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

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 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 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.

--- Later in debate ---

[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.

--- Later in debate ---

[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

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.

Criminal Trials: Intercept Evidence

Lord Marks of Henley-on-Thames Excerpts

Wednesday 9th June 2021 Lords Chamber

[Baroness Williams of Trafford (Con)]

The noble Baroness asks a very interesting question, which I am sure we will have debates on in the months and years to come, about the difference between the two. Fundamentally, there is a huge amount of other evidence that one would need to consider for an intercept warrant that makes it prohibitively costly, and therefore we just do not use it.

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

My Lords, following the question from the noble Baroness, Lady Wheatcroft, in the EncroChat case the Court of Appeal analysed the distinction between intercept evidence where actual transmission has been intercepted and evidence that has been stored and harvested following transmission. That distinction is arcane and inconsistent. Can the Minister explain the difference in principle? Since we agree on the need for a warrant system to authorise the use of intercept evidence, should we not legislate for one consistent requirement for warrants to intercept actual transmission and warrants to harvest intercept evidence post transmission?

[Baroness Williams of Trafford (Con)]

We would need a few hours to have that discussion so, thankfully, given that the Lord Speaker’s direction is to keep my answers brief, I will not go into that. As I have said, there are checks and balances within the criminal justice system, as the noble Lord well knows, that safeguard one route from being used in order to achieve another.

Domestic Abuse Bill

Lord Marks of Henley-on-Thames Excerpts

Report stage & Lords Hansard
Monday 8th March 2021 Lords Chamber

[Baroness Helic (Con) [V]]

My Lords, I thank the noble Lord, Lord Marks, for signing Amendment 44 and for his assistance in drafting it. It is an evolution of the one that I tabled in Committee, which received strong support from your Lordships’ House. It seeks to ensure that high-level training on domestic abuse, developed with experts, is mandatory for all judges and magistrates hearing family cases. I am grateful to my noble friend Lord Wolfson for meeting with me this morning, and for his acknowledgement that training is a crucial piece of the puzzle in tackling harm and improving family courts. This amendment will be a major contribution to improving the provision and quality of training. That will make our family courts work better and provide the protection, support and justice that victims and their children deserve.

It is a sorry fact that the courts are failing victims. Process and procedure can feel stacked against them. In the worst cases, the courts themselves can be subverted by abusers so that they serve not as a source of justice but as a tool of abuse. For example, one survivor has been taken to the family court by her abuser 27 times since 2015. The court has become the new venue for control.

To give another example, a woman who had been advised to leave her abusive partner by the police, a GP and the independent domestic violence adviser saw her case rushed through and extensive evidence of abuse overlooked by a judge who showed little evidence of awareness of domestic abuse. The words of that survivor should be in all our minds as we consider this Bill:

“We fled to be free from domestic abuse, yet now my ex-husband is allowed to continue his abuse legally through the family court.”


That is a terrible situation. Unfortunately, it is a common one that the Government are all too well aware of, given the harrowing evidence collected during their own harm panel review.

Many provisions in the Bill seek to address this problem. I particularly welcome the excellent progress on post-separation abuse, barring orders and the banning of cross-examination, but we need training to give those provisions practical, tangible value to ensure that they work on the ground to protect survivors and their children. It was a main recommendation of the harm panel, and it is critical to changing cultures and practices within the courts. Without those changes, these new measures will not be enough. They will provide false promises of hope to survivors, and new mechanisms are no help if domestic abuse continues to be overlooked, misunderstood and dismissed.

I know that my noble friend the Minister recognises the importance of training. The Government’s commitment to trialling improved guidance and training across the system is a welcome first step, but it is crucial that this amendment be accepted. Without the statutory imperative and government oversight, we are not providing survivors with any guarantee that work is under way to change the systemic cultural issues that have been identified.

By placing a statutory duty on the Lord Chancellor to publish a strategy and timetable for judicial training, we can ensure scrutiny, rigour and effectiveness, and we can guarantee that this is a commitment that outlasts individual Ministers and funding cycles. By specifying some of the material that the training must cover, we can ensure that it gives judges and magistrates a thorough grounding in all the different ways that domestic abuse can influence a court case or should be taken into account when considering child welfare. By involving the domestic abuse commissioner, we can ensure high-quality training, informed by up-to-date expert thinking that equips our judges and magistrates with the skill they need to wrestle with these difficult cases to provide protection and justice to survivors of abuse.

