Amendments 226, 226A and 226B would remove the provisions that enable a court to issue the SVRO if two or more people commit an offence but not all of them used or were in possession of the weapon—that is slightly going back on what we were discussing. When a knife offence or offensive weapon-related offence is committed, it is not always the case that all the offenders had the weapon in their hands—as the noble Lord, Lord Paddick, pointed out—during the commission of the offence. But if the court is satisfied that a person knew or ought to have known that another person committing the offence had a knife or an offensive weapon during the commission of the offence, and this person committed an offence arising out of the same facts, we think it would be appropriate for an SVRO to be available. Again, I will put the various permutations and combinations to noble Lords in a theoretical way. This would allow SVROs to be made in relation to all the individuals who were involved and were convicted of such an offence, should the court consider an SVRO to be necessary in respect of those individuals.

This provision intends to cover situations such as a robbery or a fight where a weapon was used by one individual, but where other individuals convicted of offences related to the same facts knew, or ought to have known, that a weapon was being used or carried by another person involved in the offence, even if they themselves were not carrying the weapon. This is very similar to the point made by the noble Lord, Lord Paddick, except that that individual was brandishing the weapon.

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

My Lords, I propose to deal with just one amendment, Amendment 233, which is concerned with the defence of reasonable excuse. I concentrate on that because my noble friend Lord Paddick has covered the ground in this group. But it seems to me—and I agree with what my noble friend and the noble Lord, Lord Coaker, have said—that this group offends against principles of our criminal law and rides roughshod over them, because the overall purpose of the Bill seems to have taken precedence over any degree of thought being given to the detail of what is actually being done.

Amendment 233 in the names of my noble friend Lord Paddick, the noble Lord, Lord Moylan, and the noble Baroness, Lady Meacher, would permit a reasonable excuse defence to an offence committed where an offender subject to an SVRO tells a constable that they are not subject to such an order. The Liberty briefing, for which we are all very grateful, points out that an offender may have committed the proposed offence of telling the police constable falsely that they are not subject to an order even where they honestly and even reasonably believe that the order—the SVRO—is no longer in force, or where they do not understand the question because English is not their first language, or for any other reason.

Looking at the proposed offences under new Section 342G(1), the reasonable excuse defence is presently available only in respect of offences under (a) or (b) of that subsection. The first is if the offender

“fails without reasonable excuse to do anything the offender is required to do by the order.”

The second is where the offender

“does anything the offender is prohibited from doing by the order.”

But there is no reasonable excuse defence available for any of the other three offences. Under (c), I think “notifies the police” means providing to the police,

“in purported compliance with the order, any information which the offender knows to be false”,

while (d) covers denying the order which is the subject of Amendment 233m which I have addressed, and (e) is where the offender

“intentionally obstructs a constable in the exercise of any power conferred by”

the legislation. None of the last three has a reasonable excuse defence available.

In thinking about this proposed section, one is reminded that reasonable excuses may arise in odd and unpredictable ways. Legislation ought to avoid criminalising any behaviour for which the citizen has a reasonable excuse, because criminalising behaviour in these circumstances brings the law into disrepute. If there is no reasonable excuse, the offence is committed and conviction will follow—but if there is a reasonable excuse, there ought to be no conviction.

We have only to remind ourselves that there may be a reasonable excuse for disobeying police officers’ requirements. Tragically, Sarah Everard was persuaded to enter Wayne Couzens’s car, with awful results, because he purported to have the right to require her to do so. We should be open to the view that automatic obedience to the requirements of a police officer is not always sensible, and that offenders, even though subject to SVROs, might well have reasonable excuses for non-compliance with police officers’ requirements.

I suggest that the Minister and her colleagues ought to think about whether reasonable excuse should not be a defence to all these offences. Initially, they might consider that there would not be many cases where a citizen would have a reasonable excuse for non-compliance. But they might also wish to reflect that that does not mean that, in those cases where citizens do have a reasonable excuse, they should be found guilty of a criminal offence. This is an important lacuna in the proposals made here—that reasonable excuse will be no answer to conviction.

[Baroness Williams of Trafford (Con)]

My Lords, as the noble Lord, Lord Paddick, has explained, this group of amendments deals with further aspects of the new serious violence reduction order. Amendments 231A and 231B would remove the requirement for an offender subject to an SVRO to notify the police of their home address; any changes to their home address; the address of any other premises at which the offender regularly resides or stays; or the address of any place they decide to live in for a period of one month or more.

We included notification requirements in the legislation in order to help officers to identify those subject to an order in their area. It is a common feature of other offender management regimes, including in relation to sex and terrorism offenders, so we are not breaking any new ground here. We stated in the draft statutory guidance that the police should use the notification stage to engage with the offender and clarify the effects of an SVRO: that is, to explain to the offender in ordinary language the requirements and effects of an SVRO and what offences may be committed if they breach the order. This, along with an up-to-date description, could be used to assist with future identification when conducting a stop and search. It is therefore important that we keep the notification requirement as currently drafted to ensure that officers are able properly to identify those subject to an order.

Amendment 233 would create a defence so that an offender can tell an officer that they are not subject to an SVRO if they have a reasonable excuse to do so. I do not see any circumstances where it would be reasonable for an offender not to tell an officer that they are subject to an SVRO if they are asked. It may be that the noble Lord wants to cover circumstances where an offender subject to an SVRO has a reasonable excuse for carrying a knife. In such circumstances, it would be for the police, and ultimately the courts, to decide whether the reasonable excuse defence was made out in the event that the offender was arrested and then charged with an offence in relation to the possession of a bladed article or offensive weapon.

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Moved by

[Lord Marks of Henley-on-Thames]

240A: After Clause 163, insert the following new Clause—
“Women’s Justice Board
(1) There is to be a body corporate known as the Women’s Justice Board for England and Wales.(2) The Board is not to be regarded as the servant or agent of the Crown or as enjoying any status, immunity or privilege of the Crown; and the Board’s property is not to be regarded as property of, or held on behalf of, the Crown.(3) The Board must consist of 10, 11 or 12 members appointed by the Secretary of State.(4) The members of the Board must include persons who appear to the Secretary of State to have extensive recent experience with women in the criminal justice system.(5) The Board has the following functions, namely—(a) to meet the particular needs of women in the criminal justice system;(b) to monitor the provision of services for women in the criminal justice system;(c) to advise the Secretary of State on—(i) how the aim in subsection (5)(a) might most effectively be pursued;(ii) the provision of services for women in the criminal justice system;(iii) the content of any national standards the Secretary of State may see fit to set with respect to the provision of such services, or the accommodation in which women are kept in custody; and(iv) the steps that might be taken to prevent offending by women;(d) to monitor the extent to which the aim in subsection (5)(a) is being achieved and any standards met; (e) for the purposes of paragraphs (a) to (d) above, to obtain information from relevant authorities;(f) to publish information so obtained;(g) to identify, make known and promote good practice in—(i) meeting the particular needs of women in the criminal justice system;(ii) the provision of services for women in the criminal justice system;(iii) the prevention of offending by women;(iv) working with women who are, or are at risk of becoming, offenders;(h) to commission research in connection with such practice;(i) with the approval of the Secretary of State, to make grants to local authorities and other persons for the purposes of meeting the aim in subsection (5)(a) and the provision of services to women in the criminal justice system, subject to such conditions as the Board considers appropriate, including conditions as to repayment;(j) to provide assistance to local authorities and other persons in connection with information technology systems and equipment used or to be used for the purposes of the aim in subsection (5)(a) and the provision of services to women in the criminal justice system;(k) to enter into agreements for the provision of accommodation for women in the criminal justice system, but no agreement may be made under this paragraph in relation to accommodation for women in the criminal justice system unless it appears to the Board that it is expedient to enter into such an agreement for the purposes of subsection (5)(a);(l) to facilitate agreements between the Secretary of State and any persons providing accommodation for women in the criminal justice system;(m) at the request of the Secretary of State, to assist in carrying out the Secretary of State’s functions in relation to the release of offenders detained in accommodation for women in the criminal justice system; and(n) annually—(i) to assess future demand for accommodation for women in the criminal justice system;(ii) to prepare a plan setting out how they intend to exercise, in the following three years, the functions described in paragraphs (k) to (m) above, and any function for the time being exercisable by the Board concurrently with the Secretary of State by virtue of subsection (6)(b) below which relates to securing the provision of such accommodation, and(iii) to submit the plan to the Secretary of State for approval.(6) The Secretary of State may by regulations made by statutory instrument—(a) amend subsection (5) above so as to add to, subtract from or alter any of the functions of the Board for the time being specified in that subsection; or(b) provide that any function of the Secretary of State which is exercisable in relation to women in the criminal justice system is exercisable concurrently with the Board.(7) The power of the Secretary of State under subsection (6)(b) includes power—(a) to provide that, in relation to any function that is exercisable by the Secretary of State in respect of particular cases, the function is exercisable by the Board only— (i) where it proposes to exercise the function in a particular manner, or(ii) in respect of a class of case specified in the order, and(b) to make any supplementary, incidental or consequential provision (including provision for any enactment to apply subject to modifications).(8) No regulations under subsection (6) may be made unless a draft has been laid before and approved by a resolution of each House of Parliament.(9) In carrying out their functions, the Board must comply with any directions given by the Secretary of State and act in accordance with any guidance given by the Secretary of State.(10) A relevant authority—(a) must furnish the Board with any information required for the purposes of subsection (5)(b), (c) or (d) above; and(b) whenever so required by the Board, must submit to the Board a report on such matters connected with the discharge of their duties as may be specified in the requirement.A requirement under paragraph (b) above may specify the form in which a report is to be given.(11) The Board may arrange, or require the relevant authority to arrange, for a report under subsection (10)(b) above to be published in such a manner as appears to the Board to be appropriate.(12) In this section “relevant authority” means a local authority, a chief officer of police, a local policing body, a local probation board, a provider of probation services, a clinical commissioning group and a local health board.(13) Schedule (Women’s Justice Board: further provisions) has effect.”Member’s explanatory statement
This new Clause makes provision for the establishment of a “Women’s Justice Board”, along the lines of the Youth Justice Board. The drafting closely follows the form of the provisions establishing the YJB in the Crime and Disorder Act 1998.

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

My Lords, Amendments 240A and 259C in my name and that of my noble friend Lord German, who has had to leave, call for the establishment of a women’s justice board. It has been pointed out in Committee that these are very long amendments. I understood from the noble Viscount, Lord Hailsham, that the second of them may be the longest in what is still, on day 9, an extremely full Marshalled List, but the drafting is modelled on the drafting of the legislation establishing the Youth Justice Board for England and Wales in the Crime and Disorder Act 1998. I do not propose to spend any time considering its detail.

However, it is widely acknowledged that the Youth Justice Board for England and Wales has been a great success. It has benefited from the effect of concentrating effort, research, learning and resources on youth justice. It has focused on recognising and addressing the difficulties of young offenders in the criminal justice system and on helping children to achieve their potential while aiming to minimise the harms that follow from young people’s contact with the system.

Perhaps most significantly, it has had the outcome of the number of children entering the youth justice system reducing year on year. Between March 2006 and 2020, the population of under-18s in custody in England and Wales fell from 2,832 to an average of 780 in the year 2019-20. Of course, the remaining cohort represent the most intractable cases and present the most difficulties. Nevertheless, that success in reducing youth offending has been remarkable. It is the aim of these amendments to establish a women’s justice board that can produce similar successes.

Much has been attributable to the success of the Youth Justice Board in attracting extremely effective and committed leadership. On these Benches, we are very proud of the work that has been undertaken by my noble friend Lord McNally, but the leadership of successive chairs, such as Frances Done and Charlie Taylor, as well as the current chair, Keith Fraser, has been a major factor in the board’s success. Establishing a women’s justice board on similar lines would also be likely to attract effective leaders, who would bring immeasurable benefit to women in the criminal justice system.

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I will add two further points. First, I am concerned about, and conscious of, the time it would take for a new body to be set up and establish relationships with the relevant organisations that would make a real difference. As we have the advisory board up and running, I would rather work with—and improve if need be—the organisations that we currently have. Secondly, there is a cost implication. As a point of comparison, if we are going to look across to the Youth Justice Board, its staff costs alone in the 2019-20 accounts were £5.5 million. I really do not want to divert any money from our primary task of fully delivering the female offender strategy. For those reasons, therefore, which I think are a blend of principle and practicality, I invite the noble Lord to withdraw his amendment.

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

My Lords, I am very grateful for the support of noble Lords from around the House for the proposal to establish a women’s justice board. I pick on two points made by the noble and learned Baroness, Lady Butler-Sloss, and the noble Lord, Lord Pannick, arguing that women have very special needs. Those are sufficient justification for considering the establishment of a women’s justice board.

I then move to what the noble and learned Lord, Lord Falconer, said about the establishment of the Youth Justice Board. He talked about how it gave “drive” to the consideration of the needs of young offenders and the assistance and help given to them; I should have mentioned the work of the noble Lord, Lord Warner, as the board’s first chair because it was extremely important. It provides some answer to the point made by the Minister, who picked up on the issue of time. The Youth Justice Board was established in 1998. Under the chairmanship of the noble Lord, Lord Warner, it started work in that year. It is 23 years since then, and every one of those years has been a success. That is extremely important. In the view of those who spoke in favour of this amendment, we could get equivalent drive and movement in catering for the special needs of women through the establishment of a women’s justice board. It is entirely artificial to draw a distinction between youth justice, where there is certainly a separate structure, and women’s justice, where there is no separate structure and women offenders are treated as part of the adult population.

The noble and learned Baroness, Lady Butler-Sloss, and my noble friend Lady Brinton drew attention to the family needs of women and the devastation produced for women and their children by contact with the criminal justice system. When it is acknowledged that women in the system have very particular needs, as the Minister did fairly, it is enough for me to say that the distinction he drew is artificial. I also accept my noble friend Lady Brinton’s point that the women’s justice board would deal with family court issues as well as criminal court issues. Although I have talked about the criminal justice system, the wider justice system and its help for women are also seriously in need of the extra drive of which the noble and learned Lord, Lord Falconer, spoke.

Saying that, I detected some flexibility in the Minister’s speech. I hope that, in discussions with him between now and Report, we may find some room for movement. On that basis, even if he does not admit that flexibility now, I beg leave to withdraw the amendment.

Amendment 240A withdrawn.

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[Earl Attlee (Con)]

My Lords, perhaps I may respond to what noble Lords have said. The noble Baroness, Lady Jones of Moulsecoomb, mentioned young offender institutions. When I was getting educated by Frances Crook, I asked her, “How often do inmates at a YOI get taken out on camp?” She said to me, “John, you should ask how often they are taken out of their cells.”

In response to the noble and learned Lord, Lord Hope of Craighead, I am not proposing conscription or a national service-type solution. However, the points that he makes are absolutely what is informing my thinking. He made a valid point about the need for instructors and I am not proposing the use of the military to provide that function. Prison officers ought to be taking up that role and I envisage, among other things, youngsters who trained as Outward Bound instructors who cannot necessarily get particularly well-paid employment then training as prison officers and being double-hatted. There are a lot of things that we could do if we wanted to do them.

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

My Lords, I will not address the detail of the noble Earl’s amendment, but I agree with the noble Baroness, Lady Jones, and the noble and learned Lord, Lord Hope of Craighead, that there is a great deal of merit in the call for more and better training within the penal system. We have long taken the view that training within prisons in particular is inadequate, poorly arranged and often unavailable. We therefore commend the noble Earl for the thrust of his amendment and certainly commend him for the care and dedication that he has given to setting it out in detail and in the briefing that he circulated.

We are not convinced of the need for a new sentence of detention for training at Her Majesty’s pleasure but we agree with the heart of the amendment, which is the focus on skills to train for future employment, for which there is a great need. The classroom-style of training does not always work. What is needed is training for skills on the job and for soft skills because, as the noble Baroness, Lady Jones, pointed out, not everyone is suitable for the basic training that perhaps the noble Earl has in mind. There should be a combination of practical, soft and technological skills. We are all for better training. However, we seek the Government’s work to be directed towards the provision of that sort of training—better training and more of it—within the criminal justice system and overcoming the barriers to prisoners being work-ready by the time they finish their terms of imprisonment because, at the moment, there is a serious deficiency in that area.

[Lord Falconer of Thoroton (Lab)]

My Lords, I join noble Lords in commending the noble Earl for the effort and work that he has put into this and the fact that he has thought it through. I also commend what the noble and learned Lord, Lord Hope of Craighead, said. It was obviously not a detention for training centre that he was passed to, but his experience was successful in diverting him from the criminal justice system. That is an indication that it worked, even if he ended up in the criminal justice system as the Lord President of the Court of Session and a member of the Supreme Court.

I very much agree with what the noble and learned Lord, Lord Hope, the noble Lord, Lord Marks, and the noble Baroness, Lady Jones, said. There are parts of this that we would all agree with. However, we on this side would not support this as a separate sentence. If one looks at the detail, it requires the setting up of a number of rural detention centres. The right thing is for the Government to look at the elements aimed at trying to rehabilitate those in the criminal justice system and use them in the existing system, rather than setting up a whole new network. We admire the noble Earl’s work but think that this is not the appropriate way forward.

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I can see where the Minister is coming from, but one has to ask whether there is a realistic prospect of any judge applying his or her mind to the interests of justice ever giving sanction for this to take place—in which case, it may be that this clause is simply not worth the paper it is written on.

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

My Lords, this is a very difficult issue and one on which I would normally expect to find myself on the side of assisting persons with a disability, for precisely the reasons given just now by the noble and learned Lord, Lord Hope of Craighead, but also by the noble and learned Lord, Lord Judge, at the beginning of his speech. That would be assisting persons with a disability such as deafness to take a full part in jury trials, even as members of a jury, so I completely share the reluctance of the noble and learned Lord, Lord Judge, in finding myself opposing the Government’s proposals and wishing to restrict the assistance proposed for people with the disability of deafness.

