Police, Crime, Sentencing and Courts Bill

Lord Pannick Excerpts

2nd reading
Tuesday 14th September 2021 Lords Chamber

[Lord Pannick (CB)]

My Lords, I want to mention two specific matters. The first has already been addressed by the noble Lord, Lord Thomas of Gresford. Clause 169 will allow members of the jury to take part in a criminal trial remotely through the use of video and audio links, as long as all the members of the jury are together in the same place. I very much share the concerns expressed by the noble Lord: they have also been expressed by the Bar Council and the Law Society.

They expressed concerns because the success of a jury trial depends in large part on a good working relationship between the judge and the jury. Trust and confidence need to be built up. The jury needs to be attentive and mindful of its onerous responsibilities; the judge needs to watch the jury to ensure that members’ interests are protected and they are properly performing their responsibilities. People, of course, go to prison, sometimes for long periods of time, as a consequence of this procedure. Counsel, both prosecution and defence counsel, have to engage with the jury through advocacy and through their questions to witnesses. All of this is much more difficult to achieve through a video screen. The Lord Chief Justice, the noble and learned Lord, Lord Burnett, said last year, and I agree, that a remote jury trial

“would make the jury spectators rather than participants in a trial”.

Most of us lawyers and judges in this House will testify from our own experience in the past 18 months that a remote hearing is a far less effective means of communication than a live hearing in the courtroom. I expect that almost all Members of this House will have had the same experience participating in parliamentary proceedings over the past 18 months. I very much hope that the Government will think again on this very important subject.

The other matter I would like to mention today is an amendment to enhance the protection of women. It is an amendment to the Sexual Offences Act 2003, which the noble Baroness, Lady Hayman, will table for Committee and which I will support. I am speaking on it today because the noble Baroness cannot be in her place. I will do my best briefly to explain the issue.

The House will recall that the Voyeurism (Offences) Act 2019 amended the Sexual Offences Act. Essentially, it made it a criminal offence to take photographs up a person’s skirt or kilt—it is sexually neutral—when this is done in order to obtain sexual gratification or to cause humiliation, distress or alarm. In the debates on the current Bill in the House of Commons, an amendment was proposed to add a further voyeurism offence. The offence would be to take a photograph or video of a woman who is breastfeeding, provided that this is done to obtain sexual gratification or to cause humiliation, distress or alarm. Sadly, this is a mischief which occurs frequently, and it has understandably caused immense distress to many women victims, as has been explained by Stella Creasy MP, the moving force behind the amendment in the House of Commons. These women complain to the police; the police are sympathetic but explain, rightly, that there is nothing they can do about it.

In Committee in the House of Commons, the Minister, Victoria Atkins, for whom I have great admiration, agreed that this is

“unacceptable, creepy and disgusting behaviour”.—[Official Report, Commons, Police, Crime, Sentencing and Courts Bill Committee, 24/6/21; col. 748.]

Who could disagree with that? But on behalf of the Government, she opposed the amendment to make such conduct a criminal offence because the Government want to await a Law Commission report on the publication of intimate images on the internet.

I can see no good reason why we should not now amend the law to make this form of distressing and inexcusable conduct a criminal offence. I very much hope that the Government will think about this and accept the forthcoming amendment from the noble Baroness, Lady Hayman, in Committee or on Report.

Police, Crime, Sentencing and Courts Bill

Lord Pannick Excerpts

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

[Lord Pannick (CB)]

My Lords, I have added my name to these amendments. It is a great pleasure to follow the noble Lords, Lord Moylan and Lord Sandhurst. In the light of their comprehensive description of the purpose of these amendments, I can be brief.

Much of the data with which the amendments are concerned relates to freedom of expression. Views are expressed or opinions are stated which offend or annoy other people but do not constitute criminal offences. The views or opinions may relate to religion, transgender issues, Brexit or a whole range of other sensitive and controversial questions. Sadly, many people have lost the willingness to discuss and debate; to say, “I disagree with what you say but I will defend your right to say it.” In today’s world a more typical reaction to opinions with which you disagree is to take offence, to demand a safe space, or to complain that your identity has been challenged or that your truth has been denied. Even though no crime has been committed, the police are asked to record the grievance and to retain the data.

I agree with the noble Lords that for the police to have an unregulated power—that is what it is—to retain and use data about such exercises of free speech deters the vigorous debate and discussion on which a free society thrives. It may be appropriate, in some circumstances, for such data to be retained and to be used. None of us is disputing that. But that should be according to law, authorised by Parliament and not just by the discretion of police authorities which choose to apply, or not to apply, guidance from the College of Policing.

I hope that the Minister will consider these amendments constructively and that she will be able to give them the Government’s support, whether in a revised version or otherwise, on Report.

[Viscount Hailsham (Con)]

My Lords, I strongly support the proposed new clause and I will give it all the support I can. The arguments put forward by my noble friends are, frankly, unarguable against.

There are three propositions that I think are affronted by this notification of non-crime hate incidents. The first is the chilling effect on free speech. The noble Lord, Lord Pannick, illustrated that very clearly. One has to be assured of the right to express one’s views without the risk of having this notification made against one.

Secondly, one has to recognise that these are very long-standing notifications, which can have a seriously prejudicial impact on individuals. That is thoroughly undesirable, especially as the individual has no right of appeal or an effective way of challenging. Judicial review, for most people, is not an effective way of challenging.

Thirdly, there is the point made by all noble Lords who have spoken so far. There is no statutory guidance; it is local police policy which influences the way these notifications are made. That is inherently unjust, having regard to the impact that this could have.

Finally, I welcome very much that the regulations are to be made by the affirmative procedure. However, as I have said in this House and elsewhere on many occasions, while that is a good thing in the sense that the comments made by your Lordships and those in the other place can be heeded, we do not have the power to amend the statutory instrument. I have long argued that this House and Parliament in general should have the power to amend the contents of statutory instruments. This is a good example of where that would be beneficial.

Police, Crime, Sentencing and Courts Bill

Lord Pannick Excerpts

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

So I plead with the Minister, first, to think again about the statutory inquiry with powers of compulsion and, secondly, to look at my noble friend Lord Rosser’s amendment in particular, because it is not too difficult to create a statutory as well as professional duty of candour on the police—something like he has proposed. Parliamentary draftsmen will do even better, I am sure, and my noble friend has already done the thinking about the need to think about privacy, data protection and national security.

[Lord Pannick (CB)]

My Lords, I, too, support these amendments. The statutory duty of candour is vital not just to affect the culture of the police and enhance public confidence in policing but to give confidence to those police officers who face enormous internal pressures from their colleagues not to be candid. They need support; they need a statutory regime they can point to in order to justify to their colleagues what is required.

The noble Lord, Lord Rosser, quoted some of what the Home Secretary said in answering questions in the House of Commons on 15 June, and I will quote one other statement she made. She was specifically asked by Yvette Cooper about the duty of candour, and her response was that

“there is absolutely more to do here.”—[Official Report, Commons, 15/6/21; col. 132.]

I very much hope the Government will accept the amendment in the name of the noble Lord, Lord Rosser, but, if they do not, what more are they going to do in this area?

[Lord Thomas of Cwmgiedd (CB)]

I rise briefly to support both amendments. The amendment in the name of the noble Lord, Lord Paddick, looks at this from the position of the victim. It is, of course, right to acknowledge the huge progress that has been made over the last 20 or so years in improving the position of the victim—but we have not got to the end of the road. The important point of his amendment is that it gives further protection to the victim at two important stages: first, where things have gone wrong and there is an inquiry, and secondly and much more importantly, in the victim exercising the right of review where there has been a failure to prosecute. It seems to me, therefore, that the duty of candour is yet another step in putting the victim—as is so often said by politicians on both sides—at the heart of the criminal justice system.

The amendment in the name of the noble Lord, Lord Rosser, looks at this from a broader perspective, which encompasses the position of the defendant and the greater public interest. We should think of experiences over the years. One can go back, for example, to a problem that arose in Tiger Bay in Cardiff over 30 years ago, where the inquiry into the Lynette White murder investigation went on and on. One cannot help feeling that, if there had been a duty of candour, it would have brought that very damaging case to an end.

I say nothing about the undercover policing inquiry as it is still ongoing, but it seems that there is ample evidence that we need to enshrine this duty of candour to protect the position of the defendant and the wider public interest by making it absolutely clear that the police owe that duty—and they should be grateful to have that duty imposed on them, because we need to restore, above all, confidence in our constabularies.

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I thought: “That is so encouraging; we are really getting there.” But no. She then said that she would have to wait for the next part being put forward by the Law Commission. I know this House is full of lawyers. This House probably has many lawyers who sit on the commission—I do not know. Forgive me, but I think the commission does not always act at speed. What we really want is some speed on this, because we have a problem. We can sort this problem—or help to sort it. We have this opportunity, as the noble Baroness, Lady Hayman, said, and we should take it, because we need the next generation to have the best start to life, and we know it is in our hands, to some extent. So, I strongly support this amendment.

[Lord Pannick (CB)]

My Lords, despite being a lawyer, it is a great pleasure to follow three such excellent speeches. I have added my name to this amendment, in part to emphasise what is obvious—that this is a matter of concern not just to women who breastfeed but to men, particularly men who are fathers, husbands and fathers-in-law, all of whom are affected by this subject.

When the Minister replies, I think he will express two concerns about these amendments, unless he is prepared to accept them, which I hope he will. He might say there is a concern that Amendment 131 is too broadly drafted. I do not understand such concern, because the drafting is very simple. It ensures there is a criminal offence only where the woman concerned does not consent and—this is vital—the defendant photographs or videos the breastfeeding for the purpose of obtaining sexual gratification, or to cause humiliation, distress or alarm.

That is a very limited mischief. It is properly drafted, since it adopts in its definition the ingredients of the offence of upskirting, which is already on the statute book, so it is a confined mischief. There is no question of capturing someone who innocently takes a photograph, and, in the background, there happens to be a woman who is breastfeeding. However, as we are in Committee, if the Minister thinks that the drafting can be improved, I, and the other signatories to this amendment, I am sure, would be very happy to see an improved version.

The other concern, which I know that the Minister will express, and which has already been addressed, is that the Law Commission is due to report on the law relating to intimate image abuse. It had a consultation which closed in May. The report is awaited. We certainly will not see it this year. The Committee may be interested to know that it is a consultation paper that covers 423 pages of material, a wide range of subject matter and complex issues. After the commission reports, sometime next year, there is no possibility of any legislation being brought forward for months, and that is optimistic. Who knows when the Government may reach a conclusion on any of these topics, particularly the specific narrow topic that we are discussing today? Who knows—the Minister does not—when there will next be a legislative opportunity to bring forward proposals such as those promoted by the noble Baroness, Lady Hayman?

It is time to address this because the case for a change in the law on this specific subject is simply overwhelming for all the reasons that the Committee has heard. There is no question of delay here because the conduct is every day causing great distress to the victims. We already have the model legislation in the upskirting provisions that Parliament has approved, which have been enacted and which are working very well.

In July, this Government announced their intention to take steps to protect women from violence and harassment. The amendments tabled by the noble Baroness, Lady Hayman, provide an opportunity for the Government, at no financial cost, to take a small but important practical step.

[Earl Attlee (Con)]

My Lords, I support this Amendment and agree with every word that noble Lords have said. My strong advice to my noble friend the Minister, bearing in mind that this is a policing Bill, is to come quietly. The alternative is to have another 45 minutes on Report, lose a Division and get into ping-pong. It is much easier to agree in due course.

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[Lord Wolfson of Tredegar (Con)]

My Lords, my noble friend Lord Attlee indicated that I should come along quietly. I am not going to do that; however, I hope that I will come along realistically and clearly in setting out the Government’s position. There is no dispute in this Committee that the behaviour we are talking about is absolutely abominable and indefensible. I therefore appreciate why a proposed new clause on this distressing subject of breastfeeding voyeurism has been tabled for debate. I start by expressing my unequivocal support for the mothers who have experienced this sort of appalling behaviour.

As the noble and learned Lord, Lord Falconer, said, we have heard a number of really outstanding speeches, some of which were very personal in terms of people’s history and families. I respectfully endorse the point made by the noble Baronesses, Lady Hayman and Lady Brinton, that this is not just a matter of protecting privacy or preventing distress; it is also important because we want to promote the very real benefits of breastfeeding. I take all the points made in that regard on board; I also take on board the point made by the noble Baroness, Lady Jolly, on the bonding time—the quiet time, if I can put it that way—that breastfeeding provides. On whether breastfeeding also benefits fathers because we do not have to get up at night, on that I will—if, as a Minister in a UK Government, I am allowed to dip into a foreign legal system for a moment—plead the fifth amendment.

To pick up a point made by the noble Baroness, Lady Hayman, I assure the Committee that, depending on the specific circumstances, it may be possible—I underline “may” because I accept that it will not be possible in all circumstances—to capture this sort of disgusting behaviour under some existing offences, including public order offences and offences dealing with harassment and stalking, along with the common-law offence of outraging public decency. However, this is not a complete answer; I do not put it forward as such. We recognise that the law in this area is not always clear, and that consideration should be given to improving it. That is why we asked the Law Commission to review the law around the taking, making and sharing of intimate images without consent, to identify whether there are any gaps—or, rather, what the gaps are—in the scope of protection already offered to victims. The review looked specifically at voyeurism offences and non-consensual photography in public places, including whether the recording and sharing of images of breastfeeding should be included in the scope of “intimate” images for the purposes of any reformed criminal law.

However, a change in the law here will not be straightforward. I will explain why in a moment. With an amendment such as the one moved by the noble Baroness, there may be a variety of situations in which it is still not an offence to take a picture of a person breastfeeding. That is why the Law Commission’s review is looking into intent, the definition of “image” and other circumstances relevant to this issue. As the Committee is already aware, the Law Commission’s work has gone at some pace. It obviously has an important eye for detail; that is why it is there. It intends to publish its recommendations by the spring of next year, so we are certainly not trying to kick this ball into the long grass. We are proactively considering what more can be done to tackle this behaviour and protect mothers now, ahead of the Law Commission’s recommendations for reform of the law in this area.

However, I respectfully disagree with the noble Baroness, Lady Hayman, that this issue is clearly defined in her amendment. I want to pick up on the point made by the noble Lord, Lord Pannick, if I may; we have had the benefit of some discussions. A number of points look like drafting points but are not, because they really go to the question of the scope of the proposed amendment and what it is seeking to encompass. Let me give a couple of examples, without turning the Committee into a legislative drafting session. Here is example A; I will try to use the initials from the amendment. A takes a photo of his wife, partner or girlfriend on a beach in her bikini, intending to use that image for his own sexual gratification. Another woman, B, is on the same beach, breastfeeding her baby, and is unintentionally caught by A in the picture. I heard what the noble Lord, Lord Pannick, said, but I respectfully suggest that this would be caught by the proposed amendment. A would have no defence as, first, he intended the picture for sexual gratification and recorded the image for that purpose. Secondly, he would have no defence of consent by B because B did not consent. A would also not be able to have the second defence of reasonably believing that she was giving consent because he had no idea at all that she was in the picture.