This amendment will strengthen the training provided; crucially, it will also make it mandatory. Over the course of this Bill, one of the things that we have heard is how insidious domestic abuse can be, how it can appear across all aspects of the family courts’ work and how it can be used to subvert them. This is why it is so important that any judge hearing a family case has a good knowledge of domestic abuse and how it can influence a case.

Domestic abuse must be taken into consideration in the course of a trial, when considering appropriate ways to proceed and when reaching a judgment. It is impossible to do that well without regular training that is consistent, comprehensive and created by true experts. If we do not embed these parameters in legislation, I am afraid that we will be here in a decade’s time, discussing the same ongoing issues in the courts. I dread to think how many people will have suffered during this time if we fail to act properly now.

Family cases are perhaps some of the most difficult and complex cases anywhere in our courts. In the great majority, judges act with wisdom, compassion and care. This amendment should not be seen as an attack on them; rather, it is about ensuring that they have the tools and skills that they need to do their job. Just as we expect judges to be versed in the law, so they should be versed in the facts and consequences of domestic abuse. We owe that to victims going through the courts and to the judges and magistrates themselves.

We have listened to the concerns raised by some noble Lords in Committee and adapted the amendment accordingly. It now guarantees a role in designing training for the Judicial College, the President of the Family Division and the chief executive of the Magistrates’ Association. They will play an important role in making sure that training is as effective as it can be. I hope that this more collaborative approach will attract even wider support than the original amendment.

This amendment is only a start; we should be thinking about training for all staff in the courts and all others, such as Cafcass employees and social workers. However, it is a crucial start: it is how we make the excellent provisions in the Bill a reality on the ground. It is how we will be able to tell survivors in full truth that we have taken real steps to protect them. I hope that my noble friend the Minister will think again and accept this amendment. However, I am prepared to test the opinion of the House.

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

My Lords, I am grateful to the noble Baroness, Lady Helic, for putting down and so persuasively opening this debate on Amendment 44, to which I will speak and have added my name. In Committee, we discussed judicial training at some length. It was interesting that there was general agreement that the amendment on judicial training was by far the most important of all the amendments in a raft of suggested measures seeking reform to procedure in the family courts.

I agree with the noble and learned Baroness, Lady Butler-Sloss, that the Judicial College provides first-class training for judges and magistrates, with its induction courses for those newly appointed or newly authorised to hear family cases and through continuing education, practical workshops and training materials, appraisal and mentoring. Nothing I say should be taken as a criticism of the quality of the work done by that college. However, one thread that ran through the debate in Committee was that, time and again, victims of domestic violence found their experiences of bringing cases in family courts to be somewhere between daunting and terrifying, They often found the courts and judges profoundly out of sympathy with the suffering of abuse victims.

Domestic Abuse Bill

Lord Marks of Henley-on-Thames Excerpts

Committee stage & Committee: 6th sitting (Hansard) & Committee: 6th sitting (Hansard): House of Lords
Wednesday 10th February 2021 Lords Chamber

[Lord Rooker (Lab) [V]]

My Lords, I begin by congratulating both my noble friend Lord Hunt and the noble Baroness, Lady Bertin, on the way that they introduced this group of amendments. The examples that they gave to illustrate their points were horrendous by any stretch of the imagination.

My noble friend Lord Hunt’s point about the need for a cultural change is significant. I have looked at some of the figures that have been published; I do not wish to repeat them in detail, but the numbers of people involved are phenomenal. The noble Baroness, Lady Brinton, also gave a very stark example. I understand and accept that the role of the police has changed in recent years; I know in particular that it is taken incredibly seriously by the part of the police family which with I am familiar in the West Midlands.

I do not want to repeat what others have said, but my central point relates to the points made by the noble Baroness, Lady Bertin, regarding Amendment 167; I agree entirely with their thrust and indeed support them. She mentioned that the overall costs were thought to be something like £66 billion and that there was a need for funding—probably £600 million. The point I want to make is that in order to have a strategic government approach, you must break the Whitehall silos.

This takes me back. I am not going back to the good old days, but I can remember when, in 1997, along with many others, I entered government after decades in opposition. We made an attempt, over a range of issues, to try to work across Whitehall, and it is not easy to break the silos. It has to be driven by ministerial commitment; it has to be known that the Minister at the top—in fact, the Prime Minister really, when you come down to it—has a bang-on, full-hearted commitment to something because that can be used to drive from the top. In both my first and second departments, when I was still in the House of Commons —first MAFF and then DSS; two very different departments—I can remember occasions when bright and, I will say, youngish civil servants moved from the department to go to work at some of the cross-departmental units that had been set up. One reason was that they saw the benefit of working in those units in terms of their career and promotion prospects and an enhanced role in the Civil Service—they were committed to the issues; this is not in any way a criticism of the individuals concerned—simply because of the drive to get cross-departmental work going and to break the silos. I realise that over the years, more particularly towards the latter end of the Labour Government years, things fell by the wayside. It does not mean that it cannot be rebuilt.