One has every respect for the fact that similar proposals were considered in Scotland in 2018, as explained by the noble and learned Lord, Lord Hope, but I have come to the conclusion that it is simply incompatible with a fair trial by jury for one or more of the jurors to be assisted by one or more sign language interpreter—it is an important point that it may take more than one to give coverage throughout a trial. It seems to me that the presence of an interpreter in the jury room would raise a number of questions that are simply impossible to answer in a way that is compatible with this new proposal. The questions may reflect some of the concerns that noble Lords and noble and learned Lords have expressed in this debate.

The first is: would the interpreter be bringing a personal view of the evidence and the discussions to bear on the juror concerned, for whom he or she was interpreting? The associated question is: how would we know that the interpreter was bringing that personal view to bear on the juror concerned? The next question is, in one sense, the converse of that: would the contribution of the juror concerned to the deliberations of the jury as a whole genuinely reflect the contribution which that juror would have made had the interpreter not been present? That, of course, affects not just the juror concerned but all the other members of the jury as well.

Then there is a third and very obvious point, made as a result of the speed with which jury deliberations necessarily take place and which reflects the points made by my noble friend Lord Thomas of Gresford: how accurate is the interpretation that is achieved in any particular case? Again, the second point that arises from that is: how is that accuracy to be monitored? How do we know how accurate the interpretation is? Of course, it is not just the interpretation of the contributions to the deliberations that that particular juror has to make, but also the interpretation to that juror of what all the other jurors who might agree or disagree with that juror’s point of view may be saying.

Also, how far would the contributions of other jurors be affected by any actual or perceived views of the interpreter? We come back to the questions raised by both the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Judge, of the dynamics of the jury room. We all know from experience that people gathered together carry different degrees of forcefulness, persuasiveness and believability. It is almost impossible, it seems to me, to rule out forcefulness or persuasiveness on the part of the interpreter, as distinct from the part of the juror concerned.

So I agree with the noble Earl, Lord Attlee, on the principle and with other noble Lords who have spoken on the dynamics of the jury room. I also agree with the noble and learned Lord, Lord Judge, on the point he made about the centrality of privacy in the jury room. We have always believed and held to be cardinal that jury deliberations are private and nobody else should be involved. The noble and learned Lord took the Kafkaesque point that maybe the Government would ultimately want a representative in the jury room. Even if we do not go that far, the principle is there to protect the privacy of jurors. The presence of third parties—or 13th and 14th parties—weakens that. I also take the point that many potential jurors who are deaf may not wish to serve on a jury and may see the effect of their disability as something that cannot be overcome by recourse to an interpreter.

These difficult questions are recognised in Clause 165 by the proposed new Sections 9C(4) and 20I of the Juries Act 1974, which create a new offence of an interpreter intentionally interfering with or influencing the deliberation of the jury. For my part, I cannot see that those proposed provisions could ever provide a satisfactory answer to the problems. The difficulties come not from the risk of intentional interference or influence but from the actual effect of unintentional and unintended interference or influence by a forceful interpreter, or a jury that did not follow what the interpretation was affecting.

Our system depends on the interaction between the views of 12 independent jurors, who have all listened to and considered the same evidence in the same way during the course of the trial. Each and every one of those jurors will have weighed up the truthfulness and accuracy of the evidence given by witnesses giving oral testimony and will have been influenced, partly at least, by the way in which that testimony was delivered. They will have formed their own views of that before they ever get to the jury room.

In this context, Section 10 of the Juries Act requires the discharge of potential jurors with insufficient understanding of English to enable them to act effectively as jurors. They need that understanding in order to interact with and understand the meaning, force, style and believability of the evidence, as they must. As the noble Lord, Lord Pannick, pointed out, no foreign language interpreters are permitted, for obvious and good reasons, and I am entirely unpersuaded that the interests of justice would be best served by permitting interpreters of any language, including sign language, to accompany jurors into the jury room.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, there have been some very strong speeches from some very eminent lawyers, talking about the underlying principles of the jury room. Set against that, as the noble Lord, Lord Pannick, said, there are very strong equality arguments in favour of the proposal by the Government.

I served on a jury many years ago, but I want to talk about my experience as a magistrate. Magistrates are both judge and jury. About two years ago, the Greater London Family Panel of magistrates recruited a deaf magistrate. As far as I know, she has been sitting successfully for the last two years. I am in a position to know because I am currently chairman of the Greater London Family Panel and would be told if there were any complaints or observations related to the way she was performing. I have not heard any and, as far as I know, it is absolutely fine. She sits with a regular interpreter, who is familiar to her, and with the other magistrates when they are determining these very sensitive issues.

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[Lord Ponsonby of Shulbrede (Lab)]

My Lords, there are a number of amendments in this group to which I would like to speak. The noble Lord, Lord Pannick, made the overarching point that he is suspicious of broad powers being taken in legislation. It seems to me that those amendments which are not the Government’s address the broad powers which the Government are seeking to take in this group.

Amendments 245A and 245B, in the name of my noble and learned friend Lord Falconer and supported by the noble Lord, Lord Pannick, would remove children from the application of Clause 167, providing that remote observation and recording of court proceedings may not occur in cases where a party to the proceedings is a child under the age of 18.

Under Amendment 259A, also in the name of my noble and learned friend, a court may not give directions for live links in criminal proceedings where a party to them is a child under the age of 18. The amendment in my name, Amendment 259BA, would require that all defendants who might appear on a video or audio link from a location outside the court should be subject to a health needs screening. Screening information must be made available to the judge responsible for listing before the listing is finalised.

We have all had a variety of experiences of dealing with remote links. I have done it many times over the last 18 months and in a number of jurisdictions. I was pleased that the Minister referred to Sir Andrew McFarlane’s report about trying to increase the transparency of family courts. I have read that report and it is interesting. There is the idea there of permitting journalists to observe family courts remotely. However, there is another side to this coin. Yes, we pat ourselves on the back for getting through a difficult situation—I have done it myself—and we have all managed to make the various parts of our lives work, including this House, but I do not think that anyone would say that the manner of getting through things within the court system or within this House or this Committee is as good as doing it in person.

The amendments I have spoken to look at arguably the most vulnerable people who potentially proceed through the criminal system and at whether there should be a form of review around whether that is indeed suitable. The amendments I have referred to talk about people under the age of 18, but there is a wider point, because there has been criticism of the way in which we in the family court system have proceeded remotely. I have literally taken away a child from a mother remotely, by telephone. It was the best thing to do in the circumstances, but nobody would argue that that was the best way to proceed when the court system and other forms of support should be in place and available.

There are overarching and broad powers being sought through this group of amendments. The amendments in my name and those in the names of the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Falconer, are basically looking for exceptions to this, where the situation is so sensitive that these overarching powers should not be taken and there should be further research and assessment of their appropriateness. The amendments in my name deal with young people under the age of 18. I have had a number of hearings with such young people. Sometimes they go okay; sometimes they simply switch off and do not have a clue what is proceeding within the court system.

I hope that, when the noble Lord comes to sum up, he will be able to say something about ongoing reviews of particular appraisals of young people being able to participate in these types of hearings, and that there will not be a blanket approach, as is proposed in his group of amendments.

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

My Lords, I am sorry to speak after the noble Lord, Lord Ponsonby. I wanted to hear what he had to say about his amendments and those in the name of the noble and learned Lord, Lord Falconer.

I speak first to the amendment to which I have put my name, Amendment 259B—on which I entirely agree with what the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Judge, said—about excluding jurors from the operation of the provision permitting participation in criminal proceedings by remote live links.

The proposal in the Bill is that the problem of jurors taking part in criminal proceedings by live link should be dealt with by a requirement that all members of a jury taking part through a live link should be present at the same place. So the suggestion is that, by being present at the same place, the jurors would be able to decide a case whether or not they were physically present at the trial. I do not believe that suggestion is accurate or that it responds adequately to the difficulties posed by the proposal that jurors should be able to attend remotely.

In the last group we considered how important it is for jurors to be able to see and hear witnesses giving their oral testimony live, with a view to assessing the truthfulness of those witnesses and the accuracy of the evidence they give. That involves a very personal judgment about credibility and reliability. Reliance upon that judgment—the independent judgment of 12 citizens, as distinct from the individual judgment of a professional judge—is what marks out the jury system. I believe it is what has given the public confidence in the system that we all have. I do not believe that that judgment is capable of being reliably made by live link.

Post Covid, we can all see the attractions of remote hearings. As a barrister, I have appeared in many such hearings over this period, as I dare say others have—certainly the noble Lord, Lord Pannick, has. For hearings before judges alone, or before arbitral tribunals, they generally work well. Indeed, for many civil hearings, I suspect we will not go back to the system of all-oral hearings for a significant percentage of our work. That will be a matter for individual judges, arbitrators and lawyers, depending upon the particular circumstances of the cases before them.

However—this was the case that the noble and learned Lord, Lord Judge, made—even during the pandemic and despite the pressures of increasing trial backlogs, we have not gone down the road of holding jury trials without jurors being physically present to hear the evidence and being in the same place as the judge. In my view, that is for good reason, so I invite the Government to think again and to accept Amendment 259B.

On the other amendments, having heard the noble Lord, Lord Ponsonby, explain his amendment about the need for health-needs screening, I agree with the noble Lord and invite the Government to accept that, too. As for the amendment in the name of the noble and learned Lord, Lord Falconer of Thornton, I fully accept the argument that it would be unusual for the use of live links to be directed by a judge in a sensitive case involving children, but I can see an argument that some such cases might justify a direction. I see no reason not to leave it to the judge in any particular case to determine whether the use of live links would further or impede the interests of justice. In this regard, we need to remember that refusing a live-links direction may in many cases cause delay in the determination of those cases, and that such delay may lead to particular injustice in cases involving children, for whom an early determination of the issues surrounding their care is often of great importance. So, although I see the point of this amendment, I suggest that it is better to leave it to judicial discretion in cases involving children.

[Lord Deben (Con)]

My Lords, the Committee will know that, as a non-lawyer, I very often attend these debates because I do not trust lawyers to make decisions about themselves. I therefore intervene here because, on this occasion, lawyers have brought to the surface a most important issue.

I am interested in whether people believe that justice has been done, and it seems to me that extending, in these circumstances, the use of technology to overcome the presence of people in court has a fundamental issue for the generality of the public believing that justice has been done. I am a great believer in Zoom and Teams. They have made my life a great deal better and I have spent more time in the beautiful countryside of Suffolk than I had been able to do before, but I am very conscious of the fact that there are many things that you can do perfectly well—indeed, better—through these techniques and there are some things that you cannot. One of the things you cannot do is replicate the public’s confidence in the concept of a jury. The point, which was made by the previous speaker so adequately, is that it is different, and our system is different because we have this element.

I cannot believe that there are circumstances when it would be sensible for the jury to be in one place and the judge in another. Therefore, I wish to say to my noble friend, whose explanations throughout today and previous days have been remarkable—he has been able to defend some very peculiar things more effectively than most people have managed to do, certainly in the other House—simply this: we have here a position in which it is hugely important that the public should feel that justice is done. I do not believe they will if we do it this way.

As somebody who was a Minister for 16 years, I warn him that I see the civil servant here, who said to some Minister somewhere, “Better do this in case”. Some of the cases proposed are frankly incomprehensible, unlikely and totally beyond any sense—but it is the duty of civil servants to say, “Better not leave this out, Minister, lest it should happen and then we’d be in trouble”. I suggest to my noble friend that he would be in less trouble by not doing some of these things than he would be in the extreme possibility that he might need this power.

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[Viscount Brookeborough (CB)]

Restorative justice is a very wide issue, and one should not think that because it does not work for road traffic accidents it does not work. Furthermore, it is done only with the agreement of the parties involved.

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

My Lords, we welcome this amendment and the opportunity to discuss restorative justice. We are very grateful to the noble Lord, Lord Coaker, for relaying the views of the noble Baroness, Lady Meacher, who has a long-held commitment to restorative justice that is well known.

We fully support the amendment and are concerned that the Government should take in how important restorative justice is felt to be in this House. This debate has given us the opportunity to make that clear. We were privileged to have the explanation of the reasons for restorative justice and the comprehensive account of its birth and development from my noble friend Lady Harris, who set out, from her experience of police work and as a magistrate, how restorative justice has developed and its value.

The amendment is important because we—some of us, anyway—have concerns that, although there is this commitment around the House, there may be a danger of progress stalling. That is why it is so important that there should be a call for the preparation of an action plan, that it should be laid before Parliament and that there should be a report on the progress on restorative justice.

Members of the House will have been interested to hear the account of the noble Viscount, Lord Brookeborough, on how restorative justice developed in Northern Ireland from a state of great hostility, where real potential enemies were confronting each other, and how restorative justice became reflective of community justice as perpetrators and victims came into contact. He made the point that this was very much not a soft option but was victim based, and that analysis from the circumstances in Northern Ireland was, I felt, reflected by the analysis of my noble friend Lord Paddick, who gave the history of restorative justice in London and dealt with the achievement of victim satisfaction and, interestingly, a greater feeling of safety on the part of victims. He also talked of the benefit for perpetrators in the contact between the victim and the perpetrator; that was a point made by the noble Lord, Lord Blunkett, who was one of the signatories to the amendment.

I will be very interested—we will be very interested—to hear the Government’s response, which we hope will give us an indication that the Government take restorative justice as seriously as the speakers this evening do and that their commitment to it will be increasing and continuing.

[Lord Wolfson of Tredegar (Con)]

My Lords, I thank the noble Lord, Lord Coaker, for proposing the amendment in the name of the noble Baroness, Lady Meacher, who is unable to be with us this evening. She spoke eloquently at Second Reading about the benefits of restorative justice, and I am very sorry that she is not in her place this evening. I am sure that I speak for the whole Committee in wishing her well. She did, however, have a meeting with me on this topic, and I record my thanks to her for her time and for the discussion. She expressed concern that the Bill did not include provision for restorative justice. The amendment is trying to fill that perceived gap by requiring the Home Secretary and the Justice Secretary to publish an action plan for restorative justice every three years.

I am grateful to the noble Baroness, Lady Harris of Richmond, for her support for restorative justice. I agree that, in the right circumstances, it can have far-reaching benefits. I have heard and felt the mood of the Committee on this point, but the truth is that I did not really need any persuading as to the importance of restorative justice. It can bring those harmed by a crime and those responsible for that harm into communication, and it can help everyone affected by the crime to play a part in repairing the harm; that is commendable. The Government support restorative justice where it can be suitably used.

However, with respect to the noble Baroness, Lady Bennett of Manor Castle, I would draw a distinction between civil cases and criminal cases. We have to remember that in a civil dispute—this is part of the answer to the road traffic point, but I will write to my noble friend as well—there are two parties before the court. I can settle my case on whatever terms I want if the other person agrees. When it comes to crime, there is a public interest; we prosecute in the name of the public. We do not allow victims to determine always whether the offender serves a punishment or not. I am not saying that restorative justice is not applicable, but we have to remember that there is a different set of criteria and principled underpinnings to our civil justice system and our criminal justice system.

Police, Crime, Sentencing and Courts Bill

Lord Marks of Henley-on-Thames Excerpts

Lords Hansard - part one & Committee stage
Monday 22nd November 2021 Lords Chamber

[Lord Berkeley of Knighton (CB)]

I wholeheartedly endorse my noble friend’s amendment, having seen on a couple of occasions interpreters who I seriously thought could barely speak English. Imagine the confusion when the interpreter translated “car” as “cow”. The judge became pretty exasperated at this point. However, there is one obstacle to this that I see. The noble and learned Lord, Lord Falconer, mentioned one obstacle, but the other might be that it is very difficult at the moment for courts to find interpreters at all. I seriously worry that there is going to be a shortage of interpreters, although I still feel that we should get the standard up, whatever happens. Perhaps we need to have courses for interpreters with proper qualifications making it a career in which people who could become interpreters could find some sort of vocation.

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

My Lords, I have put my name to this amendment for all the reasons put forward by the noble Baroness, Lady Coussins, in opening. She has campaigned for this change for a long time and has a great deal of knowledge and experience on the subject. We have also heard from the right reverend Prelate the Bishop of Leeds, the noble Lord, Lord Hogan-Howe, and my noble friend Lord Thomas, who still supports this reform despite the success of his experience with the Polish testator. I will therefore add little.

There is an answer to the points made by the noble and learned Lord, Lord Falconer of Thoroton, about the availability of interpreters and the need for speed in getting them to court, and by the noble Lord, Lord Berkeley of Knighton, about there being enough registered interpreters. I accept, as I expect would the noble Baroness, that there would be a need to transition the introduction of these proposals and to take steps to ensure that there were enough registered interpreters. We also have to consider the availability of interpretation in the very unusual languages that she mentioned.

This amendment is important. The duty of an interpreter in courts and tribunals is limited and specific. It is a duty to act as a conduit and only as a conduit; accurately to convey the meaning of the court’s proceedings to the non-English speaker; then, if and when that non-English speaker gives evidence, to convey the court’s and counsel’s questions to that non-English speaker; and lastly, and most importantly, to convey the non-English-speaking witness’s evidence to the court. That all demands accuracy, and to provide that accuracy requires a great deal of skill.

However, it is a duty to act as a conduit only, the aim being to overcome the language barrier. It is decidedly not to render assistance of a more general kind to the non-English-speaking participant in legal proceedings, still less to provide some kind of informal independent advice service. Yet, in spite of those very clear principles, many of us who have practised in courts and tribunals have seen how interpreters, often motivated by the best of intentions, can fail in their task. The inadequacies have been extensively and well highlighted by the noble Baroness, Lady Coussins.

There are two main reasons for such a failure. The first is that some set out to act as interpreters when they lack the necessary linguistic skills and they simply get the translation wrong. Sometimes the inaccuracy is noticed by someone in court who understands and speaks the language concerned who can then ensure that the witness’s meaning is further explored, but on other occasions it is not, and when it is not then injustices occur.