That is one example, but this goes further than drafting. Let us say that A was aware that B was caught in the background of the photo but was not aware that she was breastfeeding. Again, A would not be able to say that B had consented or that he reasonably believed that she had consented. Further, would an image of someone breastfeeding that did not actually include the act of breastfeeding—for example, a photograph capturing only a breastfeeding mother’s face—be captured under this amendment? What parts of the body, if I can put it that way, would we require the image to capture? As the noble Baroness, Lady Brinton, explained, this is different from the upskirting offence because the law there condescends to particular parts of the body that must be captured in a photo. Would we wish to capture images taken of breastfeeding regardless of whether it is in a private, semi-private or public setting?

I underline to the Committee that I do not raise these matters as drafting points or to be difficult. On the contrary, it is because this issue is so important that we must get the nature, boundaries and scope of the offence absolutely correct.

[Lord Pannick (CB)]

Does the Minister accept that his second potential problem would easily be dealt with by a drafting amendment to make it clear that the offence relates to a photograph or video of a breast? It would not be difficult to draft that. In relation to his first concern, which, as I understood it, was that if someone takes a photo of their wife or girlfriend breastfeeding for the purpose of sexual gratification and there is some other woman in the background—oh, I am sorry, have I misunderstood?

[Lord Falconer of Thoroton (Lab)]

Before the Minister answers that question, does he not also agree that we have perhaps seven or eight weeks before we get to Report, so the pettifogging points he is making could plainly be dealt with if we all sat round a table and agreed a draft?

[Lord Wolfson of Tredegar (Con)]

In drafting legislation, the first thing we need to do is make sure that we agree on the nature and scope of the amendment. I have tried to make it clear that I am not putting these points forward as pettifogging points of drafting. There are important points underlining this about what we want the amendment to cover. I do not know whether the noble Lord, Lord Pannick, was about to rise again; should I give him an opportunity to do so?

[Lord Pannick (CB)]

It may be thought by the Committee that the first example that the Minister gave was somewhat esoteric and unlikely to occur in practice. The risk of such esoteric events occurring is more than outweighed by the actual mischief that this amendment seeks to address. In any event, the same objections—the noble and learned Lord, Lord Falconer, called them pettifogging; that is his word, but I understand why he said that—could well be raised in relation to upskirting, in that pictures could be taken in whose background there is some other unfortunate woman. Perhaps the Minister might wish to reconsider these matters. We would all be happy to sit round a table and agree a draft that meets these points.

[Earl Attlee (Con)]

My Lords, I have been in your Lordships’ House for nearly 30 years. I have seen plenty of examples where, eventually, the Government have given way on an issue and parliamentary draftsmen have been able to draft far more complex provisions than these.

Police, Crime, Sentencing and Courts Bill

Lord Pannick Excerpts

Lords Hansard - part one & Committee stage
Monday 8th November 2021 Lords Chamber

I have no personal interest in this matter. I do not live in any of the areas affected; I have no connection to any of the groups which have been lobbying for this change. But it bothers me greatly as I go about my business in London that our black cabs—which are synonymous with London around the world and an important part of our reputation for quality and high standards—are forever facing more restrictions while vehicles and drivers which too often are a disgrace to our reputation are allowed to operate without having to comply with any law, regulation or rule. I look forward to my noble friend’s response, and I beg to move.

[Lord Pannick (CB)]

My Lords, the noble Baroness has made a powerful speech, which I find entirely compelling. My only concern is that her amendments are far too modest. If the Private Member’s Bill does not proceed satisfactorily, I suggest that she brings forward on Report an amendment which makes it a criminal offence to operate such a vehicle in London without a licence.

[Lord Berkeley (Lab)]

My Lords, I am probably alone on this one: some years ago I went away from my wedding service in a pedicab in London, and I rather enjoyed it.

I understand where the noble Baroness is coming from, but I think the definition in this amendment will cause a few problems. It says that a pedicab is

“a pedal cycle, motor cycle or power-assisted cycle, or such a vehicle”—

I did not know that cycles were vehicles, but maybe that is right—

“in combination with a trailer, constructed or adapted for carrying one or more passengers.”

My daughter used to take her children to school sitting in a trailer on the back of a bicycle, and that would be covered by this amendment. I do not quite see why she should not continue to do that. It was not motor-assisted, but it could have been. This needs looking at.

I think what the noble Baroness is getting at is that she does not like the look of these things. I would agree—they do not look particularly nice. The biggest problem is that many are not insured. That is a serious problem. Whether they need controlling or licensing by TfL needs a bit of debate. The black cabs obviously do not like them because they take away business. Are we in the business of protecting black cabs because they look nicer than these pedicabs that go around with not just lights flashing but some pretty horrible music coming out of them sometimes? On the other hand, are we here to regulate music and pedicabs? I do not know. The key for me is that they should have third-party insurance at the very least. Whether their fares should be controlled is a debate that is probably down to TfL to decide. Secondly, who is going to enforce this?

The other type of “vehicle”, if you can call them that, are freight cycles, which are beginning to appear in the streets of cities, London included. Sometimes they have two wheels, sometimes three or four—I do not have a clue which—but they distribute freight to outlets in the city as an alternative to trucks and vehicles, which cause a lot of pollution if they are not electric. Do we want to prevent them going around? They might be plying for hire, and the customers would be moving freight, not passengers. Whether they should be insured is debatable, because cycles are not required to be insured at the moment, and I expect we will have a debate about scooters in a couple of years’ time. But it is questionable whether a freight cycle, with or without power assistance, should be covered by this. I suggest that it should not be. This goes back to the only issue on which I think I disagree with the noble Baroness, which is insurance, because they are carrying passengers for hire. If I am carrying my family or some friends as passengers in a trailer on the back of my bike, I do not see why I should have to be insured if I do not feel like it. I think that is the same as on a bicycle.

I hope the noble Baroness will consider these issues. If she comes back on Report with a changed amendment, she should confine it to things which really matter from the safety point of view, rather than widening it to freight, family trips or something else.

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[Baroness Randerson (LD)]

My Lords, as the noble and learned Lord explained very effectively, Clause 66 inserts a new Section 2C into the 1988 Act, introducing a new offence of causing serious injury by careless or inconsiderate driving. The offence is committed by driving

“without due care and attention, or without reasonable consideration for other”

road users. Serious injury is defined as physical harm amounting to grievous bodily harm under the terms of the Offences Against the Person Act 1861. As the noble and learned Lord set out, the proposed penalties are two years’ imprisonment and/or a fine on indictment and a maximum penalty on summary conviction of 12 months and/or a fine.

The noble and learned Lord, Lord Hope, and I are unashamedly having two stabs at this issue. Amendment 155 takes the narrow view, introducing a test for the words “causing serious injury”. This is needed because it will be an imprisonable offence. The Government have defined “serious injury” but not “causing”. Our amendment suggests a form of words which indicates that to be found guilty of this you have to have displayed blatant disregard for the normal rules of care on the road. It is important for us to remember that driving is the one day-to-day activity by which a law-abiding citizen can kill another law-abiding citizen through simple inattention. I expect most noble Lords are drivers and, if they search their hearts and memories, I am sure they can think of an incident in their driving history when they have done something careless—when they have failed, despite perhaps taking care, to notice a cyclist or another car. Usually that is a moment that passes without anything terrible happening, but sometimes there is an accident.

If we are going to move towards imprisoning motorists for being careless, we need to be extremely careful. Criminalising motorists is a dangerous direction. Most motorists involved in accidents which result in serious injury or death are stricken by an overwhelming sense of guilt. In many cases, it wrecks the rest of their life. Rather than needing imprisonment, they need to ensure that in future they are much better drivers. Why do we send people to prison? We send them to prison to protect society. It is not likely that we need to protect society from the normal careless driver. We need to send them to prison to punish them—to be punished for simple carelessness.

The suspicion must be that the Government are seeking to create a new offence to catch those motorists who are charged with, but not found guilty of, dangerous driving. For 20 years, I was a magistrate. It is, and was, normal for alternative charges to be brought: careless driving and dangerous driving. I well recall occasions when the CPS simply failed to prove dangerous driving for one reason or another. I believe we are in a dangerous position if we start creating new offences to cater for the failure of prosecutors to make their case. Just as there is a difference between murder and manslaughter, there is a clear difference between careless driving and dangerous driving. In opposing that the clause stand part, we are proposing that there is no need for this new offence. As an alternative, we offer Amendment 155, which provides much-needed clarity on the degree of carelessness that must be involved.

There is a tendency to a knee-jerk reliance on custodial sentences. Most drivers, even bad drivers, do not need prison to improve their behaviour. Prison costs the public purse massive amounts of money. It destroys marriages and families and the ability of the prisoner to get a job on release. It often destroys their mental health. Prisons are not called “universities of crime” for nothing; they create better criminals. Bad drivers need more appropriate sentences. Careless drivers need more appropriate sentences, such as driving bans, retraining, which is really important, community sentences, restorative justice or fines, but not prison, except in the most extreme and persistent cases.

[Lord Pannick (CB)]

My Lords, I have added my name to the suggestion that this clause should not stand part of the Bill. I agree entirely with what was said by my noble and learned friend Lord Hope and the noble Baroness, Lady Randerson, on the punishment of imprisonment. There is an important difference of principle between causing serious injury by dangerous driving and causing serious injury by careless or inconsiderate driving. The principle is that the offence of causing serious injury by careless or inconsiderate driving falls into the category of “There but for the grace of God, go I”. It is very difficult to see why the penalty of imprisonment should be appropriate when all the steps being taken in the criminal justice system are to recognise that we send far too many people to prison and that prison has, as the noble Baroness, Lady Randerson, eloquently said, very adverse consequences for the offender, their family and society generally. The Government need to present a most compelling justification for a proposal that more people should be sent to prison in circumstances such as this.

[Earl Attlee (Con)]

My Lords, I support everything that noble Lords have said so far. Unless the clause is significantly amended along the lines suggested, I could not possibly support it if it were taken to a Division.

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I hope I have not stirred the pot too much. I remember R v Caldwell and R v Cunningham from my university days. Now I know who to blame for the poor marks for the essay I wrote on it. I hope I have responded to the points made by the noble and learned Lord. I am happy to continue the discussion, but I hope that he will be able to withdraw. I see the noble Lord, Lord Pannick, moving.

[Lord Pannick (CB)]

With his enormous experience of various areas of the law, can the Minister think of any example of where a sentencing court has decided that it is appropriate to send someone to prison, whether in a health or safety context or in any other context, merely because of carelessness? I ask this out of genuine innocence and ignorance.

[Lord Wolfson of Tredegar (Con)]

I wonder whether health and safety is not, in fact, an example. This is not my area of the law, and I am reluctant to give examples from the Dispatch Box, but I think we have to balance the degree of culpability with the consequences. As the noble Lord, Lord Beith, said, and as the responses to the consultation showed, it is very difficult to look in the eye the family of somebody who has been killed through careless driving, where the standard has fallen below that of a competent driver—not far below; that is dangerous—and say that the most we can do is fine the driver.

[Lord Pannick (CB)]

I understand the Minister’s argument. My question is whether there are any actual, practical examples of people being given a prison term because of carelessness. Maybe the Minister does not know. I entirely understand that. I would be grateful if he could write to me with an answer.

[Lord Wolfson of Tredegar (Con)]

Of course, and I will write to the noble Lord with an answer. I just want to be clear what exam question he is setting me. I assume that he is excluding recklessness. He is putting that in a separate box from mere carelessness.

[Lord Pannick (CB)]

I am considering the proposed offence of carelessness. To be clear, my question is whether there are practical examples of sentencing courts sending people to prison for acts of carelessness. Maybe the noble and learned Lords, Lord Judge and Lord Hope, know the answer. I do not. I suggest it may be relevant.

[Lord Judge (CB)]

I would much rather the Minister answered that question.

Police, Crime, Sentencing and Courts Bill

Lord Pannick Excerpts

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

[Lord Macdonald of River Glaven (CB)]

My Lords, I hope that the Minister can acknowledge that this is one of those comparatively rare occasions when noble Lords from all parties and none and from across the House have come together in the face of overwhelming evidence that a great public policy, in this case a great criminal justice policy, has gone disastrously wrong. It is beyond argument that IPPs have resulted in periods of incarceration out of any reasonable proportion to the gravity of the original crimes for which they were imposed. That is wrong. It is beyond any reasonable argument that these sentences are beyond any proportion to the risk that continues to be represented by any of the offenders to the public. That is wrong. There is the strongest evidence before the Government that IPPs are observably responsible for persistent and continuing injustice. The noble Lord, Lord Hunt, spoke very movingly about the reality of those injustices for those who are suffering under them.

I declare an interest as president of the Howard League and in doing so repeat what a number of noble Lords have said about the contribution made by Frances Crook. She has been a monumental figure in criminal justice, which is better today for her work than it would have been without it. The Government now have an opportunity to make a startling improvement to our criminal justice arrangements by the simple expedience of doing away with IPPs in their entirety; I agree with the noble and learned Lord, Lord Garnier, in this respect. The evidence could not be clearer. I support all these amendments and urge the Government now, in the face of this overwhelming case, to act.

[Lord Pannick (CB)]

My Lords, I hope that when the Minister responds to this debate, he can put away the departmental brief and respond to two simple questions. The first is whether he accepts that the present system is unacceptable. The second, which the noble and learned Lord, Lord Judge, posed, is: what will the Government do about it? This is not a new problem. The Government have had years to think about the options and to consider what to do. The noble Lord is already a very distinguished Minister of Justice. Can he say what the Government will now do to address a manifest injustice?

[Lord Hogan-Howe (CB)]

My Lords, I have met a few of the people who these sentences are designed to control, and quite often they are terrifying. Some of the things that they have done are awful. However, the present situation is indefensible. It is unfair because, as the noble and learned Lord, Lord Judge, has said, they do not know how long they will be detained, and because many of them have been detained since before the law was changed. It is really trying to deal with the basic problem of dangerousness, which is very hard to define. Doctors cannot define the mental illness that they suffer from, as has been mentioned already. This should be addressed far more clearly.

There are only two ways forward. First, many of these amendments are talking about research in the future, but we need more research into the medical definition of the type of illness which we define as “dangerousness”, of people seeming likely to commit an offence in the future. This is not mentioned anywhere in the amendments. I recommend that there is good investment to be made there.

