Police, Crime, Sentencing and Courts Bill

Lord Paddick Excerpts

Lords Hansard - part one & Committee stage
Wednesday 3rd November 2021 Lords Chamber

Moved by

[Lord Paddick]

129: After Clause 54, insert the following new Clause—
“Misuse of Drugs Act 1971: power to search for possession of drugs for personal use
(1) The Misuse of Drugs Act 1971 is amended as follows.(2) In section 23 (powers to search and obtain evidence), after subsection (2) insert—“(2A) The constable conducting a search under subsection (2) must explain to the suspected person the grounds for suspicion and must record the explanation.(2B) Subsection (2) does not apply if the constable also has reasonable grounds to suspect that the drug is—(a) in the possession of the person for that person’s personal use only, or(b) in the vehicle or vessel for a person’s personal use only.””Member’s explanatory statement
This amendment would remove the power of the police to search a person or vehicle for possession of controlled drugs for personal use only.

[Lord Paddick (LD)]

My Lords, in moving Amendment 129, I will speak also to Amendment 276 in my name. It is unfortunate that these amendments were not grouped with amendments concerning the new violent crime prevention orders, as these, too, relate to police stop and search.

As well as being a police officer rising to the most senior levels in the Metropolitan Police over the course of more than 30 years, I worked in Brixton in south London between 1980 and 1982, in the 1990s, and again in the early 2000s. I was a police sergeant during the Brixton riots, a chief inspector and acting superintendent in the 1990s in Brixton, and I was the police commander in Lambeth, unusually in the rank of commander—the equivalent of assistant chief constable—in the early 2000s. In so saying, I am an expert on police stop and search. I realise that an expert is somebody who knows a little bit more about a subject than other people do, but I think I fall into that category, particularly in areas with high levels of visible minority communities and a poor track record of police community relations.

In 2001, Lambeth, with Brixton at its heart, had the highest street robbery rate in western Europe and high levels of burglary, and criminals were openly dealing crack cocaine and heroin on the streets. We were 100 police officers short of the 1,000 officers we were supposed to have in Lambeth. I recall an incident when I was a sergeant in 1982, the year after the Brixton riots, that clearly demonstrated that the community was concerned about street robbery, and not about possession of small amounts of cannabis for personal use. When we chased a handbag thief into an illegal gambling den, the youth was ejected from the premises into our waiting arms; when we chased someone who we thought had cannabis, the door was slammed in our faces.

In 2001, it was more than just community priorities, and that involved the arrest of one of my officers for allegedly taking cannabis from suspects on the street and keeping it himself. But one of the prime motivations for suggesting on the front page of London Evening Standard that the police should not arrest people for small amounts of cannabis for personal use was that there were far more important things for the police to spend their time on—both far more serious crimes that were at endemic levels and crimes that were a priority for the community. Clearly, possession of small amounts of cannabis was not one of them. When the “no arrest” policy was introduced, a public opinion survey found that well over 80% of people in Lambeth were in favour of the approach—slightly lower among the black community but still over 80%.

Following intense media debate and the submission of detailed data about how long it took officers to process someone arrested for cannabis—two officers over four hours each—plus the administrative work by police support staff and the CPS to prepare the case for court, the court time involved and the usual conditional discharge or small fine on conviction, this all persuaded the then commissioner to agree to a six-month pilot in Lambeth, where no adult was arrested for possession of small amounts of cannabis. These are the sorts of penalties courts are imposing today for possession of small amounts of class A drugs for personal use, if the case gets to court at all—many cases are dealt with by means of a police caution.

Despite false stories in newspapers, an independent assessment by the Metropolitan Police Authority of the pilot, which was extended to 12 months, showed reductions in all forms of serious crime, an increase in the amount of cannabis seized—as officers were able to quickly and easily deal with any that they found by seizing it and warning the person on the street—and an increase in the number of class A drug dealers arrested. Fears of an influx into the borough of those seeking cannabis proved to be the reverse of what actually happened.

Police and community priorities change. Now, in many areas of the country, knife crime is the priority, rather than street robbery. Noble Lords will quite rightly think that properly targeted stop and search is a powerful weapon in taking knives off the street, particularly if third-party information—community intelligence—points to those who are the knife carriers.

Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services has done some number-crunching on stop and search, and I am very grateful to Matt Parr —he might not be thanking me in a moment—who briefed Peers on the issue last week. Some 63% of police stop and search is for drugs; over 80% of those stop and searches are on suspicion of possession of small amounts of drugs for personal use. On average, only 9% of police stop and searches—less than one in 10—are intelligence-led; the proportion varies by police force between 23% in the best performing and 1% in the worst. These are HMICFRS figures. The top five police forces in the UK account for 90% of all stop and search carried out. Policy Exchange, a centre-right think tank, published a report a few weeks ago that found the Metropolitan Police had the highest rate of stop and search of any police force and the lowest rate for apprehending drug dealers.

Tackling knife crime is the Government’s priority, it is our priority, and it is the priority of many communities, but, looking at the facts as presented by HMICFRS, it is not police officers’ priority when it comes to stop and search. My Amendment 129 would not allow the police to stop and search someone on suspicion of personal possession of a small amount of a controlled drug for personal use. The police already cannot search for possession of illegal psychoactive substances that are not covered by the Misuse of Drugs Act; in fact, possession of small amounts of illegal psychoactive substances for personal use is not even an offence.

We are not talking about not tackling drug dealing—that is not covered by this amendment; indeed, there will be more police resources available to tackle drug dealing. We are not even talking about an untried and untested leap of faith. When we did not arrest people for simple possession of cannabis over a 12-month period in Lambeth, the police ended up concentrating on more important offences instead, more serious crimes and crimes that were a priority for the community.

We have too few police officers at this time, as I had in Lambeth when I was the police commander. We have too much serious crime, as I did when I was the police commander in Lambeth. We need to focus scarce police resources on what really matters; whatever that priority is, it is not possession of small amounts of drugs for personal use.

The key to effectively reducing serious violence is the police and communities working together, with communities providing information to the police about who is involved in serious violence, so that the police can concentrate their efforts, particularly stop and search, on those carrying and using knives. Policy Exchange believes that community policing is key. Other metropolitan forces, such as Merseyside, the West Midlands and West Yorkshire, do less stop and search and more community policing than London’s Metropolitan Police, and they are far more effective at arresting those involved in drug dealing.

Nothing is more damaging to police-community relations, trust and confidence in the police than poorly targeted stop and search. From standing in the middle of Brixton, being bombarded with bricks, paving slabs and petrol bombs, as I was in 1981, following a massive poorly targeted stop and search operation, I can tell noble Lords that that is the sort of damage it does. Visible minorities are four times more likely and black people nine times more likely to be stopped and searched by the police than white people, but they are no more likely to have something illegal in their possession than white people. That is when the police have to have reasonable grounds to stop and search people. Amendment 129 would not allow the police to stop and search for small amounts of controlled drugs for personal use, removing the cause of so much hostility between the police and communities, whose support and co-operation are vital in reducing serious violence.

That is not the only disproportionate form of stop and search. In 2010, the then Home Secretary, Theresa May, responding to a European Court of Human Rights judgment that suspicionless stop and search under Section 44 of the Terrorism Act was illegal, said:

“The first duty of Government is to protect the public. But that duty must never be used as a reason to ride roughshod over our civil liberties”,


adding that the then Government would not have appealed the judgment, even if they could. She said that the court found that the powers were

“drawn too broadly—at the time of their initial authorisation and when they are used”

and

“contain insufficient safeguards to protect civil liberties.”—[Official Report, Commons, 8/7/10; col. 540.]

That is very similar to the position we are in today with Section 60 of the Criminal Justice and Public Order Act, which still allows indiscriminate stop and search.

The purpose for which the police are using Section 60 goes far beyond what Parliament intended it to be used for. When this power was given to the police there was a recurring problem with rival gangs of football supporters arranging to meet at a specific time and place, arming themselves with weapons. Noble Lords will immediately see the point of a Section 60 power to search everyone in the area at the time rival gangs planned to meet, without the need for reasonable suspicion in these particular circumstances. This rarely, if ever, happens today.

Instead, if there has been a stabbing, the police will routinely impose a Section 60 order in the area surrounding the incident. That is not what it was intended for and of limited use in such circumstances. The first thing a knifeman will do after stabbing someone is dispose of the weapon and go to ground. Even if he is in the area, there is usually a description, from witnesses or CCTV, and other powers of stop and search based on reasonable suspicion can be used. I maintain that the Section 60 power is being misused and is ineffective.