The second problem is that some interpreters overreach themselves. Again, often they are not motivated by an improper wish to intervene in the proceedings with ideas of their own, yet they do precisely that. They discuss evidence with the witness and act as assistants and advisers as well as interpreters. The noble Lord, Lord Hogan-Howe, pointed out that on some occasions the integrity of the witness and of the proceedings is called into question. That is wrong, and it subverts the proceedings of the court or tribunal concerned. The way in which we must deal with these issues is quite simply by training and minimum standards, and that is exactly what the amendment seeks to achieve.

I add this final point: I hope that, in order to maintain registration, it would be necessary to have adequate programmes of continuing education. Interpretation is a difficult skill that requires specialist and professional training and needs constant maintaining. I hope the Government will bring a positive response to this amendment.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, this has been a very interesting debate and I thank the noble Baroness for moving her amendment; in general terms we support it. The question marks would be about the standards, which she dealt with very fully, whether emergencies could be covered, and the potential costs. As the noble Lord, Lord Marks, said, there needs to be a transition to harmonising and raising standards in general.

I want to pick up a couple of points made by noble Lords. The noble Lord, Lord Hogan-Howe expressed surprise that there was not already a common standard and I was surprised as well. He went on to talk about there being written records in courts, but that is not the case in magistrates’ courts; they are not a court of record. As a sitting magistrate, I regularly have interpreters in court. In the 14 years I have been a magistrate I can think of three or four occasions when the magistrate colleagues I have been sitting with have told me that the interpretation was wrong. They knew the language and were able to inform us, and we were able to deal with the situation. But, as other noble Lords have pointed out, that will not always be the case. It is not that unusual for interpretations to be wrong.

I want to make a more serious point, which the noble Lord, Lord Marks, also made, about interpreters overreaching themselves. As I mentioned in an earlier group, I regularly sit in the domestic abuse court and I have done various bits of training on that. One of the points the training makes is that you have to be careful with interpreters and translators when dealing with domestic abuse cases in minority languages. It has been recorded that the interpreters overreach themselves and what the witness or the victim is saying in court will get back to that minority group. It is something that the court needs to be very aware of and handle sensitively to prevent that happening—and it does happen. Nevertheless, in general terms, we support this amendment.

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I turn to the question posed by the noble Baroness, Lady Coussins, who proposed this amendment, as to the point about obligations under contract regulations, which might tell against her amendment. When procuring services from external suppliers, the Ministry of Justice must comply with the Public Contracts Regulations 2015. By mandating the exclusive use of the NRPSI register, or setting a single qualification standard to cover the vast majority of our requirements, we would likely be in breach of those regulations. They prohibit contracting authorities from artificially narrowing the market and from creating unnecessary barriers to entry to bidding for government contracts, and require specific standards or processes which characterise the services provided by a specific supplier. In mandating the exclusive use of the National Register of Public Service Interpreters, or setting a single qualification standard to cover the vast range of our requirements, the Ministry of Justice would, as I say, likely be in breach of all three public contract regulation requirements and could be subjected to legal challenge from—

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

I take it the Minister would accept that legislation could quite easily disapply those regulations in the case of the use of registered interpreters, if that legislation were correctly worded and addressed to do so.

[Lord Stewart of Dirleton (Con)]

Hypothetically, yes, but I hesitate to give the noble Lord a definite commitment on that, as my information on these points is substantially in answer to the point raised by the noble Baroness. But, if the noble Lord will permit me, in exploring these important points, I will make sure that the Ministry of Justice writes to him and that there is a meeting with the noble Baroness, as she sought, to discuss with her the future of this amendment. I hope that that answer will satisfy both the noble Baroness and the noble Lord.

Just to continue on that point, it is important to bear in mind that we are reviewing and engaging in consultation with various bodies. But we need to take into account the broad-ranging needs of the Ministry of Justice and to ensure that we have a service appropriate for the wide range of circumstances and the various commissioning bodies to which I have made reference. There are concerns that mandatory NRPSI membership may give unnecessary control over the supply chain, and the police interpretation contract does not require interpreters to be NRPSI registered. We need to complete a full and objective assessment of MoJ needs across the board and not to introduce NRPSI standards when we do not know what impact they might have on the overall justice system.

The Ministry of Justice is looking constantly to improve the service for users and to work collaboratively with interpreter membership organisations and language service providers to ensure that the short, medium and long-term service needs of the criminal justice system are met. Her Majesty’s Courts & Tribunals Service is starting up a language services future pipeline working group, which will focus on the issue of securing suitably qualified interpreters in the long term.

I will develop that point. As the single biggest public sector user of language services, we believe it is important for the Government to encourage new entrants into the interpreting profession and to provide them with appropriate opportunities to build up their experience levels and to maintain standards of excellence. We have an independent quality assurance supplier, which has recently developed a subsidised trainee scheme, encouraging qualification in languages that are in high demand in our courts. We will continue to work with it, and with other organisations, to improve our service and to ensure it provides access to suitably qualified interpreters in the future. The arrangements that we have in place are designed specifically to ensure that our courts and tribunals are supported by high-quality language service interpretation that meets the needs of all our court users, both now and in the future.

I turn now to some of the submissions made by your Lordships in Committee. I fully accept the point made by the right reverend Prelate the Bishop of Leeds on the distinction between translation and interpreting. But on the submission made by the right reverend Prelate and the noble Lords, Lord Marks and Lord Hogan-Howe, I return to the point that there is a wide range of functions which interpreting has to carry out. With the greatest of respect, each of those noble Lords answering on this point predicated their submission on the fact that we were talking about translation at the very highest level—at the most important level of translating a potentially complex criminal trial.

In response to point made by the noble Lord, Lord Marks, again I accept that the single function of an interpreter in these circumstances is to act as a conduit by which English may be rendered into a foreign language and the foreign language rendered as accurately as it may be into English in order to assist the court. Again, that is at the very top end of the spectrum. Lower down, in simpler and more straightforward functions that I identified—the most elementary part of the range of needs that I discussed—it may well be that some well-meaning attempt to intervene and to assist, such as the noble Lord, Lord Marks, discussed, might be appropriate. I am thinking of the simple telephone inquiry that I referred to.

Police, Crime, Sentencing and Courts Bill

Lord Marks of Henley-on-Thames Excerpts

Lords Hansard - part two & Committee stage
Monday 22nd November 2021 Lords Chamber

[Baroness Kennedy of Cradley (Non-Afl)]

My Lords, I will speak in support of Amendments 292A and 292B. In doing so, I declare my interest as director of Generation Rent.

In my view, men advertising free rent for sex are not landlords, they are predators; they prey on vulnerable women and men with limited financial options. The fact that they use Covid as a marketing technique is abhorrent. They do not provide, or even attempt to provide, a safe, secure home; they deliberately take advantage of people. Although the law and CPS guidance in this area were updated a few years ago, they are still flawed and inadequate. Action against these predators needs to be enforced, investigated and prosecuted. The web platforms such as Craigslist, which is reportedly worth £7.5 billion, that facilitate this exploitation need to have action taken against them. They host these ads, yet they are ignored by law enforcement. Some of these predators may not be aware that they are breaking the law; however, I am sure that many are laughing at the law. They post their ads, which are open and explicit, and their criminal actions pass by unhindered because they know that they can post these ads without consequence.

Despite it being a criminal offence, as my noble and learned friend Lord Falconer of Thoroton said, there has only ever been one charge for sex for rent. That was in January this year, and it was because of the good work of journalists who passed their evidence to the police. Thanks to that and an investigation by ITV researchers in 2009, this then resulted in further criminal inquiries.

Of course, as director of Generation Rent, I would say that dealing with the criminal justice aspects of this issue is only one side of the problem. Hand in hand with these criminal justice changes there needs to be action to address the insecure housing situation and financial vulnerabilities of thousands of people in this country. We need a dramatic increase in social housing. It was reported last week that fewer than 6,000 social homes were built last year. We need more interventions to support renters in arrears. Rent arrears have tripled during the pandemic, and more renters than ever are now on universal credit. We need a proper and permanent end to private renters being able to be evicted for no reason with just two months’ notice. Hundreds of thousands of people are financially vulnerable and live at risk of homelessness and exploitation.

No one should ever be forced by coercion or circumstance to exchange sex for a home. The law needs to better protect renters from these predators, who seek to exploit them in return for a roof over their head. I very much support the amendments tabled by my noble friend and look forward to the Minister’s reply.

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

My Lords, I entirely support the motivation behind all the amendments in the group, comprehensively spoken to by the noble and learned Lord, Lord Falconer. I am, however, hesitant about the detail of the new offences proposed, and that goes further than the drafting—I fully accept that the noble and learned Lord suggested that there could be changes to the drafting. All five of the new offences have problems of breadth. That prevents me giving unqualified support to creating these new offences without considerable further research being undertaken.

I take the point made by the noble Baroness, Lady Fox of Buckley, that there is some danger to having a review of the spiking offence, but, in general, as distinct from the specific new offences, I am entirely unqualified in my support for the two amendments calling for urgent reviews of the law on exposure and on spiking. We need to consider carefully how the law in these two areas is working, the extent to which it needs reform and exactly what reform is needed. The review mechanism proposed in the amendments is comprehensive and sensible, and the amendments have the potential, if accepted, to lead to measured and evidence-based reform which will work well. It is that type of reform that we should all want.

The amendments creating each of the five new offences in this group respond to entirely justifiable views that something must be done, but I am not sure that the conditions on which criminal liability is imposed have been sufficiently reviewed and considered. The response I would like to see in each case from the Government is a promise to consider the new offences carefully and, with expert help, to see whether they can come up with offences that would be clearly defined, thoroughly drafted and delineated, and limited to behaviour that should properly be criminal, with all the pitfalls considered.

I fully agree with the noble Baroness, Lady Bennett of Manor Castle, that we have suffered in this Bill from trying to do everything in a rush. These amendments, while well intentioned and in the right spirit, fall into that danger.

We could take the creation of the new offence of non-fatal strangulation in the Domestic Abuse Act as a useful template. The proceedings on that provision in that Act also proved that there does not need to be undue delay in ensuring that a well-drafted provision reaches the statute book. Indeed, it might be possible to include new offences in all these areas, if only the Government would give a sensible allocation of more time for their consideration.

Perhaps I may give several examples of my concerns—they include those expressed by the noble and learned Lord, Lord Hope, but go further. On street harassment, in Amendment 284, I am concerned about the breadth of the proposed offence. The noble and learned Lord saw it as a virtue that it was not confined to sexual harassment. I do not agree with that, because “harassment” as defined is so broad that it criminalises behaviour that many people would not believe ought to be criminal.

I am also concerned about the use of the words “ought to know” in the context of harassment. When a defendant does not know that conduct amounts to harassment but is charged on the basis that he ought to have known it, is that properly a criminal offence? These are not drafting points; they reflect a concern about criminalising behaviour with a particular target—generally sexual harassment, as has been said—while included in the target are far more offenders than could properly have been envisaged.

On kerb-crawling, I am concerned that the definition in subsection (1) of the proposed new clause in Amendment 285 is far wider than anything that would normally be understood as kerb-crawling, which usually has to do with soliciting prostitution. This would cover any conduct amounting to harassment, after getting out of the vehicle, that is

“likely to cause annoyance, alarm, distress or nuisance”.

It seems to me that any incident of road rage could therefore be covered. The proposed offence is completely two-sided. The suggested penalty is revocation of a licence, or a fine. Why revocation of a licence? Incidents of road rage may be two-way—there may be blame on both sides. Why not a shorter ban, if the removal of a licence is indeed appropriate?

Amendment 292A concerns the offence of sex for rent and Amendment 292B concerns facilitating it. These amendments are directed at unscrupulous landlords and owners or providers of accommodation. Appalling behaviour, such as that outlined by the noble Baroness, Lady Kennedy of Cradley, would be covered by the proposed offence, but is that behaviour all that the proposed offence would cover? The definition includes the words “requiring or accepting” sexual relations. Is the provider of the accommodation always the only guilty party? Should such behaviour always be criminal? What about the landlady of the bed and breakfast who seduces the potential paying guest and offers him or her a free room in return? Is that always to be criminal? Even if it is, is that offence always triable on indictment only? Is that proportionate? I suggest not—it needs further thought. The business of sex for rent is disgraceful, in exactly the way expressed by the noble Baroness, Lady Kennedy, but we need to be very careful about what we introduce in response to the outrage that is felt as a result.

On Amendment 292T and sexually motivated homicide, of course one understands the motivation behind creating that new offence, but my concern is that, as drafted, the offence would criminalise behaviour where the perpetrator intended no harm at all to the person who died. It covers a person who kills another

“in the course of … sexual gratification”

and intends the act—in other words, has the intention to do whatever sexual act it is that led to the death of the person who dies. Would this not cover consensual acts desired or intended by both parties which, whether by accident or misfortune, led to the death of one of them? The noble and learned Lord said that this was there to outlaw the defence of rough sex. I understand that it is there for that purpose, but people have sex that gives them heart attacks—that is an extreme and, in a sense, absurd example, but there are a lot of sexual acts that lead to harm. You cannot criminalise them all just to deal with the defence of rough sex. Some of those acts would be unintentional and innocent.

My point is not to resist any change in the criminal law; it is simply to point out how careful we need to be in passing new legislation before we introduce new rafts of offences that go far too wide. That would be a restriction on freedom, not an improvement in the freedom of the citizen from new offences. I hope that the Government will respond to these amendments in a positive way, but with great care and in the spirit of compromise between the need for care and the need to criminalise behaviour that truly ought to be criminal.

--- Later in debate ---

[Lord Falconer of Thoroton (Lab)]

Then there might be a point where that becomes harassment.

I found the speech of the noble Lord, Lord Marks of Henley-on-Thames, to be terrible. He sounded like a Government Minister in relation to this, thinking of excuses why not to do something about harassment, not just against women—against other people as well—but particularly against women. I was very struck by the fact that the Minister at least acknowledged that there is a real problem in relation to this. Her speech accepted that something had to be done about it, which that of the noble Lord, Lord Marks, did not.

There was a difference between the view of the noble and learned Lord, Lord Hope of Craighead, which was broadly to accept the proposals that I am making in Amendment 284, and that of the noble Lord, Lord Marks, who raised two particular points in relation to street harassment. One was about the breadth of the offence, which is not limited to sexual matters. I do not think it should be limited to sexual matters. If somebody who is disabled is chased down the street by a group of people taunting them for being disabled, that should be harassment. The second point the noble Lord was worrying about was “ought to know”. The sort of conduct that we are seeking to criminalise here is where people behave in a way that is wholly unacceptable. If you say, “I did not know that it was criminal to wolf-whistle and chase somebody down the street,” the fact that you did not know that should not be any defence. Those were the only two points he made in relation to it.

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

I am grateful to the noble and learned Lord for giving way and I am sorry that he found my speech terrible. I think he missed the point. I am not suggesting that there should be no criminalisation of the sexual offences. It may well be that the behaviour about disability that he mentions is already criminal. The point I am making is that you have to be very careful to delineate offences so that they are criminalising only conduct that ought to be criminal.

The noble Baroness, Lady Fox of Buckley, with whom I do not always agree, made the distinction very well. In my understanding of the Minister’s speech, she and I were on exactly the same page. We both believe that violence against women and girls has to be treated extremely seriously. We both believe—and if I sound like a Government Minister, the noble and learned Lord knows that I am not and never have been one—that the Government have a responsibility to ensure that the ambit of the criminal law is kept within the ambit of the law that people can trust and have confidence in. They cannot do that if you randomly criminalise behaviour that ought to be without the criminal law.

[Lord Falconer of Thoroton (Lab)]

I do not know where to start in relation to that intervention. I agree with the noble Lord that we need a clear delineation. We need to come forward with something. We have come forward with something that, interestingly enough, the former Lord President of the Court of Session in Scotland found completely acceptable but the noble Lord, Lord Marks, does not, for the two reasons that he has given that seem to me to be ill founded. We need to make progress in relation to it. We are not going to have an opportunity to do it. What I take the noble Lord, Lord Marks, as saying is that he will co-operate with us in trying to delineate an offence for the purposes of this Bill because something needs to be done now.

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

The noble and learned Lord invites a response. I can certainly say that we will co-operate with that and I completely agree with him that the degree to which we are forced to rush this legislation inhibits progress on the kinds of proposals he is making. The difficulty is that one has to look at these offences in detail.

The noble and learned Lord suggested—rather unfairly, I think—that the two points I made against the street harassment offence he was particularly concerned with were the only two points I had. I made it absolutely clear in my speech that these were just examples. I agree with the Minister that you have to look very carefully at the whole area of new offences. That is why the reviews are important in relation to the spiking and exposure offences. You simply cannot legislate in a hurry to create new offences, as his amendment seeks to do.

[Lord Falconer of Thoroton (Lab)]

I have no idea whether that was a yes or a no to my question. I assume the two points the noble Lord made were his two best points and the other two were no better than that, so I do not know where the Liberal Democrats stand in relation to that now.

In relation to the sex-for-rent offence, various points were made about whether the case of the landlady who seduces the male tenant and then does not charge rent should be an offence. I am more than happy to work out whether there should be certain defences available. As the noble Baroness, Lady Kennedy of Cradley, made clear, it is something that urgently needs criminalisation—and criminalisation that does not require the victim to be either characterised as engaged in prostitution or incited to commit prostitution. The implication of the law, even if it gives the victim anonymity, is that by succumbing to the sex-for-rent proposal the person is forced to become engaged in prostitution. That is not the way the law should be. There should just be a straightforward criminalisation of it.

Of course, I am sure that the offence can be made better in terms of its drafting but it is a drafting issue, not an issue of substance between us. If we do not do it in this Bill, when will we do it? The point that the noble Baroness, Lady Kennedy of Cradley, makes is almost unanswerable: there has been one prosecution. I could not work out whether there is maybe another one coming, from what she said. That would make it two, over years, and it is wholly unacceptable that that is the position.