Secondly, what is presently indeterminate must be made determinate. I do not suppose that anyone has yet argued that all the people who are detained under these restrictions should immediately be emptied from the prisons on to the streets, but it is entirely possible to see a transfer of that risk either into the health element of prison control—Broadmoor or similar institutions—or a far better way of dealing with them within the community. To continue carrying the risk entirely within the prison estate in the numbers that are described is entirely wrong and I cannot see that it is defensible for this Government to continue doing so.

--- Later in debate ---

[Lord Dubs (Lab)]

My Lords, I shall speak to Amendment 213. My noble friend Lord Ponsonby was somewhat critical of it. I agree with what he is seeking to achieve in Amendment 212. Amendment 213 goes a little further and is a little more precise. If I may say so, I think it is a better amendment.

To clarify, this is not a blanket ban on short sentences; it is a presumption against short sentences. Previous Governments have supported this idea. The evidence is that short sentences do not lessen offending. They are mainly concerned with non-violent offences. They do not provide meaningful rehabilitation. They can have a disruptive effect on family life and relationships.

The statistics are quite awesome. According to data from the Ministry of Justice, between January 2020 and March 2021, 20,000 people went to prison to serve a sentence of six months or less—44% of the prison population. This was even more so for women during the same period. Prior to the pandemic, the figures were even starker.

As I have said, the majority of people serving sentences of six months or less are in prison for non-violent offences, such a theft and drug offences. These offences are often linked to underlying issues such as poverty, addiction, homelessness and poor mental health. We know that these people really should not be in prison at all. Prison does not help them. We also know that short sentences have proven to be less effective than community sentences in reducing offending. Community sentences include interventions such as drug, alcohol and mental health treatment. They do more to address the root causes of offending.

Short sentences disrupt family life and ties; they damage housing, employment and treatment programmes. They do not provide any meaningful rehabilitation. These sentences contribute to volatility shown in prison.

Short prison sentences have a harmful effect on women in particular, hampering relationships with their families and children. Over half of women in prison report being victims of domestic violence, which often contributes to the offence that led to the prison sentence. I have had some help from a great organisation called Revolving Doors, and I have a quotation from one of its members:

“Although I was in prison for a short time I felt traumatised by the whole experience. In fact, sending me to prison was just a waste of time and money. I was released with no explanation and no support. I found myself back in the violent relationship which exacerbated my addiction which led to further arrests and trauma.”


Another argument for a presumption against short sentences is the cost. Of course, that should not be the main thing; the main thing should be protecting society, penalising people who should be penalised and helping to reduce reoffending. However, cost does come into it. The annual cost per prison place in 2020 was £44,640, compared with £4,305 for a community order. It is quite a dramatic difference.

The public, according to surveys, understand why there should be a presumption against short prison sentences. Probably, there are people who say, “Send them in and keep them in longer—six months is too short”, but the public are quite sensible and understand what is going on. I can only refer to previous Ministers, David Gauke and Rory Stewart, who both said it was necessary to introduce the presumption against short sentences. I think we can manage to do that.

The amendment of my noble friend Lord Ponsonby, as I said, goes in the right direction, but it is not quite strong enough. This is such a simple measure—so simple that it is hardly worth spending time debating it. I am sure the Minister will accept it.

[Lord Pannick (CB)]

The noble Lord, Lord Dubs, asked: these amendments are so simple, why waste time debating them? Well, of course, the law already proceeds on the basis that these amendments propose. Section 230 of the Sentencing Code already says that the court must not pass a custodial sentence unless it is of the opinion that the offence was so serious that a fine or community sentence is not sufficient for the offence. Any court that passed a custodial sentence without stating the reasons for doing so would find that the sentence was overturned in the Court of Appeal. Any sentence in court that fails to consider and address the impact of a custodial sentence on a child or unborn child would not be upheld on appeal. So I entirely support these amendments, but I think we should be realistic about the current state of law.

[Lord Beith (LD)]

My Lords, I do not intend to fall into a bit of disagreement with the noble Lord, Lord Pannick, with whom I worked happily in the Constitution Committee, but the present state of the law has not really solved the problem, has it? Very large numbers of very short sentences are given, and the consequence is that prison places are used, costs ensue, and the least effective way of dealing with individuals seems to be the one that is chosen. If there is some way in which we can strengthen the presumption the sentencing guidelines already carry, that would be good. The amendment of the noble Lord, Lord Ponsonby, is a complicated alternative way of doing it, but it does appear that something needs to be done.

The argument often used for short sentences is that courts have a problem in dealing with persistent repeat offenders and persistent repeat breaches of conditions of community sentences. There is a popular myth that if offenders do not respond to other measures, a taste of prison will soon put them right. There is absolutely no evidence to support this principle. Indeed, all the evidence points the other way.

I used to chair the Justice Committee in the House of Commons, and that has had a continuing interest in this problem. Its report in 2018 recommended that the Government introduce a presumption against short prison sentences. The Government welcomed this and said they were exploring options. In a follow-up report, the Justice Committee noted the Government’s stated intentions to move away from short custodial sentences.

Police, Crime, Sentencing and Courts Bill

Lord Pannick Excerpts

Lords Hansard - Part 2 & Committee stage
Monday 15th November 2021 Lords Chamber

Too many things are going backwards: life expectancy is down; obesity is up; the weather is becoming more violent; and the world has still not shaken off the coronavirus. Let us not add to our woes by bringing down the curtain on the age of reason by replacing it with the age of bigoted fabulists. Will my noble friend assure the House that he will not let ideology trump facts and ensure that women are better protected?

[Lord Pannick (CB)]

My Lords, the noble Baroness’s speech ranged very broadly indeed. We are in fact debating a complex penal issue where we have a policy that addresses the matter very sensibly, as the noble Baroness, Lady Brinton, explained.

I will add just one point to this debate. It is not difficult to see the danger to people who were registered as male at birth but who are now registered under the Act as female if they were required to be placed in a male prison, as this amendment would require, irrespective of the particular circumstances of their case, as long as they are a sexual or violent offender. It should not need to be emphasised, but I will emphasise it because it is the fact, that many of these people have had hormone treatment, and some of them have had reconstructive surgery that has given them primary and sometimes secondary sexual characteristics of a physical nature. What do the proposers of the amendment think will happen to such people if the Home Office is obliged to place them in a male prison?

Of course we would all agree that, if there is an offender in custody for a suspected violent or sexual offence who is in possession of a gender recognition certificate and poses a risk to others in custody, then specific steps should be taken to isolate and deal with them. But that does not justify or require ignoring a gender recognition certificate in the way the amendment proposes.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, it has to be said that when I talk to members of the general public and tell them that it is MoJ policy to allow prisoners of a male sex to be housed according to their self-declared gender identity in a women’s prison, irrespective of whether they have taken any legal or medical steps to acquire their gender, that they do not need to have gone through any physical transformation and still retain male genitalia, which we have heard lots about already in this debate, and that they do not even need to have obtained a gender recognition certificate—they need just to declare that they are women and demand that they are moved to the women’s estate, and it is seriously considered—they are aghast. It falls under the category of, “Has the world gone mad?”

That common-sense response might not feel appropriate when discussing legislation, but in this instance it may help us to look at this issue in practical, real-life terms, not just in abstractions. That is why I welcome the amendment very strongly. Although it does not resolve all my concerns, I welcome its modest, narrow aim of removing the most egregious aspect of this situation: allowing male prisoners who identify as trans but have convictions of violence or sexual offences against women to live with women prisoners. There really is no point in the Government issuing strategies and grand words about violence against girls and women if the same Government have no qualms about letting rapists share the same confined living quarters as vulnerable women in prison who, let us be frank, cannot leave or escape because they are locked up by the state. This amendment’s focus is on convicted sex offenders and it is urgent that the Government take notice.

It is important to note that when gender-critical commentators and academics raise qualms about the general policy of housing transgender prisoners in the women’s estate, they are often dubbed transphobic and accused of holding a prejudiced view of all trans women as sexual predators, but this is a malign caricature. At this point I give a shout-out of solidarity to Professor Jo Phoenix, an esteemed and conscientious criminologist who has been harassed and traduced for raising such legitimate concerns.

Wherever one stands on the general issue, this amendment is specific and cannot be accused of implying that all natal men, however they identify, are a sexual threat to women, because that would not be true. We are talking only about convicted sex offenders and those guilty of violence. I still hope this probing amendment might encourage the Government to look more closely at a range of issues in this area. I particularly want the Government to consider whether the Ministry of Justice’s involvement over a period of time with the controversial lobbying group Stonewall, which has already been referred to by the noble Baroness, Lady Meyer, as with so many public bodies, may—just may—have led to the skewing of policies in a particular direction.

For example, I know how keen this Government are on data and statistics, but as Kate Coleman, the founder of Keep Prisons Single Sex, has noted—this just seems incredible to me—the MoJ admits that it does not know how many prisoners identify as trans because, with a gender recognition certificate, they are counted by their new legal gender. I am not sure how the noble Baroness, Lady Brinton, can be so sure of the statistics she quotes, because the tools designed to assess any threat posed by male prisoners who identify as trans women cannot be picked up accurately. If someone with a GRC attacks a female prisoner, it will be recorded as an assault by a woman on another woman.

I also want to query who is listened to in this discussion on what is obviously a clash of rights. In the course of the recent High Court ruling we have heard about, Lord Justice Holroyde outlined the need to balance

“the subjective concerns of women prisoners”

with

“the rights of transgender women in the prison system.”

This made it sound as though the women, the biological women, were all being overly subjective, and the transgender women had rights. Describing one side as subjective and the other with rights misses a crucial point, because that transgender woman has an identity that is not an objective fact but a subjective desire and then a declaration. Why are women prisoners’ subjective but rational concerns afforded less weight here?

When the High Court acknowledged that women prisoners may well be worried and “scared” about sharing prison accommodation with male-bodied prisoners, the court said that that fear was not enough to outweigh the desire of some male prisoners to be housed with women. I wonder: when did the prison estate, or indeed the law, allow its policies to be dictated by prisoners’ desires? I have worked with prisoners over a number of years, particularly with Debating Matters Beyond Bars. Many of the prisoners I have worked with have declared that they desire decent prison education. They desire retraining and better conditions. The prison authorities certainly did not accommodate their desires, so why are these desires accommodated when it comes to the trans issue?

Finally, I am keen that the Government look carefully, and use this probing amendment to do so, at how staff in prisons understand the issue of sex and gender in the context of training. The MoJ policy entitled The Care and Management of Individuals who are Transgender advises staff to complete an “eLearning module” on transgender identity. One of the training courses is named intersecting identities. I have looked at these, and it all rather terrifies me. It is one-sided, jargon-ridden and ideological. I hope this amendment might point the Government to raise and review the whole issue. For now, at least, a very modest amendment should be taken seriously if they really mean they care about protecting women from violent men.

Police, Crime, Sentencing and Courts Bill

Lord Pannick Excerpts

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

[Baroness Butler-Sloss (CB)]

My Lords, although we have equality—quite rightly—there is no doubt that women need to be dealt with differently from men in their situations of going to prison and in prisons. There is no reason not to be tough on crime, but there is every reason to follow these two admirable amendments from the noble Lord, Lord Marks of Henley-on-Thames. It is time that women’s very special situations were recognised, partly as the mothers of children—we have had some appalling stories of women in prison who are pregnant—but partly, as the noble Baroness, Lady Jones, just said, to stop them offending and to find the best way to deal with them. It may well be that prison is necessary for some of them, but it may well not be necessary for some of those who actually do go to prison if this new board were in place and could provide some of the services that are so admirable in the youth justice system. So I strongly support these two amendments.

[Lord Pannick (CB)]

My Lords, I add my support to these amendments. Will the Minister, when he comes to reply, agree that the application of the justice system to women poses especial challenges for everyone involved in the justice system, from the Secretary of State downwards? Does he agree that, at the moment, regrettably, there is a crisis of confidence as to how the criminal justice system in particular, but also the civil justice system, addresses the needs of women? Does he therefore accept, as has been suggested by previous speakers, that the creation of a women’s justice board would focus much-needed attention on these important topics?

[Earl Attlee (Con)]

My Lords, my role as a loyal government Back-Bencher is to help my noble friend the Minister, and I think I can do that best by strongly supporting these amendments.

--- Later in debate ---

[Earl Attlee (Con)]

My Lords, I oppose the Question that Clause 165 stand part of the Bill; I seek not to add but to remove something from the Bill. Section 9B of the Juries Act 1974 gives the judge the power to consider whether a disabled person can undertake their duties as a juror when there is doubt on the part of court officials. New Section 9C requires the judge to consider whether a British Sign Language interpreter would enable the juror to be effective. The rest of the clause is concerned with sensible, consequential provisions.

The Committee should note that the judge is involved only if there is doubt on the part of officials. A potential juror with an effective hearing aid would not go through the Section 9B process since there would be no doubt that they could be effective. I undertook jury duty many years ago, long before arriving at your Lordships’ House. It was indeed interesting to me, but I regarded it as a duty or an obligation. It is not a right or a privilege in addition to being a duty, as, for example, voting in a general election is. Therefore, I see no requirement to make these special provisions so far as a completely deaf juror is concerned.

I accept that many deaf people can also lip-read, which would no doubt supplement the assistance of a BSL interpreter. My concern is surely that many cases turn on the credibility of the witness and, sometimes, which witness is not telling the truth. Suppose in a case involving an expert witness, counsel is asking searching questions and makes a provocative suggestion. The expert witness might calmly respond, “No, that is not correct”, knowing full well that opposing counsel will return to the matter later. However, what the deaf juror inadvertently could pick up is, “No, that’s wrong”, which might appear to be the counsel having the witness on the ropes, when that is far from the facts.

A further difficulty might arise in the jury room when deliberating the verdict. I have been in the jury room. Discussion could be fast and furious, and I cannot see how the interpreter could possibly keep up. It would be possible to slow the proceedings down, which might be beneficial, but since we do not research how juries operate we cannot tell what the effect would be. The other jurors may simply ignore the deaf juror.

Finally, the clause also, quite properly, makes consequential provisions that put the interpreter under the same obligations of confidentiality as the other jurors. However, he or she is not a decision-maker and will still be in a different position, and we cannot know what, if any, chilling effect on discussions may arise from the interpreter’s presence. I expect noble Lords supporting me will come up with far better arguments than mine, but I oppose the Question that Clause 165 stand part of the Bill.

[Lord Pannick (CB)]

I have added my name to the noble Earl’s opposition to Clause 165. I understand that jury service is a civic duty and there are strong equality arguments that a deaf person should not be disqualified because they cannot proceed without an interpreter. I also understand that the judge has discretion over whether the nature of the issues in the case makes it appropriate for a sign language interpreter to retire with the jury, and that the clause makes it very clear that the interpreter will have a duty not to interfere in or influence the deliberations of the jury. I understand all that, but I have concerns about the consequences of allowing a 13th or 14th person to sit in the jury room. I say 13th and 14th, because there will be a need for at least two interpreters, as any one interpreter is going to struggle to perform this task for more than 30 minutes at a time.