I would encourage the noble Baroness, Lady Bertin, and others, and the Ministers as well, to learn from experience. You do not have to reinvent the wheel. There are people around with experience—there are of course ex-heads of the Civil Service in your Lordships’ House who would fully take on board the points that I am making. You have to build a strategy that crosses the silos and breaks them down. If you do not do that, it will not work. That is what will filter to the cross-departmental work and indeed the cross-agency work outside government at other levels.

My central message, based on my own experience where I can see how things have worked in the past and indeed how they have not worked—I have examples I could use where it has not been successful—is on this issue of the silos and the cross-departmental working in Whitehall. The effect on civil servants is absolutely fundamental to success. I hope that this can be taken on board. I know that the Home Office Ministers have been very receptive on a range of legislation recently, but this has to permeate right across Whitehall.

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

My Lords, I am very grateful for the comprehensive opening by the noble Lord, Lord Hunt. He and every other noble Lord who has spoken have stressed the urgent need to overhaul and broaden our perpetrator strategy.

Amendment 164 from the noble Baroness, Lady Royall, would correct a very obvious deficiency in the Bill and in our current arrangements for protecting potential victims from known perpetrators who present serious risks to those they may prey on in future, notably women with whom they form new relationships, but sometimes men, when those new partners know little or nothing of their past offending and nothing of the risk they take by being with them.

However, it is not always new partners who may be threatened. Serial stalkers threaten victims they hardly know but who still stand to be harassed by them in life-destroying ways. We know how stalking offences, which may not cause physical harm, can cause long-lasting and sometimes permanent psychological damage. Happy, untroubled lives can easily be reduced to anxious existence only, with work, travel and lives at home overshadowed by ever-present fear.

The case for this amendment is as clear as could be. There can be no argument against including domestic abuse offenders and stalkers in the arrangements already in place under the 2003 Act for serious sexual and violent offenders, including MAPPA. But these arrangements badly need enhancing, as the noble Lord, Lord Hunt, and others have explained, by establishing MAPPA-plus.

A central part of the system is the violent and sex offender register, ViSOR, a national database that enables agencies to register offenders, to carry out risk assessments and keep them up to date, and to manage and keep track of offenders. It is important that the register is national because offenders travel. It has been far too easy in the past for offenders to leave one area and set up home in another, where they are unknown to the police and manage to commit appalling repeat offences, without warning lights ever flashing.

Domestic Abuse Bill

Lord Marks of Henley-on-Thames Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Monday 25th January 2021 Lords Chamber

[Lord Morris of Aberavon (Lab) [V]]

My Lords, I speak briefly on Amendments 6 and 7, which I support. Unfortunately, I was cut off from making further comments at Second Reading as I would have exceeded the time limit. I seek clarification on Clause 2(1), which I would have mentioned then. On the face of it, it appears to cover most, I hope all, the eventualities of which we can conceive. But I must express concern when the noble and learned Baroness, Lady Butler-Sloss—who knows more about these matters than anyone else in your Lordships’ House—seeks to amend the Bill, and I endorse the remarks of the noble Baroness, Lady McIntosh. They seek to add to the definition of “personally connected” in the Clause, with the words “guardian of the other” and

“lives in the same household as the child”.

An amendment that goes in the same direction adds the definition that one person is a “provider of care” for the other.

In my Second Reading speech, I would have referred to my recollection, as a very young man, a long time ago, of occasionally appearing in undefended divorce cases. To claim a divorce for your client, one had to satisfy the judge of, first, the grounds for the divorce, which did not usually take up much judicial time, and, secondly, the arrangements for the “child of the family”. That was taken seriously. The child of the family did not need a blood relationship. I found no difficulty with this extended relationship from the make-up of my own family.

Of course divorce law has changed considerably since that time, but on the face of it, if you couple the definition in Clause 2 and the words “parental responsibility”, having the same meaning as in Section 3 of the Children Act 1989, which I have reconsidered, it should be sufficiently all-embracing. Obviously the noble and learned Baroness, Lady Butler-Sloss, is concerned, and the Minister should dwell deeply and give us clarification.