Police, Crime, Sentencing and Courts Bill

Lord Marks of Henley-on-Thames Excerpts

Lords Hansard - Part 1 & Report stage
Wednesday 8th December 2021 Lords Chamber

[Lord Carlile of Berriew (CB)]

My Lords, I am puzzled by the mechanism that the Government are trying to use to increase sentences, which, in some cases, should rightly be higher, in relation to the deaths of emergency workers. After a long period of development, we created a completely new mechanism: the Sentencing Council. Judges must have regard to sentencing guidelines in every case, and those guidelines are complex. They give examples of levels at which sentences should start in certain circumstances.

I see a number of noble Lords around this Chamber who have either acted as police officers or have prosecuted and defended manslaughter cases. In my case, I have done, on one side or the other, a number of one-punch manslaughter cases, in which there was a conviction, and perhaps a sentence of three or four years’ imprisonment. One can imagine circumstances in which that could have arisen where the person who died was an off-duty emergency worker trying to help someone, and the perpetrator of the offence had no idea that that person was an emergency worker.

Surely the better mechanism is to use the flexible, living instrument of the Sentencing Council, and the sentencing guidelines, and not to inhibit the discretion of judges. The Sentencing Council and the judges will, of course, respond to the pressure that rightly arises from the awful case that has given rise to this discussion and this amendment. With great respect to the Minister, relying on “exceptional circumstances”, a description that is always determined in a restrictive way—rightly so—by the Court of Appeal, seems to be the wrong mechanism to achieve the right result.

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

My Lords, on these Benches we share the shock and revulsion at the death of PC Harper and the way that it came about. We support the principle that a life sentence should be available, and even possibly the norm in serious cases, for the manslaughter of an emergency worker. But where we part company with the Government is in sharing the concerns of the noble Viscount, Lord Hailsham, and everybody else who has spoken. We are unhappy with the proposal that such a sentence should be mandatory unless a judge can find “exceptional circumstances”.

The word “exceptional” has been seen in the past as requiring circumstances that are quite out of the ordinary. Frankly, I took issue with the Minister when he treated the word as allowing more latitude than the usual interpretation of “exceptional” would permit. The MoJ press release uses the phrase “truly exceptional” to describe what is required. In that connection, the noble Baroness, Lady Fox, rightly made the point about legislation by press release—a point echoed by the noble Lord, Lord Carlile, when he talked about the knee-jerk nature of this type of legislation in particular cases.

We would have far preferred the amendment to permit judges the discretion to depart from the life sentence where the circumstances and the interests of justice required. The Government’s determination to prevent judges exercising discretion, as seen throughout this Bill, is frankly depressing. This is despite Victoria Atkins MP saying in the other place only yesterday, in answer to a question from my right honourable friend Alistair Carmichael MP, that:

“Fundamentally, the judiciary and magistrates should be trusted in their sentencing decisions.”—[Official Report, Commons, 7/12/21; col. 206.]


Frankly, we agree. I made these arguments in Committee in connection with my amendments to the minimum fixed sentence provisions in Clause 101—now Clause 102 —and I will make them again when we come to debate my amendments later on Report.

The Explanatory Note to these provisions asserts that they require a court to impose a life sentence on an offender who is convicted of unlawful and dangerous act manslaughter against an emergency worker. That is misleading. There is no requirement in the proposals that the manslaughter be dangerous, in the sense that there was danger to the life of the victim, as there so obviously was in the Harper case. The requirement for danger in the case of unlawful act manslaughter, on the cases and in the CPS guidelines to prosecutors who apply those cases, it is very limited indeed. It is necessary only that the unlawful act exposed someone—not even necessarily the victim who died—to the risk of “some harm”.

I take a hypothetical case, similar to that mentioned by the noble Viscount, of a bad-tempered 17 year-old suspected by a shopkeeper of shoplifting. The shopkeeper accosts him. A row ensues, which turns into a fight—not serious, but serious enough to draw a passing police officer to come into the shop to intervene. The officer tries to arrest the youth. The youth resists arrest. He throws a punch at the officer—not hard, but plainly an assault on a police officer in the execution of his duty and enough to be obvious to everyone that it could cause some harm. The officer falls backwards and sustains an injury that turns out to be fatal.

All the elements of unlawful manslaughter are there. The guideline sentence would probably be two to four years. The required sentence under these proposals would be life imprisonment. Are these circumstances “exceptional,” as that word is known to the law? No. is the sentence just for that 17 year-old, whose very bad behaviour had such tragic consequences? I would suggest clearly not, when one considers the overall criminality of the offence and the offender. Of course, the death of the victim would significantly aggravate the sentence. That is true for all manslaughter cases. And of course, the fact that the victim was a police officer acting in the course of his duty would be another seriously aggravating factor. But should those circumstances lead to detention for life for a 17 year-old?

The manslaughter excluded from the operation of these provisions is, as the Minister helpfully explained, manslaughter by gross negligence—a very sensible exclusion—or manslaughter mentioned in certain sections of the Homicide Act or the Coroners and Justice Act, which cover diminished responsibility by reason of a recognised mental condition, suicide pacts and loss of control, reducing murder to manslaughter if the specified conditions are met. But that leaves the whole area of unlawful act manslaughter within the provisions, and any such manslaughter of an emergency worker would attract the mandatory life sentence.

The current sentencing guidelines mentioned by the noble Lord, Lord Carlile of Berriew, which came into force as recently as 1 November 2018, suggest a range of sentences for manslaughter of between one and 24 years. They divide culpability into four ranges, from A at the top to D at the low end. The factors indicating lower culpability are as follows:

“Death was caused in the course of an unlawful act … which was in defence of self or other(s) (where not amounting to a defence) OR … where there was no intention by the offender to cause any harm and no obvious risk of anything more than minor harm OR … in which the offender played a minor role,”


or where the

“offender’s responsibility was substantially reduced by mental disorder, learning disability or lack of maturity.”

Those factors, or some of them, could quite easily be present in many cases of manslaughter of an emergency worker. So these sentences might—perhaps even often—cause serious injustice.

A further point was alluded to by the noble Lord, Lord Pannick. When a life sentence is passed, the release date is ultimately in the hands not of the courts but of the Home Secretary. Any Home Secretary, not just this one, is subject to political pressures. Were a victim, for example, the holder of a Queen’s Police Medal, and there was a campaign to keep the offender in custody on that account, how easy would it be for this or a future Home Secretary to succumb to pressure to keep the offender subject to a life sentence in custody, for far longer than would be just?

--- Later in debate ---

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I have another suggestion for the noble Lord, as we can all see that he is in a difficult situation. The Government have put forward their protest amendments, which are coming at the latter stage of Report. There is nothing to stop the Government from withdrawing this amendment now and bringing it back at the latter stage of Report. It will give everyone time to consider their position and the Government would not lose time. They could do it via Third Reading, or they could do it the way I am suggesting now. I hope that the Minister will consider that suggestion constructively.

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

I am sorry to make a second intervention before the Minister has had a chance to answer the first. The point I wanted to make to the House and for the Minister’s consideration is really a very similar one. It seems to me that the suggestion of the noble Lord, Lord West, is a viable one and the suggestion of the noble Lord, Lord Ponsonby, is also a viable one. The noble Lord mentioned listening. We all know that he does listen and that he is prepared to listen. That listening generally involves talking and having meetings about amendments and proposals. This is a government amendment, and the Minister is quite right to point out that it was publicised on 1 December. That was one week ago for an important change in the law. The suggestion of the noble Lord, Lord Ponsonby, allows this to be considered and discussed with noble Lords about the House during the rest of Report, and it could come back in January, because we have this very long period due to the Christmas break. May I suggest that that is the fair and sensible way to proceed, rather than insisting on putting the Question on it tonight, landing the House with an unexpected vote if there were to be a vote, and failing to discuss it with noble Lords around the House in the meantime, which could quite easily be done?

[Earl Attlee (Con)]

My Lords, I am not convinced that the noble Lord, Lord Ponsonby, is correct because if we delay the amendment, we would be putting it at the back of the Bill, but it has to be in this position in the Bill. Therefore, I think we should leave it until Third Reading rather than delay it.

Police, Crime, Sentencing and Courts Bill

Lord Marks of Henley-on-Thames Excerpts

Lords Hansard - Part 2 & Lords Hansard - part two & Report stage
Monday 13th December 2021 Lords Chamber

It seems to me that a pragmatic approach to this problem is to accept the wording of the clause, but for the Government to indicate as strongly as they can that it is not their intention that prison sentences should be the norm, even when the injury tends towards the upper end of the scale. Ultimately, the way of dealing with the various gradations of injury and carelessness would be a matter for the Sentencing Council to set out, as it has already done for this kind of offence in various grades. However, all of that will take time, which is why an indication from the Minister would be very important as we encounter this offence coming before magistrates and sheriffs soon after the Bill takes effect. I hope the Minister will be able to assure your Lordships that he has taken on board my concerns about the possibility of prison sentences for this offence by placing that possibility into its proper context. I beg to move.

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

My Lords, I support the opposition of the noble and learned Lord, Lord Hope, and my noble friend Lady Randerson to this clause. The clause as it stands is simply wrong in principle and I agree with the noble and learned Lord that this is not a case where you can simply tinker with the language. The problem is that the clause threatens to penalise the outcome of the offence—that is, serious injury—with imprisonment, yet the mental element of the offence of careless driving is no more than negligence. Careless driving involves no more than a driver falling below the standard of care of a prudent driver. All negligence is careless; a simple mistake or inadvertence will suffice. To make such an offence imprisonable because it results in serious injury is not a step that we have taken before. It offends against the principle that the seriousness of the offence should depend not just upon the act done, but on the state of mind of the offender. That is what distinguishes careless driving from dangerous driving, because dangerous driving involves a very serious departure from the normal standard of a careful and sensible driver.

I make one further point. In the absence of mechanical failure or an unexpected event, almost every accident is the result of negligence on the part of at least one of the drivers involved. Sadly, a large number of accidents involve serious injury. A broken limb is a serious injury for this purpose, as the noble and learned Lord, Lord Hope, pointed out.

The vast majority of accidents arising from negligence —whether they cause serious injury or not—do not currently lead to prosecution. I should be grateful to hear whether the Minister regards the establishment of this new offence as likely to lead to more prosecutions. This clause would leave it to the police and prosecuting authorities to pick out the few accidents which they decided should lead to prosecution. This would expose drivers to the risk of imprisonment for a simple mistake. Leaving this decision to the police and prosecuting authorities to implement in a very few selected cases would be arbitrary and unfair. It would introduce an unwelcome element of lottery into our justice system.

It may well be that the noble and learned Lord does not press this to a vote. I hope that, for the reasons I have outlined, we will get a very clear statement from the Minister as to how prosecuting decisions will be taken in these cases and as to what he regards as the likely approach to sentencing. I suggest that imprisonment for inadvertence is a retrograde step.

[Baroness Randerson (LD)]

My Lords, I was pleased to have the opportunity to join the noble and learned Lord, Lord Hope, on Amendment 60A—whether Clause 67 should stand part of the Bill. I thank the Minister for his time and willingness to try to assist us. I shall listen carefully to what he has to say.

The crux of this is when careless becomes dangerous. My experience in 20 years as a magistrate is that, basically, people are charged with both in the hope that the prosecution manages to make one or the other stick, as they say. I share the concern expressed by my noble friend of exactly what careless means. What should it mean? It should mean exactly what comes into our minds when we use the word. It should not be regarded as just a slightly milder form of dangerous. The thought processes behind it should be significantly different. Careless usually implies without specific intent—often a momentary lack of attention. Most of us sitting here will have suffered from this at some point in our driving careers. Most of us will have been lucky enough not to have caused an accident during that momentary lack of attention. Or, if we did cause an accident, hopefully it did not cause injury. Even the noble and learned Lord, Lord Hope, has struggled with the definition and hence opted to try to remove the clause.

I look forward to hearing the Minister’s response, because he has assured us that he will be able to elucidate sufficiently for us to feel that there will be a clear distinction. We do not want to face a situation in which, for example, a harassed mother with a child or two in the back who backs out of a parking space and inadvertently hits a pedestrian might go to prison, when she was backing out carefully in terms of her own concentration at that moment, was not going fast and was looking in her mirrors, but there were too many things happening at the same time for her to be able to concentrate fully and she made a terrible mistake.

I think we have all been guilty of that sort of momentary inattention or error of judgment and people should not find themselves being sent to prison for something such as that. It is therefore very important that the Minister is able to reassure us that that is not the kind of thing the Government have in mind.

Police, Crime, Sentencing and Courts Bill

Lord Marks of Henley-on-Thames Excerpts

Lords Hansard - Part 1 & Lords Hansard - part one & Report stage
Wednesday 15th December 2021 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

My Lords, it is a pleasure to rise to support government amendments. There are cases of child abuse and neglect that cannot be adequately punished under the current maximum sentences. It is rare for me to urge more punishment; I always try to focus on rehabilitation, deterrence and restitution, but here I see more punishment as appropriate, simply because protecting a child is our natural human response.

A few years ago, a grave was found in Italy containing a 10,000 year-old skeleton of a tiny baby girl, just a few weeks old. She was buried with what would have been quite precious things: an eagle owl talon, shell pendants and some precious stones. This showed us that, first, 10,000 years ago people cared about their children even when they were of a very young age, and we did not necessarily know that—burials from the Mesolithic period are quite rare—and, secondly, the fact that she was a girl showed that it was an egalitarian society and they did not have our western attitude of women being rather less than men.

There is, however, no deterrent effect required from criminal law because if the only thing stopping someone hurting a child is that it is illegal then there is something deeply wrong with that person. We have an innate reaction to child abusers—a natural hatred towards anyone who would do something so vile. However, that is not to say that every single case of child abuse or neglect is the same, so I am pleased that this is an increase in the maximum sentences and that the Government are not messing around with mandatory minimum sentences.

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

My Lords, we also support these amendments. There has been a ghastly spate of tragic cases of cruelty to children, both those mentioned by the Minister and others. We agree that increasing the maximum sentence from 10 years to 14 in cases of serious harm, and from 14 years to life in the case of death, is both acceptable and to be supported.

Along with the noble Baroness, Lady Jones, we note that the proposals in the government amendments, as the noble Lord, Lord Wolfson, has fairly pointed out, are for an increase in the maximum sentences, and there is no proposal for a mandatory minimum sentence. Nor is there any proposal for a judge to find exceptional circumstances before departing from a minimum, as was the case with the “Harper’s law” amendment to the Bill, made by the Government earlier in these proceedings, and as there is in the proposals to be discussed in the next group.

We agree with the Government that the offences targeted by these amendments are of the most grievous kind. We fully understand that the severity of the proposed penalties is warranted, and we therefore support the amendments.

[Baroness Chapman of Darlington (Lab)]

My Lords, we support the amendments. I read with interest the debate on Report in the Commons, where there was clear support for them across the House. The concern to protect children and vulnerable adults is felt particularly keenly at this point. We have all been deeply shocked and moved by the recent cases, and by the voice of Arthur Labinjo-Hughes—I cannot bear to repeat his words. It is little wonder that the Government feel moved to act on this issue. Our justice system should reflect the public’s disgust and concern at what has happened.

However, I want to say something about the impact of these amendments. As hinted at by the noble Baroness, Lady Jones, increasing sentences will not prevent these crimes. These measures are the right thing to do and we support them, but they will not prevent these crimes. The Government have systematically undermined early intervention and prevention services, which have largely been delivered by local government, along with health in schools, which have combined to protect children and vulnerable adults. I ask the Minister to speak to his colleagues about working urgently and strategically to deal with the now well-understood and reported problems of poor communication, lack of curiosity, excessive case loads and inadequate co-ordination of services that put child services under so much strain and children at risk. Addressing those issues would do far more to safeguard children and vulnerable adults. For today, though, we support these changes, insufficient though they are.

--- Later in debate ---

Moved by

[Lord Marks of Henley-on-Thames]

71: Clause 102, page 88, line 20, leave out “there are exceptional” and insert “such a sentence would be contrary to the interests of justice having regard to”
Member’s explanatory statement
This amendment, along with Lord Marks’ amendment to page 88, line 23, would remove the requirement for the circumstances to be exceptional before a judge was empowered to decline to impose the minimum sentence (for offences of threatening with weapon or bladed article) and would entitle the judge to do so where in the circumstances the judge concluded that such a sentence would be contrary to the interests of justice.

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

My Lords, of the amendments in this group, Amendments 71 to 78, to which I speak now, replicate the amendments I spoke to in Committee, which were also in my name and the name of the noble Lord, Lord Pannick, whom I thank for adding his support to them. Noble Lords will remember that in Committee we had significant and powerful support across the Chamber, including from noble and learned Lords and two former Lord Chief Justices, among them the noble and learned Lords, Lord Thomas and Lord Judge.

These amendments raise an important point of principle concerning judicial discretion. The proposed provisions in Clause 102 impose mandatory minimum sentences and permit judges to depart from those mandatory minima only in “exceptional circumstances”. That amounts to a serious attack on judicial discretion in sentencing and is likely in many cases to give rise to significant injustice. That is true for all four of the minimum sentences proposed: six months in custody for adults threatening with a weapon or bladed article, and four months for 16 and 17 year-olds; seven years for a third class A drug trafficking offence; three years for a third domestic burglary; and six months, or four months for 16 and 17 year-olds, for a repeat offence of carrying an offensive weapon or possessing a bladed or pointed article in a public place or on educational premises.

I am grateful to the Minister for considering our arguments on this topic and for meeting me to discuss them. However, my understanding is that he is likely to maintain the position he took in Committee. He is likely to argue that the judge’s power to depart from the minimum sentences if they find they are exceptional circumstances allows a judge some latitude. Yet he maintains the position that “exceptional circumstances” is a phrase well known to the law as a threshold and should not be changed.