The second problem with Section 60 is that indiscriminate stop and search causes untold damage to police-community relations. As I have said, people from minority-ethnic communities are four times more likely to be stopped and searched by the police and black people are nine times more likely. But when it comes to Section 60, where no reasonable suspicion is required, that figure rises to you being 18 times more likely to be stopped and searched by the police if you are black than if you are white. The overwhelming majority of these people have nothing on them to justify such a stop and search. Community intelligence is vital to make stop and search effective in tackling knife crime, but communities are losing trust and confidence in the police because too many innocent members of their communities are being stopped and searched using Section 60.

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[Baroness Williams of Trafford]

It is part of that operational independence of the police that they know what is best for their area; therefore, it might be relevant for police forces in a certain area not to have much occasion for the use of Section 60 stop and search.

[Lord Paddick (LD)]

My Lords, I am very grateful to the noble Baronesses, Lady Jones of Moulsecoomb and Lady Chakrabarti, for their support for these amendments. I agree with the noble Lord, Lord Ponsonby of Shulbrede, that the issue of drugs is very complex: it needs a complex approach and stop and search of this nature is not the way to go. When I suggested to the commissioner that we did not arrest people for cannabis in Lambeth, former MP Ann Widdecombe accused me of usurping the power of Parliament: she cannot accuse me of that now.

Turning to the response of the Minister, almost her whole argument around Amendment 129 was an argument against decriminalisation, yet this amendment does not call for the decriminalisation of personal possession of drugs. It is all about focusing the police on serious crime, rationing scarce police resources by focusing them on what is really important to communities and to the courts. We heard from the noble Lord, Lord Ponsonby, that he rarely saw anybody in front of him for possession, particularly of class B drugs, unless by chance—usually it is when the police find cannabis when they have arrested the person for something else. They are there for the substantive offence and they get charged for the cannabis as well, for example.

The noble Baroness talked about the harm caused by drugs. Why, then, are new psychoactive substances not controlled by the Misuse of Drugs Act not an offence? Why is personal possession of psychoactive substances not illegal under the Psychoactive Substances Act, if drugs cause so much harm? Why is alcohol not illegal when we look at the harm that alcohol causes? But we are not talking here about decriminalisation; we are talking about getting the police to focus on what is important. As far as Section 60 is concerned, I support stop and search. I have said how important stop and search—properly focused, acting on community intelligence and focusing on those who are suspected of carrying and using knives—is, and how important Section 60 is.

The Minister talked about the figures between 2019 and 2020 and the number of weapons that stop and search removed. This is not an argument about removing the power of the police to stop and search; it is about focusing intelligence-led stop and search on taking knives off the street to be even more effective. The figures that the noble Baroness gave about the number of weapons taken off the street, I assume, are not weapons found by using Section 60. If Section 60 searches were only 3% of all searches, and only 1%—one in a hundred—of Section 60 searches find a weapon, then the figures that the noble Baroness quoted cannot possibly be about Section 60. Why is she using figures about stop and search generally when the amendment she was addressing is about Section 60? It is a blunt instrument.

The noble Baroness is right; it has to be an inspector who authorises a Section 60. Until a couple of years ago, it was a superintendent who had to authorise a Section 60. That is why there has been a 2,800% increase in the number of times Section 60 orders are issued, and that is why Section 60 is so ineffective, with only one in 100 searches resulting in a weapon, and why it is so damaging to police-community relations, which are essential to tackling serious violence.

The noble Baroness said no one should be stopped and searched based on their race. You are 18 times more likely to be stopped and searched under Section 60 if you are black than if you are white. The two things do not add up. Of course nobody should be searched on the basis of their race, but the facts are that you are 18 times more likely to be stopped and searched if you are black than if you are white. That is why Section 60 is so damaging and so ineffective. That is why I brought this amendment but, in the meantime, I beg leave to withdraw Amendment 129.

Amendment 129 withdrawn.

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Moved by

[Lord Paddick]

130: After Clause 54, insert the following new Clause—
“Duty of candour
(1) The Secretary of State must within 12 months after this Act comes into force—(a) consult such persons as they consider appropriate, and(b) lay before both Houses of Parliament a report regarding the matters in subsection (2).(2) Those matters are means of achieving a culture of transparency in police forces and prosecuting authorities in England and Wales including a statutory duty of candour in their dealings with the victims of crime and the relatives of victims of crime.(3) The proposed duty is subject to any exemption required in the interests of national security.”Member’s explanatory statement
This amendment is based on a recommendation from the Report of the Daniel Morgan Independent Panel, to create a statutory duty of candour to be owed by law enforcement agencies to victims and their families.