The mischief we are trying to cover adequately is the definition of parent and child and the words “parental responsibility”. My short point is, having regard to the amendments proposed by the noble and learned Baroness, Lady Butler-Sloss and the noble Lord, Lord Rosser, is the Minister satisfied that Clause 2 is sufficiently all-embracing? I would be surprised if it is not, but I am not a family lawyer. I have been only a criminal lawyer for most of the past 40 years. I hope the Minister will give the Committee the assurances which the noble and learned Baroness, Lady Butler-Sloss, and all of us would like to have.

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

My Lords, I suspect most members of the public think of the typical case of domestic abuse as being that of an overbearing man who physically bullies his wife or partner and often the children of the household as well. This Bill enlarges that paradigm at Clause 1(3) by skilfully categorising the very different forms that abusive behaviour can take—all those forms, I suggest, being bullying behaviour. The Bill also rightly recognises that although most victims are women, a sizeable minority —about a third—are men, and the Bill is rightly gender-neutral for that reason.

However, I still believe, as I said at Second Reading, that in treating domestic abuse as limited by the definition of personal connection in Clause 2(1), the Bill has been too narrowly drawn so that it does not capture many of the relationships that give rise to abusive behaviour within a domestic context. I agree with other noble Lords who have spoken that by this narrow classification, we risk unnecessarily and unwisely excluding numbers of victims and potential victims who are no less vulnerable and no less exposed to domestic abuse than those who fall within the proposed definition. It follows that I do not accept the Government’s response in the House of Commons to an amendment on carers, when the Minister, Victoria Atkins, MP, said that the Government had,

“tried to guard against addressing all forms of exploitative behaviour in the Bill”—[Official Report, Commons, Domestic Abuse Bill Committee, 9/6/20; col. 109.]

and so dilute the understanding of domestic abuse as being focused around what she described as “a significant personal relationship”. I fully accept the sincerity of that approach, but it fails to grapple with the reality that domestic abuse happens far more widely than the paradigm cases would suggest. I therefore invite the Minister to move from that position.

With some caveats, I broadly support all the amendments in this group. I see no reason, for example, not to include in the Bill abusive behaviour by guardians towards their wards, as the noble and learned Baroness, Lady Butler-Sloss, has argued in support of Amendment 1, or abusive behaviour by carers of persons with disabilities towards the people for whom they are supposed to be caring. I also agree that it should not matter whether the care is paid or unpaid, nor whether the carer and the victim live in the same household. I also agree that the type of care involved should be broadly defined to include emotional or psychological care as well as physical care. I also strongly support Amendment 8 dealing with forced marriages, but I wonder whether its proposers and the Government may wish to consider the amendment further, certainly to ensure that it protects anyone at risk of being forced into marriage by the potential spouse rather than by someone else, as in the amendment as presently drafted.

Amendment 9, relating to abuse by domestic employers towards those in domestic servitude, makes reference, as I read it, particularly to those held in servitude contrary to the Modern Slavery Act or Article 4 of the European Convention on Human Rights. That is clearly what the noble and learned Baroness, Lady Butler-Sloss, intended. However, it may be that the definition should be clarified or enlarged, so as to ensure that it includes all those who are coerced into working in their employer’s households in inhumane conditions, for vastly excessive hours and for hopelessly inadequate wages—if indeed they are paid at all. These victims have often been brought here from abroad as members of their employer’s households, and they are often frightened that, outside those households, they have no way of staying here legally and no means of support.

--- Later in debate ---

[Lord Brooke of Alverthorpe (Lab) [V]]

My Lords, I am very grateful to have the opportunity to speak in support of the noble Baroness, Lady Finlay. I declare an interest as a member of the Commission on Alcohol Harm, which she chaired so admirably, where I saw much of the evidence on the difficulties and consequences that arise from an abuse of alcohol.

The Minister is probably not surprised that I am speaking on this, as we have had many exchanges, over many years. I want to speak in general terms about the direction of policy. These amendments are about trying to give the commissioner the tools, support and all that she might need to explore all the different avenues with which she has to work to find solutions to the problems that she faces. As the noble Baroness, Lady Finlay, said, it is not alcohol alone; it is one of several issues, but it is an important one.

Our feeling is that, when the Conservatives came to power—they have been in power for over a decade now—they started ambitiously, under David Cameron, in trying to address the problems arising from alcohol in the widest sense; here we are focusing particularly on abuse in the family. In many areas, regrettably, matters have deteriorated. There have been some improvements but, latterly, we have found more people being taken ill with alcohol and more people dying through obesity linked to alcohol, with Covid-19 and a range of other issues that have troubled us greatly.