The reality is that the phrase “exceptional circumstances” allows a judge very limited latitude indeed. It is true that the noble Lord, Lord Ponsonby, with his long experience as a magistrate, has said that magistrates’ courts are in the habit of treating the requirement for “exceptional circumstances” with a degree of flexibility. Perhaps that is true of exceptional hardship in relation to disqualifying people for acquiring 12 points on their driving licences. However, the reality is that, properly applied and precisely because this is a threshold phrase well known to the law, as the Minister says, the requirement for exceptional circumstances is far more rigid and far stricter than that experience of magistrates’ courts would imply. Courts have regularly held the phrase to mean that the circumstances must be completely out of the ordinary for exceptional circumstances to be found. Indeed, it is patently obvious that that is the reasoning behind the proposed provisions in Clause 102. The Government are concerned to ensure that more severe custodial sentences are imposed in the cases to which these minima would apply.

Our amendments, on the other hand, would allow for judicial discretion to depart from the minimum sentences where the judge decides that it would be contrary to the interests of justice to impose such a minimum sentence, having regard to circumstances relating to the offence or the offender. Under our amendments, the prescribed minimum sentences would remain the default position—the default sentences—but judges would have the power to depart from them if they thought that the minimum sentences would be unjust. We believe that if only the Government could trust the judges to apply the law and to do what the interests of justice require in particular cases, they would simply accept these amendments.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

As we found in Committee, it is very tempting for Ministers to start parsing or glossing the term “exceptional circumstances”, and I hope the noble Lord will forgive me if I do not do so. That phrase has been used in statute and considered at the very highest level by the judiciary. The application of statute is properly a matter for the judiciary. In these circumstances, it is not helpful for a Minister on his feet to start parsing or glossing what has been said by the Court of Appeal. With genuine respect, I will leave that matter there and leave it for the Court of Appeal to explain what “exceptional circumstances” means. However, I repeat that the noble and learned Lord, Lord Hope of Craighead, said in terms that he found that test not a difficult one to apply—indeed, he found it an easier and more straightforward test to apply than the interests of justice.

Amendment 82A, tabled by the noble Lord, Lord Ponsonby of Shulbrede, with the support of the noble Lord, Lord German, would require a court imposing a custodial sentence of six months or less to state its reasons for being satisfied that neither a fine nor a community sentence could be justified.

The noble Lord, Lord German, reminded us of the Government’s position set out in 2020, which, of course, I stand totally by. There are plainly issues of rehabilitation and reoffending when it comes to short sentences, and that is why, as I explained in Committee, provisions in the Sentencing Code already ensure that custody should be a last resort in all cases, and for the shortest term possible. Even where the custodial threshold is met, courts retain discretion to impose non-custodial sentences after taking into account wider considerations. The code also places a duty on the court to explain its reasons for passing any sentence, and this can include an explanation of the factors the court has taken into account in making its sentencing decision.

This amendment also sets out a series of principles for courts to have regard to when imposing a custodial sentence of six months or less. For the most part, these are included in the independent Sentencing Council’s Imposition of Community and Custodial Sentences guidelines. As courts are already under a statutory duty to follow any sentencing guidelines relevant to the offender’s case, the Government do not consider it necessary to put these principles on a statutory footing.

As the noble and learned Lord, Lord Hope of Craighead, said, if an alternative sentence to custody can properly be handed down, it should be. While I do not propose again to gloss the sentencing guidelines, I respectfully agree that that is a useful summary of them. Again, as the noble Lord, Lord Ponsonby, said with his own experience, it is often only when community sentences have failed that a custodial sentence is handed down. That, again, is in accordance with the approach set out in the sentencing guidelines.

Of course, I listened very carefully to what was said by the noble Lord, Lord Bradley, with whom I have had discussions on this and other issues, and by the right reverend Prelate the Bishop of Gloucester—I was going to say the “campaigning” Bishop of Gloucester, but I will leave out the adjective, although she might like it. I hope that they will each be satisfied with—and certainly understand—what I have said and the reasons for the Government’s position on these amendments. For the reasons that I have set out, I urge the noble Lord to withdraw his amendment.

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

My Lords, I am very grateful for the support that I have had for my Amendments 71 to 78 from Members of the House and for all the contributions to this important debate. I am also grateful to the Minister for his response. However, when one analyses it, what he was saying about discretion cannot survive a proper reading of what is meant by “exceptional circumstances”. Certainly, it is the case that authorities have analysed exceptional circumstances, including the Court of Appeal authority of Nancarrow that he mentioned.

Nevertheless, the nub of it is that “exceptional circumstances” means circumstances that are very unusual, and what the Minister did not address was my point that there are many situations which in general experience are commonplace, and the circumstances are common- place, but where it would nevertheless be unjust—contrary both to the judges and to any normal sense of justice—to impose the minimum sentence. Because the circumstances are not exceptional, the judge would be bound to impose that sentence.

In answer to the points of the noble Lord, Lord Faulks, of course it is the case that judges are daily addressed on the basis that they should take an exceptional course of leniency, and it is not surprising that, as a recorder, he has been asked to take that course many times. However, that does not mean that he has been asked to find that circumstances are exceptional. It is interesting that the test for the sentencing guidelines and departing from them is “contrary to the interests of justice”, and not a requirement that there should be exceptional circumstances.

On the matter of policy, I respectfully suggest that the answer to the Minister’s point was comprehensively expressed by the noble and learned Lord, Lord Garnier. He used the word “wise”. It may be that the Government are entitled to legislate in this way, but is it wise? The Minister said that there was a difference between “wise” and “constitutionally proper”. The point I am making is simply that, although it may be a matter of policy in the sense that the Government can have the policy and can legislate—as the noble and learned Lord, Lord Garnier, said, Parliament can do what it likes—the question is: is it bad policy? We say that it is bad policy because it forces judges to do what they would not otherwise do, having regard to the interests of justice.

In respect of the point made by the noble and learned Lord, Lord Hope, of course it is right that it may be easier to apply a test of exceptional circumstances, because the authorities are so clear, but the point about the interests of justice, as the noble and learned Lord, Lord Judge, picked up in Committee, is that sentencing decisions are difficult.

[Lord Hope of Craighead (CB)]

I am grateful to the noble Lord for giving way. My point is that I would be drawn into arguments with myself about policy in deciding whether to do what Parliament has asked me to do. I am afraid that, as a judge, the constitutional position is that I have to accept what Parliament has laid down. I do not like minimum sentences; they are a very blunt instrument, and I can think of cases where I would not want to be driven down that road. But that is not my position as a judge. I have to follow what Parliament has said, but I have leeway with the phrase which has been inserted in the Bill. That is my point.

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

My Lords, I understand that point. It is very rare that I disagree with the noble and learned Lord, but it is still the fact that what Parliament decides, judges must implement. If they decide that there is an exceptional circumstances test, that is far more limiting than an interests of justice test. That is my point and I will close on it—except to say that the default position under my amendment is to accept minimum sentences and simply to allow the judges to depart from those sentences where it is just to do so, having regard to all the circumstances. I do not believe that there has been any answer presented to that central position, on which I therefore wish to test the opinion of the House.

--- Later in debate ---

[Lord Faulks (Non-Afl)]

The noble Lord, Lord Sandhurst, identifies the need for consistency, and he is right. I wonder whether this amendment was not provoked by the appalling case of Phillip Leece, who not only committed rape but named the victim and posted grossly insulting material on the internet. That is something that was probably outside the scope of those who drafted this legislation. Newspapers are regulated—as I know, as the regulator of newspapers—but social media remains wholly unregulated. There is significant work to be done in this regard, which Parliament will grapple with when looking at the online safety Bill. This is just the sort of matter that a duty of care should deal with, in a proper system to prevent this sort of posting taking place.

I am sure that the Attorney-General is thinking carefully about contempt of court aspects. Of course, there is a power on the part of the judge to deal with the matter much more seriously than with the derisory fines that are currently imposed, but it is something that has to go to the administration of justice, and it is not always predictable or easy to identify what cases will or will not constitute contempt of court—so I welcome that.

Although I wholly understand why this amendment has been proposed, it seems that it would be stark and inconsistent with other provisions—but it addresses a mischief that very much needs to be addressed.

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

My Lords, I shall speak briefly to this group of amendments. First, I turn to the minimum sentence for rape of seven years, subject to an exceptional circumstances disregard or permitted departure. We acknowledge and endorse everything that has been said to the effect that rape is the most appalling crime. The terribly low success rate of prosecutions of which the noble Baroness, Lady Chapman of Darlington, spoke is acknowledged by everyone and has been the subject of a great deal of research by parliamentarians, policymakers and the Government. It needs addressing. The problems that she talked of, of low reporting rates and very high withdrawal of support, along with very low conviction rates, all need addressing. However, I am not convinced that a minimum sentence would address any of those things. Furthermore, for all the reasons, which I shall not repeat, I believe that the use of an exceptional circumstances test for the ability of judges to depart from a minimum sentence is simply wrong.

I also agree with the noble Viscount, Lord Hailsham, when he pointed out that, as anybody who has dealt with rape cases in criminal courts knows, rapes are so very different, the one from another. He was right to point to the very wide range of sentences endorsed in the sentencing guidelines, which mean that courts treat rape very differently, from the milder cases to the very serious cases that merit life imprisonment. I also have some concern that, in some cases, it would make juries even less likely to convict if they knew that there was a minimum sentence of seven years. I cannot support, and I do not think that we cannot support generally, the proposition that this seven-year minimum sentence should be legislated for.

By contrast, Amendment 78B, which would increase the sentence for publishing the identity of sexual offences complainants, is one that we do support. I suspect that it is not often realised quite how serious an offence this is. Sometimes there is a substantial risk of further harm when the identity of a complainant is published. There is very often significant fear on the part of the complainant if her name—as it is usually, although it may be his name—is published. There is almost always really significant distress caused by an unlawful publication. It is of course open to complainants to waive anonymity if they wish. But if they do not wish their identity to be published, to have the law flouted in the way the offence requires seems to me to justify a sentence of imprisonment in some cases. It is important to hear that these are only maximum sentences that we are dealing with.

I agree with the noble Lord, Lord Sandhurst, that there are other cases of unlawful disclosure that should be considered and reviewed but, that being the case in an ideal world—and we all know that these things do not happen as fast as they should—that is no reason for not doing anything at all. So we support Amendment 78B.

For all the reasons given by my noble friend Lady Brinton and, no doubt, to be given by the noble Lord, Lord Ponsonby—the noble Baroness, Lady Chapman, has already spoken to it—we support Amendment 78D on the duty to inform under the unduly lenient sentencing scheme, as well as the extension of the time limit for complaint in respect of unduly lenient sentences. In Committee we went through the reasons for the whole-life order to be taken as a starting point in cases of abduction, sexual assault and murder, and we do support that—again, because it is only a starting point—and this ranks right up there with the other serious offences for which a whole-life order is appropriate.

We support for the reasons given by my noble friend Lady Brinton her amendment on home detention curfews as well.

[Lord Wolfson of Tredegar (Con)]

My Lords, these amendments, introduced by the noble Baroness, Lady Chapman, on behalf of the noble Lord, Lord Ponsonby, include those aimed at increasing penalties for sexual offences, those focused on enabling victims to challenge a sentence perceived to be unduly lenient, and those aimed at restricting additional offenders from release on home detention curfew. We debated these at some length in Committee, and we listened carefully to the arguments put forward by noble Lords in support. There are obviously some emotive and important issues here, and I welcome the opportunity to set out the Government’s position again this evening. But while the sentiment behind the amendments is fully supported by the Government, we do not consider them to be either necessary or the right course of action.

Let me start with a point on which I think there is common ground, as was set out by the noble Baroness, Lady Chapman. Victims must feel that they are put right at the heart of the criminal justice system. They must be supported so that they can engage properly at every step of what can be an incredibly difficult journey. As the noble Baroness, Lady Brinton, set out and referred to, last week we launched a package of measures to help achieve this: a consultation on a new victims’ law; a national rollout of provision of pre-recorded cross-examination for sexual and modern slavery victims; national criminal justice and adult rape scorecards; and a progress report on the end-to-end rape review action plan. We believe that those initiatives, individually and collectively, will raise the voice of victims in our criminal justice system and give them the justice they deserve. That especially includes the victims of often horrendous crimes of sexual violence.

I will address first the amendment regarding minimum sentences for rape. There is no dispute across your Lordships’ House that such crimes should be punished with sentences that match the severity of the offence. But the noble Baroness, Lady Chapman, is proposing that a court be required to impose a minimum custodial sentence of seven years for a rape offence committed under Section 1 of the Sexual Offences Act 2003,

“unless … there are exceptional circumstances … which justify it not doing so.”

Rape offenders already receive very significant sentences. The courts can, and do, pass sentences of life imprisonment. In 2020, of those who received a custodial sentence of less than life for a Section 1 rape offence, the average sentence was almost 10 years—117.5 months—an increase of almost 15% over the last decade. More than two-thirds of adult offenders sentenced for a Section 1 rape offence received a custodial sentence of over seven years, which is the minimum proposed by the amendment.

In this Bill, and in legislation introduced last year, the Government are ensuring that serious violent and sexual offenders, including rape offenders, sentenced to over four years now spend two-thirds of their sentence in prison, as opposed to having automatic release at the halfway point. However, the nature of this offence and the wide range of circumstances which the court may need to take into account are complex, as my noble friend Lord Hailsham pointed out. I also agree with the noble Lord, Lord Marks of Henley-on-Thames, although, while I know what he meant, I am not sure I would use the word “mild” for any case of rape. I know he did not mean it in that way. What we are dealing with here is different degrees of seriousness of an offence, and I know he meant that.

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

May I confirm that? It was the wrong word to use, and I apologise.

[Lord Wolfson of Tredegar (Con)]

I was keen to help the noble Lord out, because I think we all knew what he meant, but it is important in these areas to make sure that the record is really clear. I think we all agree that it is especially important, therefore, because we are dealing with different degrees of seriousness in a complex offence, that we maintain judicial discretion for the courts to consider the full facts of a case before them and decide on the appropriate sentence.

Although the sentence lengths for rape have increased, we have long recognised that the decline in the number of effective trials for rape and serious sexual offences is a cause for significant concern. Let me take a moment to mention some of the wider action we are taking: we have introduced legislation to tackle crimes including stalking, forced marriage, FGM and the those set out in the Domestic Abuse Act; we have committed to more than doubling the number of adult rape cases reaching court; we published the end-to-end rape review on 18 June; and we want to improve the number of rape cases being referred by the police, being charged by the CPS and reaching court. I have already mentioned the victims Bill. In July, we published the tackling violence against women and girls strategy, and we hope that also will help us better target perpetrators and support victims of these crimes, which disproportionately, although not exclusively, affect women and girls.

I turn to Amendment 78B, which would increase the maximum penalty for publishing the identity of sexual assault victims—currently a summary, non-imprisonable offence—to two years in custody. We do not dispute that the current maximum penalty is too low. Our concern, however, is that it would not be right to legislate, as the amendment does, only for the Sexual Offences (Amendment) Act 1992.

The naming offence in Section 5 of that Act protects complainants in sexual assault cases and was later extended to cover human trafficking cases as well. The effect of this amendment would be that the penalty for breaching these restrictions would be markedly different from the penalty for other offences also involving the breach of anonymity. Two of these, in relation to female genital mutilation and forced marriage, are modelled on the 1992 Act, and it therefore would be difficult to impossible to justify treating these identical offences differently from the 1992 Act offence.

Police, Crime, Sentencing and Courts Bill

Lord Marks of Henley-on-Thames Excerpts

Lords Hansard - Part 1 & Lords Hansard - part one & Report stage
Monday 10th January 2022 Lords Chamber

Moved by

[Lord Marks of Henley-on-Thames]

97: After Clause 164, insert the following new Clause—
“Women’s Justice Board
(1) There is to be a body corporate known as the Women’s Justice Board for England and Wales.(2) The Board is not to be regarded as the servant or agent of the Crown or as enjoying any status, immunity or privilege of the Crown; and the Board’s property is not to be regarded as property of, or held on behalf of, the Crown.(3) The Board must consist of 10, 11 or 12 members appointed by the Secretary of State.(4) The members of the Board must include persons who appear to the Secretary of State to have extensive recent experience with women in the criminal justice system.(5) The Board has the following functions, namely—(a) to meet the particular needs of women in the criminal justice system;(b) to monitor the provision of services for women in the criminal justice system;(c) to advise the Secretary of State on—(i) how the aim in subsection (5)(a) might most effectively be pursued;(ii) the provision of services for women in the criminal justice system;(iii) the content of any national standards the Secretary of State may see fit to set with respect to the provision of such services, or the accommodation in which women are kept in custody; and(iv) the steps that might be taken to prevent offending by women;(d) to monitor the extent to which the aim in subsection (5)(a) is being achieved and any standards met;(e) for the purposes of paragraphs (a) to (d) above, to obtain information from relevant authorities;(f) to publish information so obtained;(g) to identify, make known and promote good practice in— (i) meeting the particular needs of women in the criminal justice system;(ii) the provision of services for women in the criminal justice system;(iii) the prevention of offending by women;(iv) working with women who are, or are at risk of becoming, offenders;(h) to commission research in connection with such practice;(i) with the approval of the Secretary of State, to make grants to local authorities and other persons for the purposes of meeting the aim in subsection (5)(a) and the provision of services to women in the criminal justice system, subject to such conditions as the Board considers appropriate, incl uding conditions as to repayment;(j) to provide assistance to local authorities and other persons in connection with information technology systems and equipment used or to be used for the purposes of the aim in subsection (5)(a) and the provision of services to women in the criminal justice system;(k) to enter into agreements for the provision of accommodation for women in the criminal justice system, but no agreement may be made under this paragraph in relation to accommodation for women in the criminal justice system unless it appears to the Board that it is expedient to enter into such an agreement for the purposes of subsection (5)(a);(l) to facilitate agreements between the Secretary of State and any persons providing accommodation for women in the criminal justice system;(m) at the request of the Secretary of State, to assist in carrying out the Secretary of State’s functions in relation to the release of offenders detained in accommodation for women in the criminal justice system; and(n) annually—(i) to assess future demand for accommodation for women in the criminal justice system;(ii) to prepare a plan setting out how they intend to exercise, in the following three years, the functions described in paragraphs (k) to (m) above, and any function for the time being exercisable by the Board concurrently with the Secretary of State by virtue of subsection (6)(b) below which relates to securing the provision of such accommodation, and(iii) to submit the plan to the Secretary of State for approval.(6) The Secretary of State may by regulations made by statutory instrument—(a) amend subsection (5) above so as to add to, subtract from or alter any of the functions of the Board for the time being specified in that subsection; or(b) provide that any function of the Secretary of State which is exercisable in relation to women in the criminal justice system is exercisable concurrently with the Board.(7) The power of the Secretary of State under subsection (6)(b) includes power—(a) to provide that, in relation to any function that is exercisable by the Secretary of State in respect of particular cases, the function is exercisable by the Board only—(i) where it proposes to exercise the function in a particular manner, or(ii) in respect of a class of case specified in the order, and (b) to make any supplementary, incidental or consequential provision (including provision for any enactment to apply subject to modifications).(8) No regulations under subsection (6) may be made unless a draft has been laid before and approved by a resolution of each House of Parliament.(9) In carrying out their functions, the Board must comply with any directions given by the Secretary of State and act in accordance with any guidance given by the Secretary of State.(10) A relevant authority—(a) must furnish the Board with any information required for the purposes of subsection (5)(b), (c) or (d) above; and(b) whenever so required by the Board, must submit to the Board a report on such matters connected with the discharge of their duties as may be specified in the requirement.A requirement under paragraph (b) above may specify the form in which a report is to be given.(11) The Board may arrange, or require the relevant authority to arrange, for a report under subsection (10)(b) above to be published in such a manner as appears to the Board to be appropriate.(12) In this section “relevant authority” means a local authority, a chief officer of police, a local policing body, a local probation board, a provider of probation services, a clinical commissioning group and a local health board.(13) Schedule (Women’s Justice Board: further provisions) has effect.”Member’s explanatory statement
This new Clause makes provision for the establishment of a “Women’s Justice Board”, along the lines of the Youth Justice Board. The drafting closely follows the form of the provisions establishing the YJB in the Crime and Disorder Act 1998.