The first set of concerns relates to the effects on the dynamics of the jury. A jury depends on effective communications between the 12 persons serving on it. To ensure that the interpreter performs their role effectively, he or she may need to intervene in the deliberations to prevent people from talking over each other; and the interpreter may need to ask people to repeat themselves or to clarify what they are saying. This will have an effect on the dynamics of the jury room. There is also the potential problem that what is said by the interpreter to the deaf person cannot be understood and monitored by the rest of the jury.

That was the first set of concerns. The second type of concern is that Clause 165 makes provision only for a subset of otherwise excluded members of a jury. We are not making any provision for potential jurors who have insufficient command of English to participate effectively, or persons who cannot read relevant documents because of a low level of literacy or poor eyesight. The clause also makes no provision for deaf or hearing-impaired people who do not use British Sign Language but instead use text communication systems. It is a bit odd to make provision only for deaf persons, and then only for a subset of deaf persons.

My third concern is that, as I understand from helpful discussions with the Minister, provisions similar to Clause 165 have been the subject of testing in other jurisdictions, but no modelling has been done with shadow juries in this country. The noble Earl mentioned that we cannot do research with real juries, but research is often done with shadow or model juries. I ask the Minister whether it would not be sensible, before such a significant change to jury trial is introduced in this country, to conduct some research with shadow or pretend juries to see how this is going to work.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

My Lords, this was an especially thoughtful and constructive debate. I agree with the words that the noble Lord, Lord Ponsonby of Shulbrede, used to describe the debate. His reference to the magistrate was interesting, but the problem with all analogies is that they are different. I am going to focus specifically on the jury issue because I recognise that a number of Members of the Committee have made particular points about jurors.

I will start with the point made by the noble and learned Lord, Lord Hope of Craighead, who referred us to the Equality Act; that is an important starting point for the debate, although it may not be the finishing point. We must ensure that the services of the courts are accessible to everyone, including those with disabilities. We must pay due regard to the need to eliminate discrimination and advance equality of opportunity wherever possible. That, in a nutshell, is why Clause 165 is part of the Bill. Having said that, and because I know that this will be a debate that is looked at by those outside this House as well as by those inside it, let me place on record what need not be said but I am going to say it anyway: that everybody in this Committee shares that aim. We heard a very personal example from the noble and learned Lord, Lord Judge, of Lady Judge’s work in this area. Again I say this for the avoidance of doubt where there should not be any: I am proceeding on the basis that all who have questioned or opposed our proposals do so with the very best of motives and certainly not for any other reason.

Trial by jury is a fundamental aspect of our criminal justice system, and serving as a juror is one of the most important civic duties that anyone can be asked to perform. I agree with my noble friend Lord Attlee that it is a duty and not a right, but the Government and I want to ensure that as many people as possibly can perform that duty. Reasonable adjustments can be made by our courts to enable most people with disabilities to complete jury service. This, importantly, includes deaf jurors who can lip-read. I invite the Committee to reflect very carefully on the position of the deaf juror who can lip-read and to consider it in respect of each of the objections that have been put. I will come to some of them to which this would not apply, but a number of the objections would potentially apply to a juror who is deaf but who can lip-read. Nobody else in the court is likely to know how good the lip-reading is, whether the lip-reader gets every nuance, or how lip-reading affects the dynamics either in the jury box or in the jury retirement room.

That is the first point we get from the deaf juror who lip-reads, but there is another point as well: it underlines the proposition that there is no bar in principle to a deaf person serving on a jury. This is about one issue only, which is the 13th—I will come back to the 14th—person in the jury retirement room. That is why we need the legislation, because at the moment it is 12 and no more; I put the jury bailiff to one side. The issue at the moment is that, unlike a lip-reader who, if the judge considers that they can effectively discharge their duties as a juror—which I will come back to—can serve on a jury, a juror who needs a British Sign Language interpreter is unable to get that assistance because entry to the deliberation room is limited to the jurors, and no one else may enter. The essential point that this clause focuses on is permitting the BSL interpreter to go in, thereby enabling that juror to fulfil their duty.

I recognise that there have been what I might call practical, and almost philosophical, principled objections and concerns raised about the proposal. I note that the Bar Council of England and Wales has expressed its support, subject, it is fair to say, to the right safeguards, which I believe we have in place. I reassure the Committee that we considered the safeguards very carefully in developing the legislation. We looked at research and current practice in the USA, New Zealand, the Republic of Ireland—which is planning to legislate for this form of interpretation—and Australia, where provision is already made for BSL interpreters or the equivalent in its jury systems.

I will first deal with the philosophical or principled objections. I understand the reservations that this might undermine the jury deliberation process, and I understand the argument, although I do not accept it, that interpreters could unduly influence or impact the dynamic of the discussions. There has been a lot of research, particularly in New South Wales, to explore whether deaf people can sufficiently access court proceedings and make informed decisions as jurors. The research suggests that deaf jurors are not hindered from speaking during deliberations and that other jurors seemingly have no issue with the presence of the interpreter or interacting with the deaf juror.

We have put safeguards in the Bill to help to address these issues. Offences relating to research and sharing research during the trial will apply as much to the interpreter as they do to the jurors. As has been pointed out, there is a new offence whereby an interpreter intentionally interferes in or influences the deliberations of the jury or proceedings before the court. I have said “interpreter”, but I accept, as the noble Lord, Lord Pannick, pointed out—I acknowledge my gratitude to him and others for sparing time to discuss this with me—that there will be two BSL interpreters present in the jury deliberation room, not only because they need to switch over as it is a very intensive process for the interpreter but because it has the benefit that they will be able to monitor each other and maintain a consistently high quality of interpretation. To take the point of the noble Lord, Lord Thomas of Gresford, I say that the nuances will be as much picked up by the sign language interpreters as we can anticipate—or not—that they will be picked up necessarily by a lip-reader.

I agree with the noble and learned Lord, Lord Judge, that the jury room is not just confidential but also private; those things are different, and it is both. There is no intention to allow the academics or the researchers in. There is certainly no intention to move from what I think in the judicial review context is called “the judge over your shoulder” to the Minister standing over the juror’s shoulder. We are certainly not going there.

The interpreters will be bound by a confidentiality agreement and be bound by law, and there is an offence to keep everybody honest. They will also be required to swear an oath or affirmation to that effect, alongside their existing interpreter’s oath or affirmation.

I turn to the practical concerns around the nature of evidence and whether a deaf juror will be able to interpret facial expressions, together with audio evidence, effectively. Again, I heard the example from the noble and learned Lord as to how something was said in a tone of complete resignation. The word used in the Act, and in this clause, is “effectively”. The judge would have to decide whether the juror could effectively discharge their role as a juror. This provision does not require judges to admit such jurors on to the jury; it simply removes the blanket ban that would otherwise be present. It means that jurors who need a BSL interpreter can be considered alongside other jurors for whom other reasonable adjustments might be required.

The ultimate decision will be for the trial judge, who will take into account the nature of the case and the nature of the evidence that is going to be heard. No doubt he or she would want to hear submissions from the parties, although they would not be bound by them. As I have said, none of this is new. Again, I ask the Committee to consider how the trial judge should deal with a juror who says, “Well, I lip-read.” The trial judge, again, would have to consider what the evidence in the case was going to be and whether they were going to be able to fulfil their role effectively. There is no difference in principle, and the test and approach of the judge would have to be the same.

I accept that there will be cases where a deaf person would not be able to serve on a jury. I expect that there will be cases where a lip-reading juror might not be able to serve on a jury—for example, if the evidence is audio only and there is nobody to look at; there is just a telephone call playing.

[Lord Pannick (CB)]

I ask this question out of ignorance. Can the Minister confirm what the noble Lord, Lord Thomas of Gresford, said, which is that a BSL interpreter does not interpret in the way that a foreign-language interpreter would, but rather attempts to summarise the gist or essence of what has been said?

[Lord Wolfson of Tredegar (Con)]

I was going to come to that point, but let me deal with it now. BSL is treated as a language. It has its own grammatical structure and syntax; it is recognised as a minority language in the UK. There is not a sign for every word, but words can be spelled out where a sign is not possible. The noble Lord and I have both had cases where we have had simultaneous foreign language interpretation. It is also the case that not every word in every language is easily translatable into another language. Certainly, we have looked at that point, and we do not think that that should be a bar to a deaf juror effectively participating in a jury. For these purposes, BSL is sufficient to enable the juror to participate effectively, but depending again on the nature of the case, that may be a factor in a particular case which the judge would want to take into account.

It is important to start from the proposition that everyone should be able to serve as a juror unless there are good reasons to believe that they would be unable to do so effectively. I underline that word “effectively” in the instant case. I come back to the fact that deaf jurors who can lip-read serve successfully, and we do not believe that there is a reason why there should be a blanket ban on jurors who need BSL interpreters to serve.

Picking up some other points, the noble and learned Lord, Lord Judge, asked about the obligation point and whether there would be a special dispensation. No, there would not be a special dispensation. Like any other juror, the deaf juror who needed a BSL interpreter would have to ask for permission to be excused. Of course, given that the judge would also be considering whether they could effectively participate, perhaps the anterior question would be their effective participation, and then the question would arise as to whether they could be excused. That would also apply, of course, to any other juror who was a lip-reader. One would imagine that a judge would be sympathetic to a lip-reading juror who might say to the judge, “I know that I can serve, but I am very concerned that I might miss something. My lip-reading is good, if not 100%, but I would rather not serve.” Ultimately, however, that would be up to the judge. There would not be a special dispensation.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

My Lords, these amendments in my name make two straightforward revisions which will allow these provisions to operate more effectively and support the principle of open justice across our courts and tribunals. Let me divide them into two groups.

Amendments 243, 244, 245, 248 to 261 inclusive and 325 expand the scope of Clauses 167 and 168 so they apply to all of our courts, tribunals and all bodies that exercise the judicial power of the state, with the exception of the Supreme Court, for which there has already been separate provision, and devolved courts and tribunals, for obvious reasons. This is an important amendment. It ensures that all jurisdictions may use these powers to provide transmissions of proceedings to remote observers in order to uphold the principle of open justice, subject, of course, to further regulation, guidance and judicial discretion.

Digital technologies have become mainstream, even in our smaller and what might be called more obscure jurisdictions. It is now evident that these powers should not be limited to HMCTS courts and tribunals but would be best made effective in all courts and tribunals. Importantly, that also ensures that the offence of making unauthorised recordings or transmissions of proceedings is applied universally across our entire justice system and not just in specific jurisdictions. This will shorten the length of the Bill by around six pages by removing the need for a distinct schedule for tribunals. I was going to add, “making this legislation simpler”, but that might test the patience of the Committee.

Ensuring that our courts and tribunals are as open and transparent as they can be is an ongoing task. The president of the Family Division, Sir Andrew McFarlane, recently published his review of transparency in the family courts. With respect to the president, it is right to say that that was a phenomenal piece of work, which has been well received. The remote observer clauses in this Bill are in harmony with his recommendations, as the Bill allows transparency by permitting journalists to observe family hearings remotely if they cannot attend in person.

The second part of this group of amendments, Amendments 246, 247, 262, 324, and 329, provide technical amendments so that the secondary legislation to enable these powers may be introduced on time. Let me explain what I mean by that. The remote observation provisions in the Bill are intended to replace the temporary and less extensive powers in the Coronavirus Act. They have been vital in allowing our courts to administer justice effectively and transparently during the Covid-19 pandemic.

We want to make sure that there is no gap in the legislative cover. It has therefore become necessary to ensure that these new powers can be enabled in secondary legislation before the date that the existing legislation expires. With this Bill now not expected to receive Royal Assent until only shortly before that date, these amendments take the necessary step of allowing the enabling secondary legislation for these powers to be introduced by the made affirmative procedure. These amendments therefore provide that legislation is continually in place to uphold open justice in remote hearings.

As this morning, I am aware that the group contains amendments from other noble Lords, so I will pause there to allow them to introduce their amendments. I beg to move.

[Lord Pannick (CB)]

I shall speak to Amendment 259B in my name and those of the noble Lord, Lord Marks, and the noble and learned lord, Lord Judge.

Clause 169(2) would allow a jury to be in a different physical location from the judge, so long as all 12 members of the jury are in the same place as between themselves. I am very concerned about this proposed power. In order to ensure the effective management of a criminal trial, a judge needs to be in the same room as a jury. The judge needs to be able to communicate effectively with the members of the jury. The judge needs carefully to watch the jury to see that they are focused and ensure that their needs are addressed. The judge needs carefully to watch the relationships between the 12 members of the jury. The jury needs to be able to communicate speedily and easily with the judge if it has any particular issue that it wants to raise. Members of the jury need to be able to study the witnesses giving evidence—what they say, what they do not say, and their body language and facial expressions while doing so. All this is so much more difficult through a computer screen, as we have all discovered, whether through court proceedings or parliamentary proceedings, during the pandemic.

I have had very helpful discussions with the Minister about this matter, and I am very grateful to him and thank him for those discussions and the time that he has devoted to them. I understand from him that the Government have no plan to encourage the use of remote juries. Instead, as I understand it, the Government believe that this would be a useful power essentially for three reasons: we may be afflicted by another pandemic; there may well be advances in technology; and, in any event, this power may be useful today if a judge and lawyers, for example, go on a site visit and one or more members of the jury is physically disabled, in which case the site visit can be watched by the whole jury online. That is the example that the Minister gave me.

I have to say that I find these justifications unpersuasive. I am always suspicious of broad powers being taken in legislation “just in case”. I certainly do not doubt the Minister’s good faith, but his assurances as to what is intended to be done under this proposed power do not bind—cannot bind—his successors in office to what he has done; they may have very different proposals or intentions as to the use of these powers. With great respect, the site visit example is, I think, very far-fetched. I am not aware of any such problem in any case in recent years, if ever.

In any event, if Ministers think that provision should be made for such a limited, specific use of remote hearings, with juries in a different place to the judge and the defendant, let it be made clear in the drafting of the clause that a remote hearing cannot take place with the jury in splendid isolation from the judge, the witnesses and the defendant in relation to the hearing of oral evidence, the submissions of counsel or the summing-up by the judge.

Although they have not yet been spoken to, I express my support for Amendments 259A and 259B, both of which concern aspects of the proposed power to be conferred on the court to require a person, including a defendant, to take part in proceedings by audio or video link. I can well understand that this may be a useful power for a preliminary hearing, but not for a substantive trial, unless the defendant consents to that. I am very unhappy about this in relation to young persons.

There are real issues as to whether a defendant would have effective access to a hearing, were his or her presence to be remote, and real concerns as to whether they could effectively communicate with their legal representatives. The Ministry of Justice may be hoping to save some money if it does not need to transport defendants from prison to court, but I am doubtful that it will save much money because it will need to invest in very high-quality computer systems. In any event, I fear the price will be a reduction in the quality of justice, and that price is too high.