[Lord Paddick (LD)]

There is no rest for the wicked. I rise to move Amendment 130 in my name and support Amendment 132A in the name of the noble Lord, Lord Rosser, which seeks to achieve similar things.

I must first declare an interest. When I was a deputy assistant commissioner in the Metropolitan Police—the equivalent of a deputy chief constable—I told the truth about a misleading statement made to the News of the World by the then commissioner of the Metropolitan Police about the shooting dead of the innocent Brazilian, Jean Charles de Menezes, by the police in 2005. Another senior officer leaked to the BBC the content of the statement I had made to the Independent Police Complaints Commission, which was investigating a complaint by the family of the deceased that the police had misled the public. In response, the Metropolitan Police issued a press release saying it knew the officer who had given evidence to the IPCC and what he said—what I said—was not true.

The deputy commissioner at the time tried to bully me into issuing a press statement saying that I was mistaken. Instead, I instructed solicitors to threaten to sue the Metropolitan Police if it did not retract its press statement which effectively called me a liar; I was not the easiest senior officer to manage, as noble Lords can probably work out. The Metropolitan Police withdrew the press release and paid my legal fees. The IPCC subsequently confirmed what I had told it was true, but the die was cast; I was subsequently forced out of the police service for telling the truth. I think it is important for the Committee to know where I am coming from when I talk about this issue.

My amendment is based on the recommendation in the Report of the Daniel Morgan Independent Panel to create

“a statutory duty of candour to be owed by … law enforcement agencies”

to victims and their families. The Daniel Morgan Independent Panel was announced by the former Home Secretary Theresa May on 10 May 2013 to address questions arising from and relating to police involvement in the murder of Daniel Morgan; the role played by police corruption in preventing those responsible for the murder being brought to justice; the failure to confront that corruption; the incidence of connections between private investigators, police officers and journalists; and the alleged corruption involved in the links between them.

It is not possible or necessary to go into all the findings of the independent panel, but I want to give two examples. First, the Metropolitan Police admitted on more than one occasion that police corruption had impacted on bringing those responsible for Daniel Morgan’s murder to justice, but when asked by the independent panel what that corruption was, and what impact it had had, the Metropolitan Police refused to provide an answer. This is even though Tim Godwin, the then acting commissioner of the Metropolitan Police, had made a formal admission of corruption on behalf of the Metropolitan Police at a meeting of the Metropolitan Police Authority. The Metropolitan Police’s response to the panel was, “You’ll have to ask him what he meant.”

Secondly, at every stage following the initial investigation of the murder, the Metropolitan Police maintained that the initial murder investigation had been carried out in accordance with the standards of murder investigation at that time. It was only seven years after the independent panel was formed that the Metropolitan Police made the panel aware of the existence of the London Homicide Manual, which set out the standards expected of murder investigations at the time of Daniel Morgan’s murder. This document proved that the initial investigation was not, in fact, carried out in accordance with the standards expected at the time. Such a lack of frankness, candour and honesty is a disgrace that these amendments seek to address.

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[Lord Paddick (LD)]

My Lords, I am very grateful to the noble Lord, Lord Rosser, for reminding us of the resilience and suffering of the Hillsborough victims’ families and of the Morgan family, and to the noble Baronesses, Lady Jones of Moulsecoomb and Lady Chakrabarti. I too prefer the noble Lord’s amendment; we tabled ours first. We need to address this issue.

The Minister said that this is not the first time that we have had a discussion about the Daniel Morgan Independent Panel report and the duty of candour, but it is the first time that we have had an opportunity to do something about it. It is, as the noble Lord, Lord Rosser, said, very disappointing that the Government did not take the opportunity of this Bill, which is so obviously the vehicle that should be used to get a statutory duty of candour on to the statute book. I hope the noble Lord will bring back his amendment on Report, so that we can divide the House on this very important issue, because this needs to happen. Wherever you look, this is urgently needed, whether we talk about Hillsborough, Daniel Morgan or what is happening in the Metropolitan Police at the moment—even yesterday, officers were convicted of offences.

The noble Lord, Lord Pannick, raised the very important point about support for officers. I am still regarded as a traitor by some in the police service because I told the truth about what happened after the shooting of Jean Charles de Menezes. The noble and learned Lord, Lord Thomas of Cwmgiedd, spoke powerfully about the need to protect victims, and the noble and learned Lord, Lord Hope of Craighead, gave his own worrying example of the need for better, greater candour on the behalf of the police.