I seek an assurance from the Minister that, notwithstanding all the campaigning that we have done and the many areas where we have failed to make progress, on this one the Government will take alcohol seriously as a factor closely linked to the problem. I say that having met the Minister last week to talk about perpetrators, when we were accompanied by the Minister who steered this through the Commons, who I did not feel was inclined to take alcohol as seriously as it ought to be. I am not saying this about the noble Baroness, Lady Williams. The view was, “Well, let’s not go down that avenue—most people drink responsibly, and we do not have problems with the overwhelming bulk of people drinking.” We are talking here of a problem that has deteriorated. There is more domestic abuse now and problems with alcohol in certain areas.

The devolved Administrations have done well and are ahead of us, but in England we have been slow to act. This opportunity, in the creation of the commissioner and the need to provide her with support, gives us a chance to get down into the detail. We have specialist advice, so she should get the best research and tools, so that the best possible outcomes flow forth, so that we see abuse reduce. It is inflicted mainly on women, but on men, children and older people too. I hope the Minister does not just gives us reassuring words but commits to giving the commissioner all the tools in this area, so that we start to see real change taking place.

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

My Lords, the Committee has every reason to be grateful to the noble Baroness, Lady Finlay, and the others who have tabled amendments in this group. We will all be grateful to the Government if they secure a positive response. It is not enough to thank the movers for the amendments, to acknowledge their importance and express concern, but not accept them. That would be an inadequate response. The symbiotic link between substance abuse, mental health issues and domestic abuse is so strong and all-pervading, as the noble Baroness has explained, that it needs to be specifically recognised in this legislation and met with positive statutory commitments to take every step that we can to ensure that the link is recognised and, as far as possible, addressed.

In May 2019, in a paper called the Dynamics of Domestic Abuse and Drug and Alcohol Dependency, published in the British Journal of Criminology, a group of distinguished academics drew together the literature on these issues in connection with the precursor of this Bill. They cited

“the findings of domestic homicide and serious case reviews … which reveal the pertinence of a ‘toxic trio’ of domestic abuse, mental health issues and drug and alcohol problems in cases where women or children are killed”,

and considered

“how substance use features in around half of intimate partners homicides in the United Kingdom”,

according to Home Office figures. They pointed out that the Government’s consultation paper

“Transforming the Response to Domestic Abuse followed suit, highlighting the ‘complex needs’ of those living with ‘drug and alcohol misuse, offending, mental illness and poverty’”.

The American Society of Addiction Medicine cites studies showing that victims and abusers are 11 times more likely to be involved in domestic violence incidents on days of heavy substance abuse, and that domestic abuse against women who are with men who drink alcohol is up to four times more likely than in relationships with men who do not drink or take drugs. World Health Organization figures suggest that 50% of men accused of killing their spouses were drunk at the time.

Research led by Professor Seena Fazel, professor of forensic psychiatry at Oxford University, and published by the Public Library of Science, tracked 140,000 men who had been clinically diagnosed with a drink or drug problem and analysed how many had been later arrested for domestic abuse offences. For those dependent on alcohol, the figure was six times higher than the average; for those with a drug problem, the figure was seven times the average. The study also found an increased risk of partner violence among men with mental illnesses and behavioural disorders, and an interrelationship between mental disorders—particularly ADHD, personality disorders and clinical depression—and the use of drugs as coping strategies, as well as with the perpetration of domestic violence, hence the description of the “toxic trio”.

No one is suggesting that substance abuse is or ever can be an excuse for domestic abuse. However, the relationship between the two is undeniable. It does, of course, work both ways, on victims as well as abusers. The British Association of Social Workers, in its extremely well-presented guide for social workers, Substance Use and Domestic Abuse, cites research demonstrating that victims of physical or sexual domestic abuse have an increased likelihood of alcohol or drug abuse, but it also points out that the substance abuse may predate the abusive relationship. It says this about the position of victims:

“For some victims of abuse, during times of turmoil, substances may be the only constant in their lives that they can depend on. Perpetrators may also use substances to control their victims, in such ways as limiting victim’s access to substances, demanding sex for substances, or using substances as an apology after an abusive episode. Among victims of abuse, the relationship with their partner may be intertwined with their relationship with substances, making separation more complex.”