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

My Lords, the amendments in this group propose the establishment of a women’s justice board, along the lines of the Youth Justice Board. I am grateful to the noble Lord, Lord Ramsbotham, and the noble Baroness, Lady Bennett of Manor Castle, for adding their names.

The drafting of the two amendments remains as it was in Committee, and closely reflects the wording of the provisions in the Crime and Disorder Act 1998 establishing the Youth Justice Board. When we debated these amendments in Committee, on 17 November, they enjoyed widespread support from everyone, except the Minister. The diversity and unanimity of the support we received, I suggest, speaks volumes. Indeed, the support from the Labour Party was unqualified. The noble and learned Lord, Lord Falconer, said:

“We on this side of the Committee strongly support these excellent amendments”.—[Official Report, 17/11/21; col. 327.]


He spoke of the need to give real drive to the movement to further the needs of women within the criminal justice system.

No one disputes that the Youth Justice Board has been a resounding success. It has concentrated effort on recognising and addressing the special needs of young people within the criminal justice system. It has diverted many away from involvement with the system, and offered help and support to those who have been convicted and sentenced, both with community sentences and in custodial settings. The figures speak for themselves: in the last 15 years, the number of under-18s in custody in this jurisdiction fell by about three-quarters, to well under 800 now.

The establishment of a women’s justice board could, we believe, achieve similar success for women, by concentrating effort and resources on helping women who come into contact with the criminal justice system, diverting them from custody, improving the effectiveness of community sentences for women, increasing their use in consequence, and building ways of offering women offenders specialist support with the special issues and difficulties that they face. In Committee we debated those at length.

We also considered the appalling effect of custody on women and their children. The harsh truth is that 19 out of 20 children whose mothers are imprisoned are forced to leave their homes. All the evidence is that those children are themselves more likely to become involved in crime, more likely to suffer from mental ill health and to fail at school, and less likely to find stable employment as young adults—all to the detriment of society at large. The Minister, replying in Committee, disagreed with the proposition that there is a crisis of confidence in women’s justice. That is not the view of the overwhelming majority of experts and those working in this area, who are all deeply troubled by the lack of specialist support and consideration for women in the system.

It is true that, as the Minister said, we have the female offenders strategy, which started in 2018, and the Advisory Board on Female Offenders. The Ministry of Justice is doing work in this area, but it was working in the area of youth justice before 1998, and that did not obviate the need for the Youth Justice Board.

The Minister said in Committee, and repeated when we met the other day—I am grateful to him for the time and care that he has taken, as he always does, to consider the arguments on this issue—that the key point, from the Government’s point of view, was that we do not have a separate criminal justice system for women and girls, as we do for young offenders. As he put it, there is no separate legal framework; women are dealt with as part of the adult offender population. He drew a distinction, for that reason, between women’s position in the criminal justice system and that of young offenders, whom the law treats differently from adults.

I am afraid I do not follow that logic. It seems to me that it contains a non sequitur. The Government accept that women, like young offenders, have special needs in the criminal justice system. The Minister himself spoke of women having particular needs which we needed to identify. I say we need to do more than to identify them; we need to address them. He spoke of the prevalence of mental health issues, of the number of women survivors of abuse—I took it that he was referring to both sexual and physical abuse—and of the closer link among women offenders between drug and alcohol abuse and reoffending than exists for male offenders.

The Minister did not speak in Committee about the particular family issues faced by women in the system—but the effects of custody on the children and families of women offenders are devastating. We have heard about them, in particular, in the debates on the amendments proposed by the right reverend Prelate the Bishop of Gloucester on primary carers. It is no answer to the need for special attention to women’s needs in the criminal justice system to say that women are subject to the same criminal law as men. That fact, of itself, does nothing to address those special needs.

The Minister raised in Committee the issue of the time needed to establish a women’s justice board, but if we could achieve, in 23 years, anything like the same improvements as the Youth Justice Board has achieved in that time, that would be swift progress indeed. He also spoke of the cost implications of establishing a women’s justice board. That does not allow for the substantial savings that would follow from keeping even a few women out of custody, with the knock-on social costs of taking children into care, and the social costs that follow from women’s involvement in the criminal justice system, particularly when they receive custodial sentences.

There is simply no genuine and convincing answer to this proposal. I urge the Government simply to accept that establishing a women’s justice board would be the most effective, and the most promising, way to achieve all that they themselves say that they wish to do for women who find themselves entangled in a system that lamentably fails to address their particular difficulties. I beg to move.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I support the amendment, because there is a real problem at the heart of criminal justice, which leads to the dissatisfaction that women feel about the justice system. We have created our system around a notion of gender equality that followed on from many years of using the male pronoun, “he”, with the person at the heart of the criminal justice system being a male agent. We then decided that we could not have that any longer, and that the way forward was gender neutrality. But of course gender neutrality is to a large extent a fiction. We know that that neutrality—creating some sort of supposed equality in criminal justice—actually creates further inequality. To treat as equal those who are not yet equal creates only further inequality. I want to emphasise that: it creates further inequality to pretend that we now have equality between the sexes. That is why I feel—although I know it is never comfortable for Governments to take ideas from elsewhere—that having such a board is a necessary part of addressing the great public discontent about the system and the way it deals with women.

I support the idea of a board that looks specifically at women in prison. We know that the majority of them have mental health issues and that their dependency on drugs and drink often derives from backgrounds of abuse: having been brought up in families where abuse was prevalent, or having themselves been at the receiving end of abuse. Understanding women in prison, how they themselves almost invariably have been victims of crime, is one of the ways in which we will progress the system. The Government should adopt this idea.

We need to concentrate on addressing what happens when women go to prison, because often they lose their accommodation and their children are taken into care. The disruption of everything that matters to them is so great that it is very difficult to repair. I therefore support the amendment. It is worthy of this House’s consideration and it is regrettable that it has been dismissed out of hand. There is a problem at the heart of this: you cannot move from inequality to equality simply by saying that there is equality now.

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The underlying point is that we have a single adult criminal justice system. We should not, therefore, have a separate women’s justice board. The Youth Justice Board is for a separate justice system. Essentially, for that reason, I invite the noble Lord, Lord Marks, to withdraw his amendment.

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

My Lords, I am grateful to the Minister for that response. I am reassured by the fact that he says that he understands the case, of course, but I am not reassured by the logic that drives him still to oppose these amendments.

I did not hear in what he said anything that answers the unanimous speeches around the House, which made two important points. The first is that women’s needs are different and special. As I said in my opening speech, that does not seem to me to be answered by the fact that there are different justice systems applicable to youths and to women. The second point is that this is about delivery. It is not just about a philosophy that says that we recognise those needs, or even that we identify them; it is about addressing those needs and bringing some drive to that effort. Those points were made powerfully by the noble and learned Lord, Lord Thomas of Cwmgiedd, the noble Lord, Lord Macdonald of River Glaven, and many others. The question put to the Minister by the noble Lord, Lord Pannick, as to what it is that the Government do not want delivered, was not answered by the Minister saying that the Government want to see this delivered, unless they are prepared to do something to achieve that delivery.

I am grateful for the support of the noble Baroness, Lady Chapman, whose speech can perhaps be summarised by her question: so far, has it been done? The answer is no. Delivery has not been achieved. We believe—the speeches from around the House show that noble Lords also believe this—that a women’s justice board is needed to achieve that delivery. For that reason, and in the hope that sufficient Members from the noble Baroness’s party will support her and us on this issue, I wish to test the opinion of the House.

Police, Crime, Sentencing and Courts Bill

Lord Marks of Henley-on-Thames Excerpts

Lords Hansard - Part 2 & Lords Hansard - part two & Report stage
Monday 10th January 2022 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I too support the amendment of the noble Lord, Lord Pannick. Strongly though I support it and absurd though I too think it is to allow for some possibility of a jury trial with the jury sitting otherwise than in the actual courtroom, I had no intention of speaking tonight until I learned that my noble and learned friend Lord Judge could not. As I seem to be the last judge standing this evening and feel so strongly about this, it seems that I should say a word. But I urge all of your Lordships to recognise that if my noble and learned friend had been speaking, he would have said the little I propose to say so much more tellingly and convincingly that the House really ought to add enormous weight to it.

All I say is that the whole value of a jury, sacrosanct in our law of course, is that they are there and part of the atmosphere. They watch the whole thing unfolding, see the witnesses and sense the entire development of the arguments as they emerge. My noble friend Lord Carlile made a number of these points, as the noble Lord, Lord Macdonald, has just done. The whole aura of the process and the fact that the jury recognise in the courtroom that they are, for the first time, having to apply themselves to this critical question—is this man or woman guilty or not guilty?—is lost and dissipated if they are not there. I urge your Lordships not to provide for this suggested possibility, for who knows in what circumstances it would be? They can be only circumstances that do not justify having a separate jury.

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

My Lords, we agree with the noble Lord, Lord Ponsonby, on the amendments he moved or spoke to on proceedings involving children and health screening, and with the noble Lord, Lord Carlile. We support those amendments, but I will speak to Amendment 97CA from the noble Lord, Lord Pannick, on the use of live links in jury trials, to which I have put my name.

This amendment raises two important questions about the nature of juries and of jury trial. First, how important is it to the trial process that juries see and hear witnesses give their evidence live? Secondly, how important is it to the trial process that the relationship and balance between judge and jury is live rather than remote? On the first issue, the noble Lord, Lord Macdonald, and the noble and learned Lord, Lord Brown, made the point that jury trials depend, more than anything else, upon the ability of jurors to weigh up the evidence of witnesses. They have to assess two things: veracity, or whether the witness is trying to tell the truth, and accuracy, or whether he or she has got it right.

As others, including the noble Lords, Lord Pannick and Lord Carlile, have said, after nearly two years of the pandemic we have all become completely familiar with the process of remote discussion and meetings. None of us, I feel, would now argue that remoteness makes no difference. In this vital area of our national life, as the noble Baroness, Lady Bennett of Manor Castle, pointed out, we entrust decisions about the guilt or innocence of those charged with serious crimes to juries of 12 who listen to and weigh up the evidence of witnesses, and make decisions about truth or falsehood, reliability or inaccuracy, honesty or dishonesty, and intent, accident or misadventure. Those jurors will certainly consider objective evidence that has the same effect when seen or heard remotely as it has when seen or heard directly. But much of the evidence they will hear, and usually the most critical evidence in jury trial cases, has to be subjectively judged, as the noble Lord, Lord Macdonald, said. That is done by references to the witnesses’ demeanour, body language, response to cross-examination and emotional responses.

These are matters on which juries might initially and quite legitimately disagree. Their assessment—the different assessments of all 12 of them—will be the subject of detailed discussion during their deliberations and depend upon impressions. We would be undermining our jury system by depriving jurors of the opportunity, in the case that they decide, to share their experiences of the witnesses and the experiences that they have had live. I do not believe that undermining the jury trial in this way can possibly be justified.

On the second point about the presence of the judge, counsel and jury in the same place, the role of the judge and jury and the relationship between them is a delicate one. I agree with the noble Lord, Lord Pannick, that the judge’s position is to ensure that trials are conducted in a responsible and serious way. I also think there is considerable importance in that relationship that the independence of juries is maintained. A stock sentence that judges quite properly use when summing up is when they tell the jury, “It is a matter for you, members of the jury,” and it is.

However, for juries to make the decisions they are charged with making, they must not feel to be, seem to be or, still less, actually be at a disadvantage compared to the judge who has seen and heard and assessed the witnesses live. When the judge recounts a particular piece of evidence in summing up, juries must not be cowed or persuaded into accepting what they may perceive to be the judge’s view of the evidence. They must be able to say to each other: “He or she may have said that, but I did not believe that witness—did you see how scared they looked?” That is what jury independence means. Jury independence is fundamental to our system and why it is so important. For that reason, I completely support the amendment from the noble Lord, Lord Pannick.

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

My Lords, this group contains amendments covering the application of live links to children and vulnerable people as well as to remote juries. I will come to the remote juries point separately later.

First, to make sure that we are all on the same page, I remind the House that Clauses 168 and 169 do not mandate remote or video hearings. How a hearing is to be conducted is a matter for judicial decision on a case-by-case basis. These clauses ensure that, if appropriate, observers can watch a hearing taking place to ensure that the principle of open justice can be maintained.

Amendments 97A and 97B seek to prohibit remote observers from being present in all cases in which a child is among the parties. Amendment 97C similarly seeks to remove children from the application of Clause 170. I suggest both these amendments are unnecessary and would inhibit both the principle of open justice—which is a fundamental principle in this jurisdiction—and the principle of judicial discretion. It would inhibit the ability of courts to use audio and video technology where the court sees fit and when it is in the interests of justice to do so.

I turn first to Amendments 97A and 97B. The effect of these amendments would be that all such remote hearings would effectively have to be held in private, including, for example, any multiparty litigation in our civil courts or tribunals in which a single claimant—perhaps one of a number of claimants—is under 18. That would unnecessarily constrain the transparency of our justice system and impede the principle of open justice.

While I accept the sentiment that underpins the amendments, they are unnecessary because we have sufficient tried-and-tested legislation in place to safeguard the privacy of children in these proceedings. That is set out in Section 47(2) of the Children and Young Persons Act 1933. We also have existing procedure rules under which the court can hold any hearing in private in order

“to protect the interests of any child or protected party”.

Therefore, I suggest to the House that that statutory provision and the procedure rules provide sufficient protection to safeguard the privacy and well-being of young people in the justice system, whether the hearing takes place in-person or remotely.

Amendment 97C would prevent the court making a direction to enable any participant in a hearing to attend by live link where a child is party to proceedings. Again, it is important to protect the interests of children, but we have clear support and guidance in place which mandates the court to consider and have regard to the welfare of the child, to make sure that each child is fairly assessed and represented, is sufficiently supported, can understand what is happening, and is able to engage and participate in proceedings and be kept safe. That is set out in the Criminal Procedure Rules and criminal practice directions.

I recognise, as the noble Lord, Lord Carlile of Berriew, said, that, in the majority of cases, it may well be more appropriate for children to attend a hearing in person, and the Criminal Procedure Rules recognise this. But one must recognise that there may be situations where it is more beneficial for a child, whether as a witness or a defendant, to participate by live link; for example, to protect a child witness from having to be in court with the defendant. Clause 170, as drafted, gives the court that inherent flexibility.

I will come to Amendment 97D in a moment but let me first turn to Amendment 97CA, tabled by the noble Lord, Lord Pannick, which seeks to exclude juries from the provisions in Clause 170 that would otherwise allow a jury assembled together to take part in a trial through a live video link, where appropriate and where the court has decided that it would be in the interests of justice to do so. I will come to the detail of the amendment in a moment, but let us not lose sight of one important point. This amendment is designed to strengthen and support the jury system. It is designed to ensure that we can continue to hold jury trials in circumstances where it might otherwise be impossible, as we experienced for a certain time in this jurisdiction during the pandemic. I am pleased that we were one of the first jurisdictions in the world to get jury trials back up and running, but we could not do as many as we would normally because of the social distancing constraints.

Why are we so keen to maintain jury trials? The answer is simple and perhaps a little topical. The jury is a fundamental part of our criminal justice system. To adopt the words of the noble Lord, Lord Pannick, it is a cornerstone of our liberty. True it is that the cornerstone gets a little defaced with some graffiti from time to time, but it is, none the less, a cornerstone of which we should be proud.

The noble Baroness, Lady Bennett of Manor Castle, threw something of a gauntlet down to me. I am very happy to pick it up, briefly. Juries sometimes return verdicts that raise an eyebrow, but I know from bitter experience that it is not unknown for judicial decisions to trouble the eyebrows too. In a proper case, there is a procedure, once the jury has brought in its verdict, to ask the Court of Appeal to consider and determine specific points of law to assist in future cases without disturbing the actual jury verdict in the instant case.

If the noble Baroness wants to have a crack at my right honourable friend the Attorney-General, she can, but she cannot, I am afraid, stand up and have a crack at her while betraying fundamental ignorance of the underlying legal principles. Counsel in the case himself said that his arguments were “new and complex”. Those are precisely the points which would be suitable for reference under Section 36 of the Criminal Justice Act 1972, a provision with which I am sure the noble Baroness is very familiar. I am also sure that she has read the recent case in the ECHR of Handzhiyski v Bulgaria, decided on 6 April 2021, which discussed in terms whether the provisions of Article 10 of the ECHR did or did not apply to a charge of criminal damage.