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[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful again to the Committee for a very interesting and wide-ranging debate. I thank my noble friend Lord Deben for the most back-handed compliment I have ever received and assure him that, when it comes to justice, I absolutely subscribe to the proposition that justice must be not only done but seen to be done. That reminds me to underline what Clauses 167 and 168 are about: they are about justice being seen to be done. These clauses do not mandate remote hearings; that is for a judge to decide. What they do is permit remote observation of those hearings, which underpins open justice.

When we look at issues such as this, we need to bear in mind that the days when the local newspaper would send people to sit at the back of the Crown Court or magistrates’ court are long gone. In the real world, you will have greater transparency if you have a live feed to journalists from the courtroom than if you say, “You’ve got to come along and take a note”. They simply do not any more, and I am concerned with making sure that we actually have open justice and that it is not just something we talk about.

Amendments 245A and 245B seek to prohibit those transmissions being made to remote observers in all cases where a child is among the parties. Amendment 259A similarly seeks to remove children from the application of Clause 169, which is about video and audio links in criminal proceedings. It would prevent the court, as a blanket ban, from making a direction to enable any participant in a hearing to attend by live link where a child is party to proceedings.

I absolutely agree with the intention of safeguarding children in our courts. We have debated that point in a number of areas of this and other Bills, but I suggest that these amendments are both ineffective and unnecessary. They are unnecessary because we already have in place sufficient tried and tested legislation and guidance to safeguard the privacy of children in these proceedings. Section 47(2) of the Children and Young Persons Act 1933 prevents anyone being present at a youth court hearing except members of the court, parties and participants, accredited media representatives or specifically authorised persons.

In other courts, procedure rules provide that it is legitimate to hold a hearing in private

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

Courts have a statutory duty to have regard to the welfare of children. Judges, magistrates and tribunal members retain judicial discretion over whether a case is to be heard in private, with full consideration of their duty to protect minors or other vulnerable parties, where necessary. The ineffective or counterproductive point is that there may be cases where it is beneficial for a child, whether as a witness or a defendant, to participate by live link. If one is focusing on cases where children can be affected, one also has to bear in mind that there are lots of cases which affect children where a child is neither a party, nor a witness, nor physically involved at all.

Clause 169, as drafted, gives courts the flexibility to make decisions to direct remote participation where it is considered in the best interests of child participants to do so. I draw the Committee’s attention to the word “may” in the first line of subsection (1) in new Section 51. It is vitally important that we continue to protect children. That is why we have built these safeguards into our provisions.

Amendment 259B, which I think the noble Lord, Lord Pannick, spoke to first, seeks to exclude juries from the provisions in Clause 169 that enable a jury assembled together to participate in a trial through a live video link, where appropriate and deemed to be in the interests of justice. The Committee is entitled to a clear statement from the Dispatch Box and I will make one: there is absolutely no intention for this to become a regular feature of trials, with the jury sitting in one room and the judge and the witnesses in another room. As the noble and learned Lord, Lord Hope of Craighead, reminded us, Scotland did put that provision in during the pandemic—I think cinemas were used, so that everything was on a big screen and the audio was very good. That was done in response to the pandemic, and this measure is a future-proofing measure.

I hear what my noble friend Lord Deben says about that and about civil servants tapping Ministers on the shoulder, but, since the pandemic, we have witnessed big changes in how we run our jury system. We have seen —and here I pay my respects again to judges and all others involved in the justice system, who have worked extremely hard to do this—suitable procedures put in place. But we have also seen how legislation tied our hands during an emergency and impeded our ability to progress quickly and make full use of the technological options open to us. We do not want that to happen again. Clause 169 is designed to provide courts with the flexibility to keep pace with new technology as it develops.

As the noble Lord, Lord Pannick, said, that is the second reason for this clause. Technology is developing in ways that we could not have imagined a few years ago, and we have no idea where it will take us in the future. We want to be sure that we have a statutory basis to take advantage of technology as it develops, so that we can provide a justice system that is fit for the century that we live in and for the way that people live their lives. Those are the two main justifications for Clause 169.

I gave the noble Lord the example of a site visit. Again, I make clear that this is not the main justification for it, but it is important if one has a jury with a disabled person on it. The idea is shocking that, in 2021 a disabled person could be told that they cannot sit on a jury because, at some point during the three-week trial, it will look at the locus in quo, which is a room at the top of a winding staircase, and they cannot climb the stairs. The whole thing could be done very effectively via video, and so that is not a reason to stop them serving on a jury.

[Lord Pannick (CB)]

I am grateful to the Minister. Can he say whether there has ever been such a case?

While I am on my feet, I have another question. The Minister mentioned that technology may develop. I think the concern from those of us who have doubts about this proposal is not advancing technology but human communication. However good the technology becomes, there is still a vital distinction between watching proceedings on a screen and being in the same room as other people. I suggest to the Minister—this is certainly my experience and, I think, the experience of most lawyers and judges—that, although the courts have worked wonders during the pandemic, they have recognised the inferiority of any system that is within our contemplation by means of technology compared with being the same room. The ability to communicate and have an interchange with other people is manifestly weakened by having to do it over a screen.

[Lord Wolfson of Tredegar (Con)]

Absolutely. I do not disagree that face to face is better; no doubt that is what we all feel in this Committee—that it operates much better when we are in the same room than it did when it was all on screens. I absolutely accept that. Let me give an example. Before I became a Minister, I did a three-week trial entirely on screen, with witnesses around the world. After about a day, you forget, and you get used to the new system.

I am not saying that we want this clause here because screens are better; we want this clause in the Bill because screens may be necessary if we have another pandemic and because we do not know where technology is going to go. I do not want to get too techy about it, but there is a very real difference between watching a screen in the sense of a computer monitor and some of the things that I have seen in banks, where there is a big screen down the middle of a table and six or seven of you sit in a row and look at it, while the people you are talking to have the same thing in their office. After about half an hour, you really feel that they are on the opposite side of the table to you. Again, I am not suggesting that that is suitable for courts, but it is an example of how technology can, and will, develop. We want to future-proof it, as I have said.

Amendment 259BA would require anyone taking part in any sort of criminal hearing via live link to submit to a prior assessment of their physical and mental health before the court could consider whether it is appropriate for them to take part in criminal proceedings over a live link. I share the concern of the noble Lord that we must ensure that audio and video links are used appropriately. Again, we have built safeguards into Clause 169, setting out procedures and guidance that courts must follow. The court must decide whether it is in the interests of justice; that includes taking the views of the person who would attend by live link on whether they can participate effectively in the proceedings. The clause also requires that the parties have an opportunity to make representations to the judge.

I also point out that, although the intention behind the amendment is understandable, perhaps even laudable, in practice, it could prevent or deter some people from using a facility that could help them to participate in hearings with as little distress, inconvenience and delay as possible. I therefore urge noble Lords not to press their amendments.

Police, Crime, Sentencing and Courts Bill

Lord Pannick Excerpts

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

[Lord Falconer of Thoroton (Lab)]

The reason I did not tell noble Lords why I strongly supported all these amendments was because I made a mistake and did not realise that they were in the same group until the noble Lord, Lord Thomas, mentioned it. I apologise to the Committee for that error.

May I just go through them? I have done Amendment 268, which concerns Section 28 of the Youth Justice and Criminal Evidence Act. The next is Amendment 286, which proposes to insert a new clause into the Youth Justice and Criminal Evidence Act 1999 and would exclude the admission in evidence, whether by the prosecution or the defence, of any sexual behaviour of the complainant with a third party, for the purpose of showing consent or lack of consent, while leaving evidence of sexual behaviour with a third party admissible if it is relevant to any other issue in the case.

In addition, it sets out a further requirement that, where such evidence is sought to be introduced in relation to an issue other than consent, that material must be more probative than prejudicial, and it sets out the considerations the judge must have regard to in considering that extra requirement. The purpose of this amendment is to give the clearest possible signal that evidence of any sexual behaviour of the complainant with a third party—that is, not the defendant—should be regarded as completely inadmissible on the issue of consent. This is important because it is intended to mark a change from the past, where all too often such evidence is admissible in circumstances where it is of very limited probative value, and the ability of that evidence to be admitted makes people—complainants—incredibly wary of coming forward and making complaints. This is the legislature giving a clear signal that it wants a change in relation to that. That is why it is there.

[Lord Pannick (CB)]

I am sorry to interrupt the noble and learned Lord, but would his amendment mean that if the complainant says, “I would never, ever consent to sexual behaviour” of a particular description, it would not be open to the defence to adduce evidence that that was precisely what the complainant had done with a third party?

[Lord Falconer of Thoroton (Lab)]

It would exclude such evidence; there is no doubt about that, and rightly so, because what the noble Lord is referring to is evidence where the defence says, “Well, you say this in relation to this case, but what about this?” and then refers to another instance of sexual connection and says, “Look what you did there.” The purpose of the provision is to do exactly what the noble Lord, Lord Pannick, says.

[Lord Pannick (CB)]

I would like to test this proposition, because it strikes me as rather surprising. If a complainant says to the court, “Not in relation to this particular person, but I would never ever contemplate” doing something, and there is evidence, otherwise admissible, that she has done so in the past, that seems to be highly relevant to the jury’s assessment.

[Lord Falconer of Thoroton (Lab)]

What I am saying in putting forward this provision is that you want to send a clear signal that a certain sort of evidence is not admissible. In order to make it easier for people to come forward, you need to have much clearer lines than we have had previously. There has been a whole variety of evidence that English law has said is not admissible, even though many people would think it was probative, because it is the safest way overall to deal with trials—it is the safest way to ensure that an appropriate balance is struck between complainant and defendant.

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[Lord Pannick (CB)]

My Lords, I intervened earlier on Amendment 286 because of my concern about an absolute rule in this area. My concern is increased by the practical experience of the noble and learned Lord, Lord Judge, in this matter. I am also concerned about Amendment 289 regarding the complainant’s right of representation in relation to an application and whether there should be evidence concerning sexual conduct, not merely for the reason the noble and learned Lord gave, with which I agree: that the prosecution are ministers of justice and are there to deal with such matters. I am also concerned that this is a recipe for delay. If it is really to be said that the victim is to be separately represented and able to make an application, presumably after notice has been given, and there is to be a right of appeal to the Court of Appeal, that is inevitably going to delay further trials that are already far too long delayed.

[Lord Falconer of Thoroton (Lab)]

On the points made by the noble and learned Lord, Lord Judge, about the criminal procedure rules, I agree with him. There is no need for the Secretary of State to intervene, and I accept that completely. Secondly, I also completely accept his point that the Secretary of State should not be making that determination; that is my drafting error.

I utterly repudiate the point made by the noble Lord, Lord Pannick, about delay and non-representation, a position which the noble and learned Lord, Lord Judge, also adopted to some extent. It is really important that the complainant have, and feel that they have, a voice in the process of what is going to happen to them at the trial. The point about delay could be dealt with by ensuring that these applications are all dealt with before the trial. If there is to be an appeal and the complainant says, “It is unfair that my past is being raked over in this way, I want to appeal”, then there may be occasional cases where there are delays, but their rights should be recognised. The fact that they have a voice is really important.

The noble and learned Lord, Lord Judge, said that the prosecution is there to look after them. My experience is that the prosecution will try as much as possible to look after them but that they should have a separate voice. They will frequently feel—not because the prosecution is in any sense not doing his or her duty, but because they feel their voice is not adequately represented—that they should have a separate voice because they have separate concerns from those of the prosecution, which has to look at the situation not just from the point of view of the complainant but in a wider context. So I accept two out of the three points made by the noble and learned Lord, Lord Judge, but none of those made by the noble Lord, Lord Pannick.

On the first point made by the noble and learned Lord, Lord Judge, regarding cases where it is vital to know what the position is—he gave the example of a trial he had heard—I am keen to draw a line so that people know where they stand, just as, in relation to the rules of evidence over many centuries, English law has said that some evidence is admissible and some is not, even though from time to time, it has been obvious that the inadmissible evidence might have been very compelling, but for reasons of bigger policy it was inadmissible.

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There is another kind of case I should mention, and which will stay in people’s minds, particularly if they remember Hillsborough, and that is the circumstance in which the process, or activity outside the process by the media, has cast a slur upon the victims—on those who have died. When confronted by that, people despair. In Liverpool, their answer was not to take the Sun newspaper anymore, but that is a pretty limited response to a slur being cast which suggests that the family which has suffered death has done so because of some non-existent failing on the part of the victim. These are very desperate situations in which people find themselves, and I am not sure that we are doing enough to help them.

[Lord Pannick (CB)]

My Lords, I too support the principle behind Amendment 269. We regularly see the disturbing prospect of bereaved families being unrepresented when public bodies have very competent representation. This undermines public confidence in justice, and it sometimes impedes the ability of the coroner or the public inquiry to get to the truth of matters of enormous public importance.

However, I am not persuaded that the mechanism contained in Amendment 269, in proposed new subsection (1), is the correct one. It provides that the representation for bereaved families must be

“at the same level or in proportion to the resources provided to the public authority or private entity”.

I would be content if competent representation were provided.

I draw to the attention of the Committee that there are cases in the Court of Appeal where it has been argued, under the Human Rights Act, that a defendant in a criminal case was entitled to representation under legal aid by Queen’s Counsel because the prosecution was represented by Queen’s Counsel. The Court of Appeal said no, and that what they are entitled to—and rightly so—is competent representation. So I think this is going too far.

The noble and Learned Lord, Lord Mackay of Clashfern, suggested one way forward: that the public body should make provision. Another way of dealing with it would be for the chairman of the inquiry, or the coroner, to have a statutory discretion to order that specific persons be provided with public funding, whether by legal aid or otherwise. There are a variety of mechanisms, but I entirely agree with the noble and learned Lord, Lord Falconer of Thoroton, that the principle now needs to be enacted.

[Lord Sandhurst (Con)]

My Lords, I shall speak shortly. I have always had a long interest in legal aid and its proper provision. My concern is that this amendment is aimed at the right target but goes too far. Look, for example, at the wording; as I understand it, it would apply every time there is an inquest involving someone who has died in a hospital. If that has been the result of possible negligence on the part of the hospital—I am talking about an NHS hospital here—then there is a potential claim against the hospital. If that potential claim has any reasonable merit, it is likely that solicitors experienced in medical and legal work will undertake the inquest because, in due course, if the claim is brought and damages are recovered and costs awarded, the cost of representation at the inquest will be recoverable in the personal injury action. That has been the case ever since the “Marchioness” disaster and the costs thereafter.