Most of this work is relatively recent. Society as a whole is hidebound by outdated attitudes and prejudices around domestic abuse, and these are only now being dissipated. They extend to the judiciary—a matter currently under consideration by the Court of Appeal in a case that started last week—and these questions came under close consideration by the Ministry of Justice in its paper last June Assessing Risk of Harm to Children and Parents in Private Law Children Cases. The Bill represents a major step along that journey. I urge the Government to accept all these amendments to bring a sharp focus on what are undoubtedly complex and difficult inter-relationships, but ones which lie at the heart of tackling domestic abuse.

[Lord Hunt of Kings Heath (Lab) [V]]

My Lords, I am glad to have put my name to these amendments and I thank the noble Baroness, Lady Finlay, for outlining the complex and troubling relationship between alcohol and domestic abuse. I also fully endorse my noble friend Lord Brooke’s wise remarks. He has been a tireless campaigner on this for more than 20 years in your Lordships’ House. I am sure that he, like the noble Lord, Lord Marks, is looking for a strong response from the Government, as I am.

The deep cuts made to addiction services since 2013-14 mean that the estimated 8.4 million high-risk drinkers and the hundreds of additional people with an opiate addiction needing help could miss out on life-saving treatment. No wonder the Royal College of Psychiatrists is calling for the Government to reverse the cuts and enable local authorities to invest £374 million into adult services so that they can cope with the increased need for treatment.

Professor Julia Sinclair, chair of the Addictions Faculty of the Royal College of Psychiatrists, has pointed to Covid-19 showing

“just how stretched, under-resourced and ill-equipped addiction services are to treat the growing numbers of vulnerable people living with this complex illness.”

There are only five NHS in-patient units in the country and no resource anywhere in her region to admit people who are alcohol dependent with coexisting mental illness.

Professor Sir Ian Gilmore, chair of the Alcohol Health Alliance UK, has warned of the hidden alcohol harm crisis in this country. Before the pandemic, only one in five harmful and dependent drinkers got the help they needed; that proportion will now be significantly lower.

Before we even consider the link between alcohol and domestic abuse, we see that the services to help people suffering from substance and alcohol abuse have been severely limited and stretched. The noble Lord, Lord Marks, gave very graphic details indeed of a direct link between domestic abuse and substance abuse. As the noble Baroness, Lady Finlay, said, survivors of domestic abuse can use alcohol or drugs themselves. Research has shown that women who have experienced extensive physical and sexual violence are more likely to use alcohol or drugs harmfully, compared to women who have not experienced extensive abuse.

Despite the close relationship between domestic abuse and substance use, very few survivors access specialist support. This is due, in part, to the lack of services that respond to the multiple needs of people experiencing both domestic abuse and substance use. Research has shown that the lack of integrated or co-ordinated services can see survivors prioritising one need over another—in other words, domestic abuse or substance abuse. Yet even accessing either one service can prove very difficult. People can find themselves turned away from refuges when accessing domestic abuse support due to their substance use. Research in London found that only about a quarter of the refuges reviewed always or often accept women who use alcohol or other drugs.

Likewise, survivors can struggle to find alcohol treatment services that meet their needs and adequately consider their trauma. Women who have experience of violent male partners may be reluctant to engage in mixed-gender services, but women-only provision for substance users is available in fewer than half of local authorities in England and Wales.

It is of course important and welcome that the Bill puts an obligation on local authorities to provide support to victims of domestic abuse. For the reasons that I and other noble Lords have just outlined, it is vital that this support includes substance use, addictions and mental health support where necessary. I too hope the Government will be able to come back with a strong response.

Law Enforcement: Brexit Impacts

Lord Marks of Henley-on-Thames Excerpts

Wednesday 6th January 2021 Lords Chamber

[Baroness Williams of Trafford (Con)]

As the noble Baroness will know, we will not be seeking membership of Europol but the arrangements that we have in place will allow for the UK’s continued effective co-operation with Europol, including rapid exchange of operational information and data for mutual benefit—in particular, in the type of case that the noble Baroness outlined.

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

My Lords, the agreed surrender arrangements that replaced the European arrest warrant include a significant number of grounds for withholding surrender and an overall principle of proportionality. All issues raised by a requested person will have to be litigated in the executing state before a surrender decision can be made. Will the Government undertake an audit of the delays and costs involved in the new system arising from our withdrawing from the clear procedures for European arrest warrants?

[Baroness Williams of Trafford (Con)]

The noble Lord will be pleased to know that some safeguards regarding human rights would be right for the carrying out of justice. However, in terms of speed, we fully anticipate that the arrangements will be as fast and effective as those under the EAW.