I am very happy to respond on the glories of the jury system, but I respectfully suggest that, if the noble Baroness is going to make a point about the conduct of the Attorney-General, she looks at the underlying legal position first. There are certainly points in the Colston case which an Attorney-General might properly decide to, or not to, refer to the Court of Appeal. That is a matter for the Attorney-General.

Police, Crime, Sentencing and Courts Bill

Lord Marks of Henley-on-Thames Excerpts

Report stage
Wednesday 12th January 2022 Lords Chamber

Moved by

[Lord Marks of Henley-on-Thames]

104: After Clause 172, insert the following new Clause—
“Royal Commission on criminal sentencing
(1) Within six months of the passing of this Act, the Secretary of State must establish a Royal Commission to carry out a full review of criminal sentencing.(2) In particular the Commission must make recommendations on—(a) how to reduce the prison population;(b) how to reduce violence and overcrowding in prisons;(c) addressing the particular needs of young people in custody;(d) addressing the particular needs of women in custody;(e) how to ensure that sentencing for offences is focussed upon reform and rehabilitation of offenders and reducing reoffending;(f) how to reduce the over-representation of people from Black, Asian and minority ethnic backgrounds in prison;(g) the imposition and management of non-custodial sentences; and(h) the abolition of some mandatory or minimum prison sentences.”Member’s explanatory statement
This amendment would establish a Royal Commission to review criminal sentencing.

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

My Lords, this amendment seeks the establishment of a royal commission to carry out a full review of criminal sentencing. The urgent need for such a review arises in particular because this Bill continues and worsens an alarming trend towards sending offenders to prison for ever-longer periods. These Benches have consistently argued that we need to reduce the prison population, not increase it. This country imprisons more people than any other in western Europe, without any evidence that there is more criminality here than elsewhere or that prison works.

As has been said repeatedly in our debates, we have seen our prison estate fall into disgraceful disrepair. Gross overcrowding is standard and, although the Government are committed to providing more new prison places, the increase in prisoner numbers to be expected from longer prison sentences threatens to use up all that extra space. In any case, the new space will not become available for some time. Meanwhile, the overcrowding and squalor get worse.

Understaffing means that prisoners are stuck in their overcrowded cells for very long periods, bored, fractious and angry without relief. Even though recruitment levels aim to increase staffing, it is by nowhere near enough to do more than relieve a little of the pressure, without improving the overall standards of welfare in our prisons. All this breeds violence, of which we have seen appalling levels over recent years. Lack of opportunities for education, work and recreation, attributable at least in part to the lack of staff to deliver them, has made all this worse, so there has been little progress on rehabilitation.

Against this background, the Bill will introduce minimum sentences, longer sentences and later release dates. All this will fuel sentence inflation because, unsurprisingly, sentences will seek to ensure some kind of fairness in comparisons between them across the board, causing them to rise generally. The Bill will have a far more far-reaching effect on sentences than even its draconian provisions suggest. Yet, in our consideration of the Bill to date, we have been unable to deflect the Government from this unswerving and one-sided course. There is little in the Bill about community sentences, rehabilitation, the role of the probation services, or keeping people out of the criminal justice system or altogether out of custody. That is why we need an overall review of sentencing: to consider the topics mentioned in proposed new subsection (2) in the amendment.

So far, I have concentrated on reducing the prison population and reducing violence and overcrowding in prisons, but the other topics crying out for review include: addressing the needs of young people and women in custody; reducing the effect of what is undoubtedly an in-built discrimination against people of minority-ethnic backgrounds within the criminal justice system; keeping people generally out of custody where possible; and refocusing custodial sentences on rehabilitation and reform, not just keeping prisoners locked away from the public to address the perceived threat they present. This is not least because, in fact, the threat they present on release is exacerbated by the appalling conditions in which we incarcerate them. In short, we need to redress the manifest and politically driven imbalance inherent in this legislation.

The Government’s position and their answer to our criticisms were expressed in Committee. I am grateful to the Minister for meeting me last Friday and for his comprehensive email to me last weekend, setting out the Government’s perspective on this and other matters. The Government maintain that their intention in the Bill is to introduce a range of measures aimed at the most serious and dangerous offenders. However, they maintain that this is offset by an intention to focus, at the other end of the spectrum, on community sentencing measures aimed at diverting low-level offenders away from crime, addressing issues of mental health, drug and alcohol abuse, and making more use of electronic monitoring or problem-solving approaches.

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[Baroness Scott of Bybrook (Con)]

I am sorry, but the Minister had already sat down. We can only take a question if it is very short.

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

My Lords, in those circumstances I think that it is for me to respond. I do not know whether the Minister wishes to respond to any question—although there has not really been a question.

[Lord Faulks (Non-Afl)]

My Lords, I believe this is in order, because I did not suggest for a moment that it was for the Government to send people to prison or to make up their mind. Ultimately, the policy that is reflected in this amendment is something that a Government would have to decide upon.

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

My Lords, at the end of this interesting debate, I say first that I am very grateful to all who have spoken and to the noble Lord the Minister for his careful response. Two things strike me: first, this amendment enjoys overwhelming support and, secondly, there has been a distinct theme to the contributions to the debate from noble Lords from all around the House, expressed perhaps by the noble and learned Lord, Lord Thomas of Cwmgiedd, when he talked about a comprehensive and strategic approach. Others have talked about a holistic approach.

The aim has been to address the failures of the criminal sentencing system, as part of the criminal justice system, identified by, among others, the noble Lords, Lord Cormack and Lord Ponsonby. It is a rethink that is required—to use the expression of the noble Baroness, Lady Jones. Another important matter was identified by two dissimilar figures in general approach. The noble Lord, Lord Macdonald of River Glaven, talked about taking the political sting out of issues arising on sentencing. This was put in a similar way by the noble Baroness, Lady Fox of Buckley. I share the slight surprise of the noble Lord, Lord Cormack, at being told that she was a bleeding-heart liberal, but I take the point.

I do not intend the royal commission that we have described in this amendment to prejudge the issues. What we are calling for overwhelmingly is an evidence-based approach to sentencing, rather than a politically based approach or one that simply responds to public opinion or the perception of public opinion. I completely agree with the noble Lord, Lord Faulks, that the question is not one where the Government are excluded from making decisions. The point about the royal commission is, as he put it, that the royal commission recommends and the Government then act on those recommendations. What distinguishes a royal commission, I suggest, is that its recommendations are widely seen by the public, the Government and the Opposition as authoritative. It is that quality of being authoritative that I believe gives the royal commission its weight.

It is a question not of outsourcing the decision-making process but of setting up a process to advise and direct the future. This Bill does none of that. It contains sentencing in its Short Title, yet it is piecemeal and bitty and lacks a philosophy. The Minister set out a philosophy that is two-sided, but only one of those sides is reflected in the Bill. We believe that a royal commission would address that, which is why I would like to see this amendment agreed. That said, however, what the noble Lord has said about the Royal Commission on Criminal Justice as a whole is of some encouragement, because I take criminal justice to include criminal sentencing. I hope I see him nod in agreement with that. I am waiting—he is not going to commit to the terms of reference, but it seems to me that that offers some hope for the future.

I am concerned about the use of the word “paused”. It should not be paused; it is urgent. If the Government take anything from this debate, I hope they will take the feeling around the House that this is an urgent matter requiring urgent attention and will revisit it. That said, and in the confidence that they will approach it in that way and that the royal commission will proceed, I beg leave to withdraw the amendment.

Amendment 104 withdrawn.

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[Lord Paddick (LD)]

My Lords, my noble friend Lord Marks of Henley-on-Thames is leading for us on this group, but I want to speak on Amendment 107C. I was commissioned by the then Commissioner of the Metropolitan Police, now the noble Lord, Lord Blair of Boughton, to conduct a review of rape investigation in the Metropolitan Police, working together with Professor Betsy Stanko OBE.

At that time, the Metropolitan Police had specialist rape investigation units. Their performance was mixed, but they were considerably better than the experiment in community policing that was being conducted in one part of London. Small teams of detectives were allocated to each part of the borough to investigate all crime there, including rape and serious sexual offences. In addition to being overwhelmed by large numbers of more minor criminal investigations, they lacked the experience and expertise of officers who specialise in rape and other sexual offences.

I know from practical experience on the ground within the police service that specialist rape and serious sexual offences units provide much better outcomes for the victims and survivors of these types of crime. I doubt that legislation such as this amendment can override the operational independence of chief constables, but the principle is right and the Home Secretary, the College of Policing Limited—we will come to that in an upcoming group—HMICFRS and police and crime commissioners should all exert pressure on chief constables to ensure that they are established.

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

My Lords, we support all the amendments in this group. First, I will consider Amendment 104B. As explained by the noble Lord, Lord Ponsonby, this amendment would authorise a special measures direction to enable videorecording of cross-examination of complainants in criminal proceedings for sexual offences or modern slavery offences, in order to enable their evidence to be given remotely.

This is a sensible measure for the protection of witnesses not only from alleged perpetrators but from the trauma of giving evidence in these difficult and painful cases. We have heard many times in debates on this Bill and on the Domestic Abuse Act how painful an ordeal giving evidence is likely to be. In the absence of a special measures direction, complainants who are witnesses have to give evidence before strangers, often in the presence of their assailants or exploiters and often under hostile questioning, to relive some of the most painful experiences of their lives. Nor should we forget how, in these cases, recording the evidence of complainants might well be the very best way of securing truthful and accurate evidence so that courts might be better placed to do justice than if they had to rely on the live oral evidence of very frightened and intimidated witnesses.

We also support Amendment 104C in the names of the noble Lord, Lord Ponsonby, and the noble Baroness, Lady Jones of Moulsecoomb, because we have heard that Section 41 applications, if granted, permit the most intrusive and personal questioning of complainants about their previous sexual history. Such questioning might sometimes legitimately be regarded by a court as necessary in the interests of justice, but even when that is the case it nevertheless involves a gross invasion of the privacy, the sense of decency and the perceived rights of the complainant. The noble Lord and the noble Baroness are entirely right to seek the protections for the complainant that the amendment involves: the right to take part in the application or not at her choice, because it is generally a woman’s choice; to be legally represented; and to have a right of appeal against a direction admitting questioning or evidence of previous sexual conduct.

These Section 41 applications and the fear of the questioning they involve have been a reason for the large numbers of sexual offences going unreported or unprosecuted, as complainants are not prepared to go through the hell of facing such cross-examination and they pull out of cases for fear of it. They should be entitled to significant legal protection, just as if they were parties, when such an important issue for their personal integrity is considered by the courts. The protections proposed in the amendment are fully justified.

Finally, we support Amendment 107C on rape and serious sexual offences units—the so-called RASSO units—for the reasons given by the noble Lord, Lord Ponsonby, on behalf of the noble Lord, Lord Coaker, and by my noble friend Lord Paddick. I will try not to repeat the points he made.

Historically, there has been a problem, which we should not seek to deny, in ensuring that police forces treat rape and serious sexual assault with the importance these offences merit. It might be that the situation has improved, and I have no doubt it has. In most forces, victims are treated sympathetically, with tact and care, and derive support from the officers handling their case. However, the public, and women in particular, still lack confidence in the treatment they are likely to and do receive from the police if they are victims of sexual assault. This is one of the factors again driving the low rate of reporting and prosecutions, and the high rate of the withdrawal of complaints. The noble Lord, Lord Ponsonby, gave us the figures, with which we have become familiar.

Specialist units are likely to concentrate expertise and experience of dealing with rape and serious sexual offences in the hands of those who really know about them. This amendment concentrates on the specialist training of the staff in such units. That is critical. Such units have the potential to improve the evidence-gathering process and ultimately, one would hope, the reporting and the prosecutions of offences and the conviction rates, which, as we know, are appallingly low.

All the amendments in this group identify serious issues and propose practical, worthwhile and achievable solutions. In respect of each of them, I suggest it would be helpful for the Government simply to accept them or to come back with alternatives to similar effect at Third Reading.

[Lord Wolfson of Tredegar (Con)]

My Lords, I recognise that behind all these amendments is a dedication to improving the way in which the criminal justice system handles sexual offences cases and supports victims. On both those points, that dedication is shared by the Government. It is absolutely right that we do as much as we can to support all victims, including those of sexual offences, and help bring to justice those guilty of those very serious crimes. I know that there is no disagreement between us on the need to continue to improve the victims’ experience of the criminal justice system, and of the important role that special measures, such as Section 28, can play in supporting victims and witnesses to provide their best evidence.

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

My Lords, the effect of Amendment 104D would be to increase the maximum sentence for criminal damage with intent to destroy life-saving equipment from 10 years’ imprisonment to life imprisonment. I listened very carefully to the noble Baroness, Lady Chapman of Darlington, and her harrowing accounts of the vandalising of life-saving equipment and the damage and consequences of that. I also listened to the noble Earl, Lord Attlee, and the noble Baroness, Lady Jones of Moulsecoomb, and it is very clearly necessary that the Government make it clear how they will respond to the issue of vandalising life-saving equipment.

The behaviour comprising the offence is extremely serious because it carries the risk that life will be endangered by the damage caused. However, if I may adopt a slightly lawyerly approach to the amendment, I question whether it is necessary. The scheme of the Criminal Damage Act, as amended, is that under Section 4 an offence of criminal damage generally carries a maximum sentence of 10 years. However, Section 1(2)(b) of that legislation states that where the offence is arson or, as stated, is committed by a person

“intending by the destruction or damage to endanger the life of another or being reckless as to whether the life of another would be thereby endangered”,

the maximum sentence is increased to life imprisonment. That is the combined effect of that subsection and subsection (4).

I understand that the intention of the noble Baroness in moving the amendment on behalf of the noble Lord, Lord Ponsonby, would be to cover criminal damage to life-saving equipment with the intention of endangering life. However, given that by Section 1(2)(b) the offence is committed where a person commits criminal damage recklessly as well as intentionally in relation to endangering life—which means where the offender deliberately takes a risk that the damage he causes may endanger the life of another—I cannot at the moment see that such behaviour does not cover intentionally destroying or damaging life-saving equipment without lawful excuse. Nor can I at the moment see how, in the absence of such an intention or recklessness as to life being endangered, a maximum sentence in excess of 10 years would be justified on normal principles.

Consequently, I await hearing from the Minister with interest. He may or may not accept the slightly lawyerly approach that I put, but I hope that he will give some reassurance about how the Government propose to respond to the problem of vandalising life-saving equipment.

[Lord Wolfson of Tredegar (Con)]

My Lords, this amendment was debated just a few weeks ago when the Government set out why we believed it was unnecessary, given the scope of the Criminal Damage Act 1971. I will come back in a moment to what the noble Lord, Lord Marks, called a lawyerly point.

However, it is right first to remind ourselves, as the noble Baroness, Lady Chapman, did, of the very real consequences of this sort of behaviour. On the death of Sam Haycock in Ulley reservoir, can one begin to imagine what his parents Simon and Gaynor went through and are, no doubt, continuing to go through? One only has to say it to try to grasp to enormity of that. The noble Lord, Lord Marks, used the word “harrowing”. That is spot on. This relates to the appalling behaviour of the people vandalise equipment, which results in the requirement of having to make a telephone call to get hold of a life ring, defibrillator or whatever life-saving equipment it happens to be.

I turn to the legal position, as I am afraid we have to, given that we are considering an amendment to a Bill. The noble Lord, Lord Marks, is correct. I explained that it is already an offence intentionally or recklessly to damage or destroy property, including life-saving equipment. Section 1(2) of the Criminal Damage Act 1971 makes a specific provision for an aggravated offence of criminal damage where the defendant intends to endanger life or is reckless about such endangerment. To that extent, it goes beyond the scope of the amendment, which relates only to intention and does not include recklessness. As the noble Lord said, that offence already attracts the possibility of life imprisonment.

Of course, I understand that part of the reason why it is proposed to add a specific offence is to put beyond doubt that the law will punish those who damage and destroy vital life-saving equipment, whether they intend to do so or are reckless as to the risk. The concern was raised in Committee that it is not well known that causing damage to life-saving equipment means that Section 1(2) of the Criminal Damage Act 1971 could be in play and therefore carry a potential life sentence. However, if the concern is that that is not well known, I would question whether it would make a real difference if this Bill were amended essentially to repeat that point of law. The ordinary citizen, particularly the people who carry out this appalling behaviour, is still as unlikely to understand or perhaps care about the consequences and penalties associated with the crime. Therefore, I suggest that the ultimate problem here is not a question of a gap in legislation or a lacuna in the criminal law but people knowing what the law is and bringing home to people the likely criminal consequences of their actions.

In response to my noble friend Lord Attlee, as I suggested in Committee, if the law is not enough of a deterrent, we must focus on those responsible for water safety, health and safety, and law enforcement to come together to find out what is not working and identify workable solutions that might include sign- posting more clearly on the equipment the consequences of damaging that equipment. That might be a way forward. However, I share with the noble Baroness, Lady Chapmen, that these are abhorrent acts of criminal damage that should be prosecuted. The sentence must fit the crime. There is a potential maximum sentence of life imprisonment.

The noble Baroness, Lady Jones, put the question: why are the Government making destroying statues a criminal offence if destroying life-saving equipment is not a criminal offence? The problem with that question is that destroying life-saving equipment is a criminal offence. So far as statues are concerned, the next instalment is due on Monday, so I will leave the matter for then.

However, so far as today is concerned, while sharing very much the sympathies behind the amendment, I invite the noble Baroness to withdraw it.

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[Baroness Kennedy of Cradley (Non-Afl)]

My Lords, I speak briefly in support of Amendments 104E and 104F, in the name of my noble friend Lord Ponsonby of Shulbrede. In doing so, I declare my interest as director of Generation Rent.