All I say is this: there should be representation in appropriate cases involving state institutions. We can all think of examples—not just Hillsborough; it could be a hospital or something else—where the state and a public authority are involved, and it is unfair to the family to have to scrabble around to get funds if they can. I would like to see careful consideration given by the Government to how this can be properly designed to find a balance. There is a strain on public resources; there are many other areas where legal aid is not provided, particularly in the family courts, and we know that funds are short. Equally, they should consider whether, in appropriate cases, it should be at the coroner’s discretion to direct the Legal Aid Agency to look at this. I argue that the Government should think very carefully about this and about what would be a fair balance, given the strain on public resources, to ensure that people who need and deserve it get resources provided to them.

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[Lord Hunt of Kings Heath (Lab)]

My Lords, I have added my name to the amendment in the name of the noble Baroness, Lady Newlove; I also support my noble friend in her powerful advocacy for her own amendment.

I want to emphasise a couple of points made by the noble Baroness. She referred to HMIC report, Police Response to Violence Against Women and Girls. I must say it makes for very sober reading about the inadequate response of many police forces to these issues. We know from the report and from the statistics referred to by the noble Lord, Lord Russell, that many cases do not proceed through the criminal justice system and, of the offences that do come to the attention of the police, many do not proceed any further. I would not argue that time limits are the sole reason, but they are a factor. I am indebted to Refuge, which does fantastic work in this area, for setting out some of the challenges that particularly women experiencing domestic abuse face and why they delay reporting incidents of common assault. They may feel understandably traumatised or physically unsafe immediately after the incident. They may still be in a relationship with the perpetrator. They may be dealing with the traumatic and logistical challenges of fleeing the scene.

Due to the six-month time limit on charging summary common assault offences, by the time many women are ready to speak to the police, they are told that the charging time limit has passed and there are no further opportunities for them to seek justice against their perpetrator or access protection through criminal restraining orders. There are so many reasons why, quite legitimately, women in particular are not able to come forward and meet the time limit. I appeal to the Minister not to respond with a typical ministerial response but to say that he will take this away and look at it. I echo the point made by the noble Lord, Lord Russell. I have noticed the practice of announcements being made in the media about what the Home Secretary is going to do but then often dying a death. We realise that sometimes they are flying a kite to see how it lands, but this is not the way to do business on such sensitive and important issues. I hope that the Minister will bring us comfort.

[Lord Pannick (CB)]

My Lords, I, too, support these amendments. I shall add two very brief points in relation to Amendment 277, which was moved by the noble Baroness, Lady Kennedy. First, the noble Baroness referred in her speech to the Appellate Committee decision in R v J. The Committee may be interested to know that in that decision Lord Bingham of Cornhill, the senior Law Lord, said at paragraph 15 that the history of the 1956 Act

“has been shown to result in much internal inconsistency and lack of coherence”.

His Lordship added that the fact that an unambiguous statutory provision—and it is unambiguous—is

“anachronistic, or discredited, or unconvincing”

does not enable a court to do anything about it. This Committee and Parliament are, of course, under no such inhibition, and for the reasons that have been given, I hope we will do something about it.

The only other point I want to make is that any defendant in any criminal case who believes that the passage of time results in unfairness to them is perfectly entitled to submit to the court that it would be an abuse of process for the trial to continue. They are perfectly entitled so to argue, but that is not a reason why we should not amend the law in the way suggested.

Police, Crime, Sentencing and Courts Bill

Lord Pannick Excerpts

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

[Lord Beith (LD)]

My Lords, I share many of the reservations expressed already and the analysis given on both the provision and the circumstances which have led to it. I ask the Minister, in his response to the debate, to deal with one of the points raised by the noble Viscount, which is the discretion that might be available to the judge in deciding what tariff accompanies the sentence, as opposed to the provisions of proposed new subsection (2), which give slightly more power—I refrain from defining it as a wider power—in exceptional circumstances to the judge to impose a different sentence altogether.

One thing the Minister did not cover in his helpful introduction was the extent to which the tariff provisions interact with this. I would be grateful if he could explain that, in case he can give us any reassurance about what seems to be the danger of making general law out of a particular case.

[Lord Pannick (CB)]

My Lords, if I may, I will add a point that follows on from what the noble Lord, Lord Beith, said. To require a life sentence is pure deception because we all know that life sentences are not life sentences, and there is a strong feeling that the life sentence for murder is a deception. Other than in the most exceptional circumstances, the person concerned will be released, and the judge pronounces, in open court, a tariff. I entirely understand why the Government wish to give comfort to the unfortunate relatives and friends of those heroic emergency workers who suffer this appalling treatment and die in service of the country, but it is a gesture—a misleading gesture. We really should not be perpetuating more and more life sentences when the reality is that people receive a term of years.

[Earl Attlee (Con)]

My Lords, arguing this case is far beyond my pay grade, but I support everything that my noble friend Lord Hailsham said in opposition to these amendments. I do not support Amendment 1.

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[Baroness Jones of Moulsecoomb (GP)]

Then if the Minister puts the Question, I will call for a vote.

[Lord Pannick (CB)]

Any Member of the House can call a vote but, if the Minister is not willing to accede to any of the suggestions that have been made, it is the obligation of the Front Benches to indicate that they are so dissatisfied, in the light of all the debate and the fact that we have only had a week to consider this, that they will divide the House. If they were so to indicate, that might impose a bit more pressure on the Minister.

[Lord Wolfson of Tredegar (Con)]

In the last week, as is my wont, I have had discussions with a number of Members of this House on this matter. Any Member of the House knows that my door is always open to them, metaphorically and often literally. All the discussions that I have had on this amendment have been ones that I have reached out to others to have. Nobody has knocked on my door. In those circumstances, I cannot say that we will adjourn. If I am told differently, that will be for others to decide. At the moment, I will ask the House to vote on my amendment.

Police, Crime, Sentencing and Courts Bill

Lord Pannick Excerpts

Lords Hansard - Part 1 & Lords Hansard - part one & Report stage
Monday 13th December 2021 Lords Chamber

[Baroness Greengross (CB)]

My Lords, I am speaking in favour of Amendment 55ZB from the noble Baroness, Lady Whitaker, which would ensure that Gypsies and Travellers are not evicted from an unauthorised site unless they have refused to go to a suitable alternative site. I note the noble Baroness’s comments that, when she met with the Minister, the noble Baroness, Lady Williams, she was told that the provision of sites for Gypsies and Travellers was a planning matter and that an amendment which dealt with it was not for this Bill.

On 4 November, the Minister, the noble Lord, Lord Greenhalgh, in response to my question highlighting that only eight local authorities out of 68 in the south-east of England have identified a five-year supply of specific, deliverable sites for Gypsies and Travellers, responded that it is the responsibility of local planning authorities to make an assessment of the need for both permanent and transit sites and to identify sites in their local plans. The Government are of course correct that this is a planning matter, yet the evidence is clear that this issue has not been appropriately addressed by many local authorities.

This amendment provides some protection for the Gypsy and Traveller communities, as it stipulates that they cannot be forcibly evicted unless they have refused a suitable alternative site. While this Bill is not about planning, we cannot ignore the impact it is going to have, if passed, on nomadic communities at a time when there are too few suitable sites.

It is encouraging to hear that, in Leeds, there have been systems established and sites made available to address this issue. It is even more encouraging still to hear that the noble Lord, Lord Greenhalgh, is taking steps to encourage these types of systems across the country.

This amendment would provide appropriate protection for Travellers and Gypsies, while also ensuring that, where a suitable alternative site is available, this cannot be refused. Further, it highlights why more must be done to encourage local authorities to provide suitable sites for Gypsies and Travellers.

[Lord Pannick (CB)]

My Lords, I have a question for the Minister which is relevant to Amendment 55ZB, in the name of the noble Baroness, Lady Whitaker. The noble Baroness will know that the offence which will be created by new Clause 63 contains a defence in subsection (6), at line 40 of page 59 of the Bill. The defence is that it is open to the Traveller to say that he or she had a “reasonable excuse” for not moving on when asked to. Does the noble Baroness accept that it would be open to the Traveller to say, “I have a reasonable excuse for not moving on; my reasonable excuse is that there is no suitable pitch in the local authority area to which I can go, and it is therefore completely unreasonable on the facts of my case to expect me to move on”? Does the noble Baroness accept that it would be open to the Traveller to present that defence? It is certainly the defence I would advise the Traveller to use, were I representing him or her. If the noble Baroness accepts that that defence in principle would be open to the Traveller, I respectfully suggest that much of the force of the amendment in the name of the noble Baroness, Lady Whitaker, is reduced, because there is a balance in this provision.

I make one other point: I do not myself find it particularly helpful when we are debating these difficult issues—and they are difficult issues—relating to a balance between competing interests for noble Lords to refer to Auschwitz. Let us be proportionate and reasonable about these issues. We have here a difficult question of the rights and interests of the Traveller and the rights and interests of the occupier or owner of land. I remind noble Lords that this criminal offence applies only if it can be shown that the occupation of the land by the Traveller is causing “significant damage”, “significant disruption” or “significant distress”. I understand the concerns, but let us keep a sense of balance and recognise, if I am right in my understanding of subsection (6), that there is a defence open to the Traveller who can show that they have a reasonable excuse—which, so far as I can see, would cover the absence of suitable pitches in the area.

[Baroness Bakewell of Hardington Mandeville (LD)]

My Lords, I support this group of important amendments, which seek to bring some sort of equality into the Bill when dealing with the Gypsy, Roma and Traveller communities, which is significantly absent from the Bill as it stands.

On Friday, the most reverend Primate led a debate on the challenges to freedom of speech and the role of upholding freedom of speech. He said in his remarks that one of the threats to freedom of speech is the “dehumanisation” of those with whom we disagree:

“We must be alert to how our habits of communication can stifle our creative imagination—how they might make us see others as somehow less than fully human.”—[Official Report, 10/12/21; col. 2109.]


While this section of the Bill is not about freedom of speech, it is certainly about the loss of freedom to roam.

In Committee, we heard speeches from some quarters which made assumptions about the character and lawfulness of the Travelling community, without evidence being provided to substantiate the allegations. All the amendments in this group deal with Part 4 of the Bill, which seeks to demonise and terrorise the Travelling community. I support Amendment 55ZB and congratulate the noble Baroness, Lady Whitaker, on her contribution.

The Travelling community is often portrayed as being less than fully human. It is true that their way of life is very different from that of those in this Chamber, but they are human, and they have the right to a roof over their heads, to educate their children and to have access to healthcare. This can be achieved only when they have somewhere to stop with their caravans. The Minister has rightly said that the provision of sites is a local authority matter and dealt with through the planning process, but she is reluctant to ensure that local authorities step up and fulfil this role.

As a vice-president of the LGA, I receive a regular copy of the Local Government First periodical. In the latest edition, there are two articles on Gypsies and Travellers. The first is from Sarah Mann, the director of Friends, Families and Travellers, about countering inequalities. GRT communities are known to face some of the poorest life outcomes across multiple indicators among the UK population. FFT provides local government with training on cultural awareness to provide more inclusive services, and this has resulted in the provision of more transit and permanent sites in certain areas. The second article was from Boris Worrall, chief executive of Rooftop Housing Group, which provides high-quality accommodation solutions to the Travelling community. He writes that the evidence shows that

“where high-quality sites are provided for the … (GRT) communities, and managed effectively, there is a wealth of evidence about better outcomes for residents, positive community relations and the avoidance of taxpayer costs.”

There are solutions out there to what some sections of our community see as the problem of GRT. It is part of the role of government to promote these to the benefit of all. The draconian measures in this Bill are not the answer and are a sledgehammer to crack a nut. My friend Lord Avebury, had he been here, would have had much to say on this matter.

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The arguments for or against the provisions in Clause 63 come down to one issue and one issue only: is it acceptable for a person to take their vehicle on to other peoples’ land without their permission and cause significant damage, disruption or distress? I know the answer that the British people would give to that question. If noble Lords vote through any of the amendments in this group, those who do so would send a clear message that such behaviour is acceptable. I therefore ask my noble and learned friend to withdraw his amendment.

[Lord Pannick (CB)]

I thank the noble Baroness for answering my earlier question. As I understood her answer, it was that there can be no reasonable excuse for causing significant damage or significant disruption. I point out to her that the defence under new subsection (6) is that the defendant would have a defence if they have

“a reasonable excuse for … failing to comply as soon as reasonably practicable with the request”

to leave. It has nothing to do with whether they have caused disruption, distress or damage; they have an absolute defence if there is a reasonable excuse for not leaving the land when asked to do so. That is why I put to her that, surely, it could be a reasonable excuse that there is nowhere else they can go. Would she like to reflect on that?

[Baroness Williams of Trafford (Con)]

As the noble Lord probably knows, that will be a determination for the courts to make.

[Lord Pannick (CB)]

I am simply anxious that the matter is not left on the basis that the Minister put it, because I respectfully suggest that that is not right.

[Baroness Williams of Trafford (Con)]

Perhaps we could discuss this further if that is amenable to the noble Lord, but I accept his point that it is not right to just leave it like that. In determining what is a reasonable excuse, it would be for the police and the courts to determine whether the excuse was reasonable.

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Wednesday 15th December 2021 Lords Chamber

[Viscount Hailsham (Con)]

My Lords, I support the observations made by the noble Lord, Lord Marks. On previous occasions, and indeed in Committee, I expressed my real anxiety about mandatory minimum sentences, particularly in the context of this group of amendments. I share the noble Lord’s view that a mandatory minimum sentence of this kind is capable of doing very considerable injustice.

I appreciate my noble friend the Minister’s view about exceptional circumstances, which he has explained before. I recognise that there is an ability on the part of the judge in exceptional circumstances to disapply the minimum sentence, but I share the noble Lord’s view that the concept of “exceptional circumstances” means something way out of the ordinary—exceptional. That means that the proviso, in my view, will be seldom applied.

The amendment moved by the noble Lord goes much further than that and, in my interpretation of it, imports the concept of fairness and justice. I agree with him. Because that is my interpretation of the amendment —namely, that we are introducing the concept of fairness and justice as a means of disapplying the minimum mandatory sentence—I shall support the amendment if the noble Lord seeks the opinion of this House.

[Lord Pannick (CB)]

My Lords, I have added my name to the amendment proposed by the noble Lord, Lord Marks, and I agree with everything that he said and, indeed, what has been said by the noble Viscount, Lord Hailsham. There is no doubt that there is a real difference, both in principle and in practice, between exceptional circumstances and what is required in the interests of justice. It seems to me that, whether or not the circumstances are exceptional, it is essential that the court has a power not to impose a sentence that the judge believes to be contrary in the circumstances of the particular case to the interests of justice.

I am surprised and disappointed to hear from the noble Lord, Lord Marks, that a Minister of Justice, particularly one as wise and fair as the noble Lord, Lord Wolfson, should resist an amendment that confers power on the courts to avoid imposing a sentence that the judge believes would be contrary to the interests of justice. How can that possibly be right? If we are to have more minimum sentences—and I share the concerns as to whether we should—it is absolutely essential that the judge has a discretion to impose a sentence that he or she thinks is in the interests of justice.