We will come back to this on Report but, in the meantime, I beg leave to withdraw Amendment 130.

Amendment 130 withdrawn.

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[Lord Dholakia (LD)]

My Lords, the purpose of the amendment in my name is to remove Section 176 from the Anti-social Behaviour, Crime and Policing Act 2014. With regard to what is affectionately known as shoplifting, it is estimated by the British Retail Consortium that businesses lose £770 million a year to shop theft—and retail theft crimes are rising year on year. According to figures available from the Home Office, there was an overall increase in retail theft of 19.1% between 2014 and 2018, compared with an increase of 4.96% between 2010 and 2014. This is no surprise.

Section 176 of the Anti-social Behaviour, Crime and Policing Act 2014 allows anyone accused of shoplifting anything under £200 to plead guilty by post, as if they had been given a parking ticket. Use of this legislation is often cited as a cost-saving exercise, but the truth is that it does not save money. In fact, it does the opposite, as everyone loses, whether it is customers who end up paying higher prices or the retailers who lose their jobs when the business fails. But it is still being used, with Thames Valley Police for example informing local shops that they will not send out officers to deal with shoplifters who steal less than £100-worth of goods. This piece of legislation has, therefore, massively reduced the deterrent to theft and the punishment that an offender can expect, with many savvy criminals exploiting the situation to steal with virtual impunity.

Just one in 20 of all shoplifting offences are now prosecuted, while the number of cautions for such thefts have fallen from 40,000 to just 5,000 in a decade, according to figures obtained under the Freedom of Information Act. In addition, it is worth noting that it takes an average of 30 offences before an individual is convicted of a shop theft that results in a custodial situation. It is soul destroying for hard-working businesses to have their livelihood literally stolen away from them. The British Independent Retailers Association has come to see me on a number of occasions; its crime survey for 2021, just completed this month, shows that two-thirds of its members see most crimes against businesses valued at less than £200, while two-thirds of members also reported a disproportionate increase in the theft of goods worth less than £200 since this threshold was put in place in 2014. This shows that businesses are losing more and more each year to this type of crime, as it is currently being left unchecked.

John Barlow, a BIRA member in Nottingham, rightly pointed out that the police are basically telling kids, “Help yourselves”. Of course, there are more serious crimes that the police need to solve, but you cannot just give thieves a licence to steal. Shop theft is not a victimless crime; in fact, smaller independent retailers feel the impact of retail crime more acutely than larger retailers, which typically have better security systems, employ guards and security staff, sell larger orders and have better margins and economies of scale. Conversely, a small retailer operating on a typical margin of 8% would need to sell £2,500-worth of goods to make back £200 of stolen goods. In addition, they are often working alone, unable to call in back-up from another staff member, and left literally at the mercy of the perpetrator and the trauma of the event. How can this be right?

The removal of this legislation would send a signal to those who perpetrate shop theft: it is very clear that you will be prosecuted; your actions matter; and you will be held to account. It would show that this Government really hold our retailers, who have kept our country going through the pandemic, in high regard, and that the retailers can have confidence that justice will be served. I beg to move.

[Lord Paddick (LD)]

My Lords, we support my noble friend Lord Dholakia in wanting to protect small shopkeepers by calling on the police and CPS to take low-level shoplifting more seriously. Repeated low-level theft adds up and, as my noble friend has just said, when the profit margins are typically around only 8%, you need to sell a lot of goods to make up for those losses. This is particularly a problem if perpetrators do not believe that the police and courts will take effective action. I would welcome a response from the Minister to reassure small shopkeepers that the Government take this issue seriously—and that includes what action they will take in response to my noble friend’s amendment.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I am not sure that this requires a change in the law; I think the problem lies elsewhere. Section 176 should have been an improvement; low-value shoplifting offences should have been dealt with much more quickly and efficiently.

The Home Office guidance for implementing Section 176 is very clear. It sets out, for example, that repeat offenders, organised criminals and people going equipped should all be referred to the CPS for prosecution, rather than using the simplified procedures. I am interested to hear the Minister’s thoughts.

Something has gone wrong. I am going to guess that it is a consequence of 11 years of austerity inflicted on police forces. Rather than being a legal problem, it is a simple operational matter of the police not having the resources to deal with the problem—they cannot respond, investigate or prosecute. I think the solution lies in policing and not the law.