Predators online attempt to coerce men and women to exchange sex for a home by exploiting their financial vulnerabilities. They have used the economic effects of the pandemic as a marketing technique. This is already a crime, and it is not a new crime, but there has only ever been one charge for this offence, and that was in January last year. However, back in 2016, Shelter found that 8% of women had been offered a sexual arrangement. Two years later, its polling estimated that 250,000 women had been asked for sexual favours in exchange for free or discounted rent, and its more recent research showed that 30,000 women in the UK were propositioned with such an arrangement between the start of the pandemic in March 2020 and January 2021.

This is a crime that goes on, openly and explicitly, through adverts on online platforms. Despite the adverts being clear in their intention, they go unchecked, are placed without consequence and are largely ignored by law enforcement and the online platform providers. The fact that there has only ever been one charge for this crime shows how inadequate the law and CPS guidance are in this area.

The victims of this exploitation have been failed. As my noble friend said, for a victim to get justice, they need to be defined as a prostitute for a criminal case to progress, which is a huge deterrent that has to be changed. The online platforms—that is what I believe is meant by “publisher”—allow this crime to be facilitated, and they must have action taken against them. That is why I very much support the amendments tabled by my noble friend.

In closing, I pay tribute to the honourable Member for Hove in the other place for his campaigning on this issue, and the many journalists who have kept this issue on the agenda, including the team at ITV, whose research I understand helped to lead to the one charge for this crime that there has ever been. No one should ever be forced by coercion or circumstance to exchange sex for her home. There is a housing emergency in this country. It continues to hit new lows—so low that sexual predators can deliberately take advantage of people’s desperation to find a home. For me, Amendments 104E and 104F are an opportunity to protect some of the country’s most vulnerable renters.

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

My Lords, I shall be brief because we have a lot to get through. I should have preferred Amendments 140E and 104F, the sex-for-rent amendments and the facilitating amendments, to be rather more tightly drawn. I note that the points I made in Committee were taken by the noble Earl, Lord Attlee. However, I have been persuaded by re-reading the speech made in Committee by the noble Baroness, Lady Kennedy of Cradley, and what she said today, with her extensive experience as director of Generation Rent—that there is a serious need for criminal legislation to stop what is a particularly nasty form of predatory behaviour. I also took the points made by the noble Lord, Lord Pannick, on the interpretation of Amendment 140E, implicitly supported by the noble and learned Lord, Lord Hope, so we will support those amendments. We will also of course support the amendment calling for a review of the criminal law relating to exposure offences and spiking offences, for the reasons given by the noble Lord, Lord Ponsonby, and which we supported in Committee.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, as the noble Lord, Lord Ponsonby, explained, these amendments relate to three matters we debated in Committee: namely, whether there should be a bespoke offence to tackle so-called sex for rent and whether the police, prosecutors and courts are doing enough to tackle offences relating to spiking and exposure. If I may, I shall take each issue in turn.

Amendments 104E and 104F are intended to address the so-called sex-for-rent issue, whereby exploitative landlords, and others, require sexual relations in return for housing or accommodation. This is an abhorrent phenomenon, which takes advantage of very vulnerable people, as noble Lords have said, and it has no place in our society.

Under the Sexual Offences Act 2003, there are existing offences which may be used to prosecute this practice, including the Section 52 offence of causing or inciting prostitution for gain and the Section 53 offence of controlling prostitution for gain. Both offences carry a maximum penalty of seven years’ imprisonment. They can capture instances of sex for rent, depending on the circumstances of the individual case.

In 2019, the Crown Prosecution Service amended its guidance on prostitution and exploitation of prostitution to include specific reference to the availability of charges for offences under Sections 52 and 53, where there is evidence to support the existence of sex-for-rent arrangements. In January of last year, the CPS authorised the first charge for sex-for-rent allegations under Section 52. The individual against whom these allegations were made has pleaded guilty to two counts of inciting prostitution for gain. To better protect tenants from rogue landlords convicted of certain criminal offences, banning orders were introduced through the Housing and Planning Act 2016. A banning order prohibits named individuals engaging in letting and property management work. The Government have been clear that housing associations and local authorities should use these orders if needed. Action will be taken against landlords who exploit vulnerable people. This behaviour simply is not tolerated.

I thought I might say something about a victim having to identify as a prostitute for the Section 52 and 53 offences to be used. I must stress that anyone making a report to the police would benefit from the anonymity provisions in the Sexual Offences (Amendment) Act 1992. The Section 52 offence applies when an identified victim has been caused to engage in prostitution or incited to do so, whether the prostitution takes place or not. The Section 53 offence applies whether the victim has, on one or more occasions, provided sexual services to another person in return for financial gain.

Moving on to Amendment 104F, I definitely agree with the noble Lord, Lord Pannick, about the woolly terminology of “arranging an offence”, and the point made by the noble and learned Lord, Lord Hope of Craighead, about “publisher”, but on the amendment itself, the forthcoming online safety Bill will require companies to put in place systems and processes to remove certain types of illegal content as soon as they become aware of it.

I move on now to spiking, the subject of Amendment 114A. This would require the Secretary of State to review

“the prevalence of, and the response of the criminal justice system to, the offence of administering a substance with intent under section 61 of the Sexual Offences Act 2003”.

I share the concerns expressed by the noble Lord about this offence, particularly the recently reported phenomenon of spiking by needles. This is understandably causing considerable anxiety among young people, especially in our university towns and cities, but there is no need to create a statutory obligation on the Government to review the operation of Section 61 as this issue is already very much on the Government’s radar. Indeed, a statutory requirement setting out a specific agenda risks hindering the Government’s ability to respond flexibly to the problem.

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[Lord Hogan-Howe (CB)]

My Lords, I support the noble Baroness, Lady Coussins, as I have from the beginning, as a layman who does not understand an awful lot about interpreting standards but does understand the importance of evidential matters going through tribunals needing to be of a high standard.

What has confused me from the beginning—as I think the noble and learned Lord, Lord Hope, suggested —is that the Government’s response is that they do not prefer the standard that the noble Baroness, Lady Coussins, offers and that they therefore want to rely on the standards that are in the contract. However, it is not at all clear what that standard is, because the easiest response would be that the standard in the contract is far better than the standard she offers, but no one is saying that. There is clearly a differential standard for different acts; the Minister mentioned something of the order of a thousand different scenarios leading to different qualities of interpretation, but I am not sure that that would lead to a thousand different standards.

It is clear from the Metropolitan Police’s experience that, broadly, there is a split between face-to-face contact and other types, but the real split is whether the material interpreted is going to be evidential. Often, a person who is arrested needs to have a conversation with the charging sergeant about who they are and whether they need medical attention—all the common tactical things that people need to talk about—or the police may need to talk with a victim at the scene of a crime. That can be achieved by telephone. That immediate conversation has some value, of course, but not in the context of an evidential test. When it comes to an interview, a prosecution decision and, obviously, attendance in court, it is vital that that standard is of the highest level.

Therefore, I support the amendment of the noble Baroness, Lady Coussins, but if it cannot be achieved in this Bill, I think the proposal for an independent inquiry is a reasonable next step.

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

My Lords, I spoke at length on this amendment in Committee and attended the meeting with the noble Lord, Lord Pannick, the noble Baroness, Lady Coussins, and the right reverend Prelate the Bishop of Leeds, who also signed the amendment. It has led to a full and thorough response from the Minister, and we expect him to announce a full and independent review. If that is right, that is extremely welcome news. I join the noble Baroness, Lady Coussins, in saying that it would be extremely helpful to have an indication of the timescale of such a review—if that is to be announced—because of the imminence of the renewal of the contracts. It would also be extremely helpful for us to have an indication of how the independence of the review will be assured, because independence is a relatively flexible word, and it is an extremely important part of this.

For all the reasons given by the noble Lord, Lord Hogan-Howe, the standard of interpretation is incredibly important to the maintenance of justice where there are litigants, parties or witnesses for whom English is not their first language. We talked about the importance of having the undisguised and unchanged evidence of the witness before the court in an evidential case without the interpreter’s view of matters intervening. That calls for the very highest standards of quality and for any review to be completely independent.

[Lord Berkeley of Knighton (CB)]

My Lords, I too spoke in Committee, and I have been copied in on the very helpful response from the noble Lord, Lord Wolfson. I felt he was trying to embrace this important subject. To extend the point made by the noble and learned Lord, Lord Hope, a little, one has to understand that when people are in court, it is not just a question of interpretation; quite often, it is case of compassion and being able to communicate with a witness or a defendant. If there is a language barrier, those are the first things that tend to go out of the window.

Just to lower the conversation slightly, I mentioned in Committee an occasion on which the word “cow” was confused with the word “car”—a cow was observed travelling at 90 miles an hour.

I think it would be good to finish my brief contribution to this debate by repeating the explanatory statement of the noble Baroness:

“This amendment would establish minimum standards for qualifications and experience for interpreters in courts and tribunals, along the lines of the Police Approved Interpreters Scheme.”


I find it very hard to see why the Government would not want to embrace that.

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

My Lords, we welcome the Government’s decision to accept the force of the amendment pursued by the noble Baroness, Lady Hayman, and supported by the noble Lord, Lord Pannick, to outlaw this unpleasant practice and introduce this amendment.

Over recent years, we have achieved considerable progress in the area of taking, procuring or disclosing what I would generically call voyeuristic images. Revenge porn was outlawed under the Criminal Justice and Courts Act 2015, and this was finally extended to threats to disclose intimate images in the Domestic Abuse Act last year. The unpleasant practice of upskirting was outlawed by the Voyeurism (Offences) Act in 2019.

Recording images of breastfeeding mothers is another example of voyeurism. It is easy to forget, certainly when the practice is made light of, that this is demeaning, embarrassing and humiliating for a breastfeeding mother. It is also frightening, because the mother is in a uniquely vulnerable position. A mother who is breastfeeding, if she is being photographed, is left in the entirely invidious position that she can either stop, in which case she has to close or adjust her clothing, giving more subjects to the photographer and depriving her infant of food, or go on and continue the agony of being photographed. That is a horrible position for a mother to be in.

We agree that this is a serious issue. These amendments are directed at an arrogant and frankly misogynistic practice. It is right to criminalise it for the protection of the women affected and we fully support the two amendments.

[Baroness Chapman of Darlington (Lab)]

We wholeheartedly welcome this, and we welcome how the Minister can laugh at himself and bring good humour to this. I think it is okay to have a sense of humour about this issue; what matters is that we are finally dealing with it. This really is important. Encouragingly, breastfeeding rates are improving in this country; over 80% of women start to breastfeed their baby when they are born, but the rates fall quite dramatically, with around 25% continuing at six weeks. There are lots of reasons for that, but one of them is about feeling uncomfortable breastfeeding in public. We should be doing everything we can to normalise breastfeeding and make breastfeeding mothers feel welcome and supported, wherever and however they choose to feed their babies.

There are two amendments in this grouping: one is the government amendment, which we completely support, and there is also the issue about needing to show intent for sexual gratification or humiliation. It was thoughtful of the Government to include that word, and I just want assurance that the perception of humiliation that ought to matter is that of the woman breastfeeding and being photographed. That ought to be sufficient to prove that there was an intent to humiliate. I would welcome some clarification from the Minister on that point.

We warmly welcome this measure. Breastfeeding women will be very pleased that the Government have come to a place where they see things in the way that they do.

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[Lord Russell of Liverpool (CB)]

My Lords, I thank the Minister for what he has just said and for the actions he has taken. I thank his colleague in the other place, Victoria Atkins, for having given the original commitment, and I thank the noble and learned Lord, Lord Stewart, who responded in a very positive way to the amendment from the noble Baroness, Lady Newlove, in Committee.

I also particularly thank Yvette Cooper in another place because the beginning of this was when one of her constituents came to her who had suffered an assault and had been timed out. That was really the first time that Yvette Cooper had come across this; it was one of those problems that was hidden in plain sight. It took a series of freedom of information requests to try to get the necessary information to understand the nature of the problem and, indeed, the scale of it. If this was not a government amendment and we were still trying to persuade the Government, I would have stood up to say, “I do not rise to speak briefly, because I am going to make 12,982 different points”, as that is the number of cases of alleged common assault that were timed out within a five-year period. That was revealed by the freedom of information requests, albeit only 70% of the police forces that received the FoI requests actually bothered to respond, so that number is probably an underestimate.

I am extremely grateful for this. The noble Baroness, Lady Newlove, would have been here, but she was sitting at the back earlier, doing her impression of the young noble Lord, Lord Young of Graffham, in his usual place, with a large cushion behind her, because her back has been giving her a lot of problems, so she has gone back to her hotel to rest it. On her behalf, I pay tribute to the work that she has done and thank her for having put it forward in Committee.

In a very helpful online call with the Minister, in which he explained what the Government were intending to do, we discussed how it is one thing to have laws, and laws which are well intended, but laws which are well intended, even forensic, are of little use if they are not applied properly and understood effectively. The issue we must focus on is when the police start responding in a different way to some of these allegations of assault. The ability to understand the exact nature of what is required and the ability to move very quickly to get it into a form where it is prosecutable within the six-month time limit is extremely important. I thank the Minister and the Government for this amendment, but can the Minister ensure that the combination of the Ministry of Justice, the Home Office, the College of Policing and the National Police Chiefs’ Council will keep a really close eye on the enactment of this new legislation, to ensure that what we hope and intend should happen is happening, and that if it is not proceeding as we hoped and intended, to keep that under review and, if necessary, adjust it? Again, I thank the Government very much for bringing this amendment forward.

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

My Lords, we add our thanks to the Minister to those of the noble Lord, Lord Russell of Liverpool, for his approach to changing the time limit for common assault prosecutions in the context of domestic abuse, and for engaging with us on this and other issues over the last few weeks.

It is clearly a sensible compromise for the six-month time limit to start from the first formal step in criminal proceedings of taking a witness statement or a formal recorded interview. We understand the reason for retaining the overall time limit of two years. It is a compromise in these cases between the need for finality and recognition that it frequently takes some time for victims—generally women in these cases—to report assaults formally, even though, as the noble Lord said, they may have some sort of informal interaction with the police at an earlier stage. We warmly support this amendment and thank the Government for coming to this view.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I was sitting in the City of Westminster magistrates’ court yesterday with our Bench chairman, Jane Smith, who was aware of this government concession. We had a very constructive discussion about how welcome it was. In Westminster magistrates’ court we have a specialist DA court, which is not that common among magistrates’ courts. While the noble Lord, Lord Russell, described the problem cleverly—in the best sense; I mean that as I say it—as being hidden in plain sight, it is a problem that we see regularly in that court. It shows that when the Government listen and move quickly, that does get wider recognition. This was certainly recognised and appreciated by my Bench chairman.

Police, Crime, Sentencing and Courts Bill

Lord Marks of Henley-on-Thames Excerpts

3rd reading
Tuesday 25th January 2022 Lords Chamber

[Lord Cashman (Lab)]

My Lords, as other noble Lords have said, the Bill has been much improved. I pay particular thanks to the noble Baroness, Lady Williams of Trafford, for working over six years with me and my friend, the noble Lord, Lord Lexden, in widening the pardons and the disregards for historical homosexual offences, including in the Armed Forces. It is truly historic when a state apologises for what it has done and reaches back over 500 years. It is the end of a six-year campaign that the noble Baroness, Lady Williams, has been an active part of. I cannot thank her and the Bill team enough, and indeed colleagues and the team in the Armed Forces. I also put on record our thanks to Professor Paul Johnson, the country’s leading expert on this. Finally, it might have been a six-year campaign, but some of us have campaigned for more than 33 years, not for ourselves but so that injustices can at last be put right.

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

My Lords, I will try not to repeat too much of what my noble friend Lord Paddick said. He pointed out—it is not a new point—that this has been a long and difficult Bill. I am bound to say that we must all hope that such a mammoth Bill, with such a wide range of diverse topics shoehorned into a single piece of legislation, will never be put before Parliament again. It has taken too many days, with too little time for the content involved and too much pressure, not just on MPs and Peers but on parliamentary staff, officials and those many organisations that seek to brief us about legislation. For us here, there have been too many early starts and too many late nights. It has been a very difficult experience.

None the less, I completely agree that the House has done its job well. We are very grateful to the ministerial team and their officials. On justice issues, I am, of course, particularly grateful to the noble Lord, Lord Wolfson, for the care, courtesy, approachability and engagement, not to say humour, that he has shown in our discussions. We have had some significant successes, from our point of view, on breastfeeding voyeurism and common assault in the context of domestic abuse. We have had some limited progress—my goodness, it is limited—on IPPs. That is clearly not the end of the story.

On Home Office issues, we are grateful to the noble Baroness, Lady Williams, for her care and the comprehensively courteous way she has dealt with the House, although I am bound to say that I share my noble friend Lord Paddick’s view that we have felt that she has not been able, on behalf of the Government, to make the concessions she perhaps might have liked to have made in some areas.

These Ministers illustrate the pressure there has been on all of us. In this context, I mention the tireless and efficient work of my noble friend Lord Paddick, who has borne the brunt of days and weeks of debate over many hours and days of sitting, and there have been many more days of preparation.

Before the Bill finally passes, we on these Benches regard it as largely profoundly regressive. On human rights issues, the House must expect Liberal Democrats and others in the Opposition to continue robustly to defend individual liberty in a way that we do not believe the Bill does. On justice, we will keep the pressure up for a humane sentencing system dedicated to rehabilitation and reform, combined with increasing use of community sentences. We will continue to work on women’s justice, where it seems that we are accepting very slow progress when we should be looking for dramatic improvement.

[Baroness Jones of Moulsecoomb (GP)]

I realise that I ought to be gracious, but I have hated almost every minute we spent on this Bill over the days, weeks and months. I deeply regret that it will pass. I wish it had not been presented in the first place and I wish we had not been forced to let it through, but it has been historic. One of the things that has been historic is the united opposition to some of its worst parts. That is something the House can be proud of. I look forward to many more days, weeks and months of arguing with the noble Baroness and the noble Lord on the Benches opposite.