[Lord Garnier (Con)]

My Lords, I entirely agree with the noble Lords, Lord Marks and Lord Pannick, and my noble friend Lord Hailsham.

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[Lord Wolfson of Tredegar (Con)]

We must distinguish carefully between whether it is wise, which is a point we can make about any legislation, and whether it is proper. When the point is put against me that this is an attack on judicial discretion and a case of not trusting judges, I hear it as a matter of policy and constitutional propriety first and a matter of wisdom second. So far, I have addressed the point on constitutional propriety. My noble and learned friend is right to say that Parliament can do what it likes; my point is that, here, Parliament is doing what is constitutionally proper as well. As to whether it is wise, I set that out earlier.

In these circumstances, it is proper to endorse the exceptional circumstances test. A system in which 50% of people are not being given the minimum sentence is, I suggest, one in which something is going seriously wrong. Although I pay great respect to anything said my noble and learned friend, the point put briefly but clearly and firmly by the noble and learned Lord, Lord Hope of Craighead, ought to carry serious weight with the House.

[Lord Pannick (CB)]

The Minister mentioned a Court of Appeal authority on this matter. Can he confirm whether that authority suggests that, if a judge in an individual case believes it would be contrary to the interests of justice to impose the minimum sentence, that is a strong indication that there are exceptional circumstances?

[Lord Wolfson of Tredegar (Con)]

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

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

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

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

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

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

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Monday 10th January 2022 Lords Chamber

[Lord Sentamu (CB)]

My Lords, I too support these amendments and thank the Government for their clarity; there were some other sections about which we were not sure in terms of their language. Again, sorry to sound as though I am stuck in a groove: in the Stephen Lawrence inquiry and its recommendations there is a definition of a racist incident and a homophobic incident. Parliament, in the other place, accepted all 70 recommendations. If you want to find how to phrase what the noble Lord, Lord Paddick, is talking about, it is already there in the Stephen Lawrence inquiry report and the recommendations that we made.

The thing about the law is that it must be predictable, easy to understand and not shrouded in mystery. I support the noble Lord, Lord Paddick. The Government need to be clear about this and the language because the other place accepted all 70 recommendations. It is in there, and it would be a mistake not to be very clear about the whole question of these homophobic incidents and the abuse that some people have suffered. I would support the Government in finding that language. They could put in similar words about what they have actually done about racism.

[Lord Pannick (CB)]

My Lords, I agree with the noble Lord, Lord Paddick, that it is very important to have clarity that homophobic abuse is here covered. For my part, I understand—I ask the Minister to confirm whether he agrees—that the substance of these amendments does cover homophobic abuse, in particular proposed new subsection (6) of the new clause, which refers to Part 3A of the Public Order Act 1986, which, as I understand it, specifically covers homophobic abuse, as does proposed new subsection (6)(x)(ii), which refers to Section 66(1) of the Sentencing Code, which, again, I understand covers homophobic hostility as well as racial hostility. But clarity is absolutely essential here.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank noble Lords for their contributions to this debate. In answer to the noble Lords, Lord Paddick, Lord Bassam and Lord Pannick, I can happily clarify that this includes homophobic and misogynistic hate speech, and all other forms of hate speech. The noble Lord, Lord Pannick, is absolutely right: it is under Section 3A of the Public Order Act 1986. I am afraid I do not have the Sentencing Code so I will have to look into that for him.

The core amendments apply to online hate speech where the court has found on sentencing that the offence was aggravated by racial or religious hostility, or hostility related to disability, sexual orientation or transgender identity. This reflects the five types of hate crime recognised by the law, which I think is the Sentencing Code.

I agree with the point made by the noble Lord, Lord Bassam, about other sports. I have heard the DCMS Minister answer questions on this, and there will of course be other opportunities in other Bills coming up, which I suspect will also have something to say on the subject, but I will take it back to both departments.

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[Lord Macdonald of River Glaven (CB)]

My Lords, I too warmly support this amendment. Like most criminal lawyers, I have often visited women’s prisons and I must tell your Lordships that they are shattering and disturbing places. The sheer amount of human damage that one encounters in women’s prisons is very disturbing. My main reason for supporting this amendment as strongly as I do is precisely the delivery aspect to which my noble and learned friend Lord Thomas has just referred. Something has to be done to persuade the Government, and all of us, I suppose, to focus on the processes that are leading women—mostly damaged women, with children, who themselves are victims of serious crime—into these places. Without a way to focus on this as a public policy that can deliver some change, nothing will change. I strongly believe that the proposal in this amendment, if adopted by the Government, could lead to some desperately needed change.

[Lord Pannick (CB)]

My Lords, I too support this amendment. It seems to me that the case for the amendment is made plain by the functions of the proposed board, as set out in subsection (5). The functions include meeting the particular needs of women in the criminal justice system; monitoring the provision of services for women; obtaining information from relevant authorities; publishing information; identifying, making known and promoting good practice; commissioning research in connection with such practice; and providing assistance to local authorities and other associated purposes. Is the Minister really disputing that there is a vital need for all of that to be done, and by a body dedicated to that purpose?

[Baroness Bennett of Manor Castle (GP)]

My Lords, I was pleased to attach my name to these two amendments, and I thank the noble Lord, Lord Marks of Henley-on-Thames, for leading on them. The case has already been clearly made and I will not speak for long, given the hour, but it is worth looking back at the history of this. I looked it up and found a House of Lords Library note from 25 January 2008, referring to a debate drawing attention to the case for setting up a women’s justice board. In 2014, there was an amendment to the legal aid and sentencing Bill seeking to do the same thing. We are often accused of proposing novel ideas that, we are told, we need to go away and think about, but that argument simply does not apply in this case.

The noble Baroness, Lady Corston, produced an enormously important report well over a decade ago that made a huge number of recommendations, most of which have not been implemented. This really is another way, as several noble Lords, particularly the noble and learned Lord, Lord Thomas, have said, of getting at the problem of implementation. We have been talking about how the criminal justice system is failing women for a very long time, and it really is now time to take action. I will finish with a quote from Baroness Howe of Idlicote, who has now retired from your Lordships’ House. She said, back in 2008:

“I must say that I have become tired of seeing this matter brought to debate again and again”.—[Official Report, 31/1/08; col. 805.]


Surely it is time for action.

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[Lord Cormack (Con)]

My Lords, I was very glad to add my name to my noble friend Lord Blencathra’s amendment, which he has moved with a convincing and passionate speech. I agree wholeheartedly with all that he said. My own views were reinforced in the last debate when the noble Lord, Lord Macdonald of River Glaven, talked in rather chilling terms about his visits to women’s prisons; I have heard similar accounts from others, both within your Lordships’ House and outside. It seems to me that we add to the uncertainty, mental tension, fear and all those other things if we house in women’s prisons those who are physically male but proclaim themselves female.

Of course, the safety of a prisoner, no matter their sex, is important to us all—a point that some of us touched on in Committee. I put forward then a suggestion that perhaps these people should be separately treated and looked after. After all, the aim of prison—I had two prisons in my former constituency—is often lost sight of: sending to prison is the punishment and rehabilitation is the aim. You are much more likely to get rehabilitation if the atmosphere is calm and subdued and there is not rampant fear in the prison. I believe very strongly, as does my noble friend Lord Blencathra, that the solution is to treat those who are particularly vulnerable in such a way that we take as many safeguards against their vulnerability as possible. To me, that leads logically to a solution where those who were born as women, and who are women, are in women’s prisons, and those who are still physically male are, if necessary, housed in a separate unit.

I do not buy, any more than does my noble friend Lord Blencathra, the talk of travelling great distances. Of course the aim should always be to try to have prisoners as close as possible to their loved ones and the community that they know, but it is not always possible. My noble friend Lord Blencathra referred to the fact that there is no women’s prison in Wales, and so a woman sentenced to jail there can be sent 150 or more miles away. We also have to remember that people are sent to prison because they have done something detrimental to society. It may be a heinous crime or not such a heinous crime, but having to travel a certain distance may be part of the price one has to pay.

I am a great believer in community restorative justice. I believe that we send far too many people, both male and female, to prison, and that we should be much more adventurous in the way we treat those who are not, by their physical violence, an obvious danger to society; of course, they must be securely housed, wherever and whoever they are.

I am grateful to my noble friend the Minister. I attended the teach-in on Zoom—it would have been much better if only we could all have sat down together, but it was on Zoom. I do not doubt for a moment my noble friend’s passionate commitment, but I had to say to him on the day that I was wholly unconvinced; I think he respected that.

I believe that we have to grasp this problem. Like my noble friend Lord Blencathra, I had dozens of letters and messages from those who had listened to the debate —it is remarkable how many people suffer from insomnia in this country—and who wanted to say thank you for standing up for womanhood and motherhood and for not making women feel disparaged. We went through this last year, when we had the extraordinary maternity Bill to, quite reasonably, give maternity leave to the Attorney-General. As a Bill designed to give maternity leave, it did not mention the words “woman” or “mother” until it had left your Lordships’ House, where we talked a little sense into it.

This is something that we have to grasp as a society. I believe that it is totally wrong to put women in a threatened position by having housed next to them people who are still physically male. Protect them all, yes, but, in particular, let us have regard for the women. I believe that the amendment put before us by my noble friend Lord Blencathra this evening is worthy of your Lordships’ support. If it does not receive that support tonight, this is an issue that will not go away; it is a series of big accidents waiting to happen if we are not careful. I am glad to support my noble friend’s amendment.

[Lord Pannick (CB)]

My Lords, I am very happy to stand up for womanhood and motherhood, but this amendment is very puzzling indeed. What it would mean is that even if a person born male has lived as a woman for 20 years, even if they have undergone sex reassignment surgery, even if they have a gender recognition certificate, and even if they are assessed as posing no risk whatever to other women, the Home Office would be obliged either to place them in a men’s prison or put them in specially segregated facilities. The former option of putting them in a men’s prison would be a disaster; it would obviously be enormously dangerous to such a person. Placing them in specially segregated facilities would be demeaning; it would fail to recognise what legislation in this country has recognised for the last at least 15 years: that people who happen to be born in the wrong sex deserve our compassion and deserve recognition of their position.

I suggest to the House that these issues are far better addressed, as they are at the moment, by Home Office policy that considers the circumstances of the individual case, rather than by broad amendments of this nature, whatever the good faith of those who put them forward.

[Lord Hope of Craighead (CB)]

My Lords, I warmly support what my noble friend Lord Pannick has just said. It is a great mistake, certainly at this stage in our affairs, to attempt to legislate in this matter. It may be that the prison estate will be big enough in years to come so that one can segregate by gender reassignment in special prisons of their own, but we are nowhere near that at the moment and the proper way to deal with this is to rely on the discretion that exists at present.

It is quite striking if you look at the wording of the amendment—it makes no distinction between whether we are talking about male or female prisoners, but very different situations arise depending on which of these two characteristics you are considering. It makes no distinction for the time that the person may have lived in that new assignment. It makes no distinction, either, for the extent of the surgery and the appearance of the person over time as the reassignment process takes place.

It is very difficult for those of us who, I assume, have not faced this to appreciate the intense emotional problem that people who believe that they have been born into the wrong sex undergo. It is a very emotional matter, fighting against characteristics you have acquired that you do not believe belong to you. The way you deal with it is to believe that you are actually of the sex—of the gender, I should say—that you think you should have been. That involves not only reconstruction of the body but a mentality designed entirely to live the new life, which you believe is the one you should have been given. It strikes me as very cruel, if I may use that expression, to treat these people as if they had not reassigned themselves. It is not a choice. They are driven by the characteristics they acquired which forced them into their decision.

I make these points just to emphasise that we are dealing here with a very difficult problem. The offender requires as much consideration on the grounds of safety and emotional distress as the people around them in the prison in which they are placed. Legislation is not the way to go, certainly not at the moment. I personally have complete confidence in the way that the prison authorities are dealing with this very difficult problem at the moment.

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Monday 10th January 2022 Lords Chamber

I am not arguing that point; I think that videos can, in some circumstances, be suitable. However, I am arguing that when judges or magistrates make that decision, they do it on an informed basis, through a health or a mental health screening. That is the purpose of Amendment 97D. Nevertheless, I will not be pressing my amendment to a vote.

[Lord Pannick (CB)]

My Lords, Amendment 97CA is in my name and those of the noble and learned Lord, Lord Judge, and the noble Lord, Lord Marks. Unfortunately, the noble and learned Lord, Lord Judge, cannot be in his place this evening because he has been attending a funeral.

Amendment 97CA would remove from the Bill the power in Clause 170 for a court to give a direction that the jury can participate in a criminal trial remotely; that is, in a different location to the judge, counsel and witnesses so long as all members of the jury are in the same place. Jury trial is, of course, one of the cornerstones of our criminal justice system—whether you approve or disapprove of the Bristol jury’s decision to acquit the defendants of criminal damage to the statue of Edward Colston. We need to consider very carefully indeed proposals to amend the way in which the jury performs its functions.

I share the concerns about this proposal that have been expressed by the Bar Council and the Law Society. They say that the success of a jury trial depends in large part on a good working relationship of trust and confidence between judge and jury. The jury needs to be attentive and mindful of its onerous responsibilities; the judge needs to watch the jury to ensure that its interests are protected and it is properly performing its responsibilities. Counsel—both prosecution and defence counsel—need to engage with the jury during the trial. All this is so much harder to achieve through a video screen—indeed, noble Lords will be aware of that from when they have participated in parliamentary proceedings through a video screen over the last two years.

This proposed power requires a strong justification. I listened carefully—I always listen carefully—to what the noble Lord, Lord Wolfson, said in support of this power in Committee and indeed in discussions that I have had with him since, for which I am very grateful. The Minister concedes—indeed, he positively asserts—that this Government have no plan to encourage the use of remote juries. Indeed, they have had no such plans in the nearly two years since Covid-19 began to blight our lives. What the Minister says is that it will be good for Ministers to have this power, just in case it proves useful at some stage in the future. I suggest to noble Lords that it is a very bad legislative practice to confer broad powers on Ministers, particularly powers as controversial as these, just in case they might prove useful at some stage in the future.

The Minister will no doubt give assurances to the House about whether and when these powers might be used. The insuperable difficulty with legislating on such a basis is that the noble Lord, Lord Wolfson, cannot bind his successors in office, who may well have different principles and different policies.

I say to the House that these proposed powers, if ever used, would pose a real threat to the effective administration of justice. There is no current need for them.

[Lord Carlile of Berriew (CB)]

My Lords, I strongly support the submissions made by the noble Lord, Lord Ponsonby, in relation to Amendment 97C. In doing so, perhaps I can give a small insight as someone who has conducted hundreds of jury trials, some of them involving young people—often very naive young people who are in an enormous amount of trouble.

I feel it necessary to say something to the House about the interaction between counsel and the young client. Typically during the course of such a trial, and in my experience this happens more with children on trial than with adults on trial, either, if one is lucky enough to have one there, one asks one’s instructing solicitor to have a word with the client in the dock on some evidence that has just been given, or—if, as is common now, there is no instructing solicitor there—counsel just walks a couple of rows behind to the front of the dock, takes instructions from his or her client about a factual proposition that has just been made and then continues or commences a cross-examination based on the instructions that have just been taken. In other words, there is a dynamic, living, ongoing 24/7 interaction between the advocate and the advocate’s client.

In the last nearly two years we have all been through the process of conducting virtual meetings. In most respects that has worked very well, but, since we have had the experience of going back into real meetings—on and off, admittedly—we have rediscovered the importance of interaction on the details that occur during a discourse. In my view, it could prove very damaging and delaying in trials to have to have that sort of discourse with a client by asking the judge to turn off the devices so that a private consultation can take place. That could look very odd to a jury, as compared to a quick word two rows behind. I therefore ask the Minister to reflect upon the dynamics of a real trial. I should add that not only have I conducted a lot of trials but for 28 years I was a part-time judge. As a judge I have conducted a lot of jury trials, and the same points arise from the judge’s position.

So far as the amendment from the noble Lord, Lord Pannick, is concerned, I agree with him for a similar but different reason. It is based on a relationship, the relationship between the judge and the jury. It is absolutely commonplace—it happens every hour of every day—for the judge to make some kind of contact with the jury. It may be eye contact; it may be an aside; it may be a little joke. You would not believe how much juries laugh at judges’ jokes; judges make jokes and get far greater laughs than any comedian I have ever seen. All this is part of the process of creating a living instrument through a trial that really works on a human basis. If there are to be any jury trials conducted with the jury in a different place from the judge, that must be most exceptional. If the judge and jury were in the same place, it may be that—and this would still have to be exceptional—the judge might come to a factual decision that a fair trial could be held, but it would be a very rare instance where that would work.

If I may put it as high as this, I advise the Government not to go down this road. In my view, it has the danger of disruption, increasing appeals and actually destroying the very essence of the holy grail, as it were, that is part of our criminal justice system: the jury trial. Part of that essence is the relationship between the judge and the jury, and that really cannot be conducted remotely.

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Moved by

[Lord Pannick]

97CA: Clause 170, page 193, leave out lines 16 to 18 and insert—
“(2) Subsection (1) does not apply to a jury or to members of a jury.”Member’s explanatory statement
This amendment would prevent a criminal trial proceeding with the jury (or members of the jury) in a different physical location to the judge, witnesses or counsel.

[Lord Pannick (CB)]

My Lords, I am grateful to all noble Lords who have contributed to this important debate, not least the Minister. In the debate your Lordships have heard that there is, at least, a very substantial risk that the jury being remote from the rest of the trial would damage its ability to perform its functions. The question, then, is whether there is a compelling need for this proposed new power. The Minister very fairly confirmed that there is no current intention to implement the proposed power. I suggest that if and when there is any such intention, that will be the time to determine whether it is appropriate, in such circumstances, to confer such a sensitive and controversial power. Ministers should not be given such powers on a so-called future-proofing basis—to use the Minister’s term. I wish to test the opinion of the House.

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Wednesday 12th January 2022 Lords Chamber

[Lord Pannick (CB)]

My Lords, I do not share the concerns that have just been expressed. It seems to me that Amendment 104E makes it very clear what the mischief is; it is making it a condition of access to accommodation that sexual services are provided. We all know what that means, and juries will know what it means. It is a real mischief and it needs to be addressed. If the noble Lord, Lord Ponsonby, divides the House on Amendments 104E and 104F, he will certainly have my support.

However, I have concerns about the drafting of Amendment 104F. My concern is that in several places it uses the concept of “arranging” an offence—not simply facilitating the offence but arranging or facilitating it. I do not really understand what the difference is and what is added by “arranging an offence”. I am not myself aware of other contexts where that concept has been used. It is a very vague concept and, I think, a rather undesirable one.

I am also troubled by proposed new subsection (3)(c) of Amendment 104F, which makes it an offence if a publisher is informed that its actions

“had enabled the arrangement of or facilitated an offence”

and it then

“failed to take remedial action within a reasonable time.”

All that is extremely unclear and uncertain as to the ingredients of the offence. No doubt that can be dealt with at Third Reading if others share my view. I emphasise that I support the amendments, but I draw attention to those matters that cause me concern.

[Lord Hope of Craighead (CB)]

My Lords, I have one point to add to what has been said by my noble friend Lord Pannick. The word “publisher” troubles me a bit. It is not defined in the amendment, and I am not quite sure what that word is directed to. Is it somebody in business as a publisher or somebody who simply publishes something, describing the activity rather than the trade? The amendment would be improved if something was said in it as to what exactly is meant by the word “publisher”.

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I will finish by returning to my example of the 16 year-old with a scooter helmet. If the relevant police officer in 1972 had decided not to charge him with this offence—a first and minor offence—but to caution him instead, 40 years later he would have been absolutely entitled and eligible to stand and perhaps be elected as a police and crime commissioner. Should an outstanding individual who has served his community for years with distinction and who holds the local police and crime commissioner to account as a member of the police and crime panel have his freedom to stand or not decided by a decision taken 40 years earlier, no doubt on the hoof, as to whether there should be a £5 fine or a caution? Perhaps nothing demonstrates more clearly the irrational and weird state of affairs that exists in this area. It is time for the Government to move on this issue. I beg to move.

[Lord Pannick (CB)]

My Lords, I respectfully agree with everything the noble Lord, Lord Bach, said. I will add just one point. The problem is not simply the unfairness to the individuals concerned, although that is bad enough, but the damage to the public interest that otherwise eligible and fine candidates are prevented from serving. It is a basic principle of our constitutional law that Parliament can do anything it likes, but there are limits, and we ought to get rid of this manifest absurdity.

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To conclude, the Government remain firmly of the view that the current disqualification criteria should remain and any dilution risks undermining public confidence in policing. I therefore invite the noble Lord to withdraw his amendment.

[Lord Pannick (CB)]

Before the noble Lord sits down, may I ask him this question? Why is it that public confidence requires, in his view, this absolute rule, when I can serve as a Supreme Court Justice even if I was convicted of an imprisonable offence at the age of 17 or 18?

[Lord Sharpe of Epsom (Con)]

With regard to public confidence, I go back to what I said earlier: this was originally designed with cross-party support and with the assistance and advice of police chiefs.

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[Baroness Coussins (CB)]

My Lords, I remind the House of my interests as vice-president of the Chartered Institute of Linguists and co-chair of the All-Party Parliamentary Group on Modern Languages.

I am very grateful indeed to the Minister for the interest he has taken in the issue of court interpreters and my concerns about the weaknesses of the present system, as well as for his willingness to meet several times and discuss candidly the detail of my amendment. This dialogue has been very constructive and leads me to be hopeful that we can reach a positive outcome.

My amendment seeks to establish minimum standards for court interpreters based on their qualifications, experience and registration with the National Register of Public Service Interpreters—NRPSI. Obviously, I am not going to repeat the detail of the case I set out in Committee, but perhaps I could just comment on the response I had at that stage from the noble and learned Lord, Lord Stewart of Dirleton.

There seemed to be three main reasons for rejecting my amendment. The first was that the MoJ system is already fit for purpose. For example, the noble and learned Lord said:

“All interpreters are required to complete a justice system-specific training course before they are permitted to join the register.”—[Official Report, 22/11/21; col. 659.]


This refers to the MoJ’s register. My understanding, however, is that that course takes four hours to complete, which does not strike me as remotely adequate for such potentially demanding and specialist work. It remains the case that the current MoJ register will admit people who would not be considered sufficiently qualified or experienced to be on the NRPSI—nor, indeed, on the Police Approved Interpreters and Translators scheme. The DPSI at level 6 is considered by all the specialist professional bodies in the field to be the correct minimum qualification for any court interpreting work.

The noble and learned Lord, Lord Stewart, also claimed that the MoJ system is fit for purpose because the complaint rate is less than 1%. I had claimed that the failure rate following spot checks was 50% but, in our subsequent meetings and correspondence, the noble Lord, Lord Wolfson, has clarified that the 50% figure I quoted in Committee applied only to referrals of quality-based complaints, and that the overall failure rate is actually 5% of all assessments. I still think that a failure rate of 50% after a referral from a court or mystery shop is unacceptably high. I would also contend that even an overall rate of 5% out of hundreds of thousands of assignments each year could potentially lead to a significant drain on the public purse through the costs of rescheduling adjourned hearings or keeping defendants in custody for longer—not to mention the avoidable stress and confusion for victims, defendants and witnesses.

Secondly, the noble and learned Lord, Lord Stewart, thought that my amendment fell short because it would not be right to take a one-size-fits-all approach, given that there are various levels of case complexity. But I agree with that: the point is explicitly acknowledged in my amendment, which specifies that the number of hours’ experience required should reflect case complexity and, crucially, should be agreed between the department and “relevant professional bodies”. In discussions with the noble Lord, Lord Wolfson, over the past few weeks, it has been repeatedly pointed out to those of us supporting this amendment that there are no fewer than 1,000 different types of assignment. The mind boggles—well, mine does anyway. I would certainly love to see a list spelling out exactly what those 1,000 different categories are.

Thirdly, the obstacle of the rules on public procurement was raised as a reason why my amendment’s provision for the NRPSI registration was unacceptable. I still find this a bit odd and confusing as an argument, as the NRPSI is not a membership organisation, nor a supplier. It is worth remembering that it was established at the request of the judiciary in the first place after the interpreting calamity of the Begum case. It is surely just akin to the professional registers in many other fields, such as teaching, medicine or law, from which we would always expect and require practitioners to be drawn. There appears to be at least one significant precedent in that the Metropolitan Police Service mandates that all its listed interpreters must have continuous NRPSI registration. Of its annual 25,000 face-to-face assigned interpreters, only 2.5% are not NRPSI registered, and then for a very good reason—for example, to do with the need for a rare language speaker or the need for a super-speedy appointment in highly urgent or dangerous situations.

I accept, of course, that this whole system is complex and that there are inherent challenges to any solution that I have not touched on today, such as the supply chain of interpreters. I also acknowledge that the wording of my amendment may not be perfect, although I have tweaked it since Committee to try to build in a transition period, as suggested in Committee by the noble Lord, Lord Marks. But I have been encouraged by the approach of the noble Lord, Lord Wolfson, in our discussions in that he acknowledges that if there are improvements that could or should be made, it would be sensible for them to be made before the current contract is due to be retendered in 2023. The challenge, of course, is to get to the bottom of precisely what those improvements are, and I am extremely concerned that there should be no more delay in establishing and achieving them than absolutely necessary. The current contract expires in October 2023, so presumably a revised tender will need to be issued some months before that in order to achieve a seamless transition.

With this in mind, we raised with the Minister the possible option of conducting a detailed and independent inquiry into exactly what the standards of qualifications and experience and other matters should be. I am hopeful that the Minister might be able to say something about that proposal when he comes to reply today. Such an inquiry would need to be conducted on a genuinely independent basis and cover all aspects of the MoJ’s responsibility for interpreting services, with a commitment to apply its findings to the next contract. I believe that such an independent inquiry would also have the credibility to help attract back into public service the many hundreds of professional interpreters who have left because of low pay, bad conditions or a lack of acknowledgement of their professional status. This exercise would have the potential to make a long-term strategic impact on the service, as well as knocking into shape the terms of the next contract. I look forward to the Minister’s response and beg to move.

[Lord Pannick (CB)]

My Lords, I pay tribute to the noble Baroness, Lady Coussins, for pursuing this important matter, and to the Minister for his engagement on a number of occasions with those of us who support the noble Baroness and are concerned about this. During those discussions, I expressed the view that it is striking that there is such a radical difference of view between the noble Baroness, Lady Coussins, with her enormous expertise in this area, and civil servants as to how the system is working in practice. I therefore suggested to the Minister that one way forward in this important area would be for him to agree that there should be an independent assessment—an independent inquiry—of an outfacing nature that can rely on the expertise of the noble Baroness, Lady Coussins, and others in order to inform the department as to the way forward. That seems to be a constructive way forward, and I very much hope that the Minister will be able to say that the department is prepared to do that.

[Lord Hope of Craighead (CB)]

My Lords, I too pay tribute to my noble friend Lady Coussins for the determination with which she has pursued this argument. As a user of the court, it is crucial to have complete confidence in the interpreter. Most of us do not have the complete gift of language—which perhaps my noble friend has—over a wide range of languages. You have to rely on the interpreter; confidence in what the interpreter is doing is crucial to the way the proceedings are conducted, so the highest standards should be aimed for. I must say, I am surprised that it is taking so long for the advice my noble friend has offered to be accepted and put into practice.

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[Lord Paddick (LD)]

My Lords, as my noble friend Lord Beith explained, the amendment would extend the position of trust to include people who coach, teach, train or instruct on a regular basis in dance, drama and music.

I am sure the Minister will correct me if I am wrong, but I seem to remember him saying in Committee that the Government wanted evidence that these amendments were necessary before they were able to accept them. On 20 October 2021, the Guardian reported that a former ballet teacher and principal dancer at the English National Ballet had been sentenced to nine years in prison for more than a dozen counts of sexual assault against his students—I think that is dance. On 30 September last year the Sun reported that a drama teacher had been convicted of sexually abusing girls as young as 15 over five years, abusing his position of power and targeting teens who wanted to become actresses by sexually assaulting them at the theatre group he had set up in Northamptonshire—I think that is drama. The Edinburgh Evening News reported on 22 December, just last month, that a retired music teacher in Scotland had been sentenced to eight years’ imprisonment for raping and sexually abusing former pupils—I think that is music.

There is the evidence. What is stopping the Government now? We strongly support my noble friend’s amendments.

[Lord Pannick (CB)]

My Lords, the noble Lords, Lord Beith and Lord Paddick, make a very strong case. Clause 46 addresses a serious mischief: abuse of trust to gain sexual advantage. Like them, I cannot understand why this is to be addressed only in the context of sport and religion and not in the context of dance, drama and music.

I have one other question for the Minister. I also cannot understand why sport is only to be covered in relation to games in which physical skill is the predominant factor. What if there is an abuse of trust by someone who is training young people in chess or bridge? Why is it not equally objectionable if they take sexual advantage of those young people? Why should that not be included within the scope of the offence?

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank the noble Lord, Lord Paddick, for giving those very good and relevant examples of abuses of trust in dance, music and drama. I remember the points that the Minister made when we had this debate in Committee: he did indeed ask for examples, and I thank the noble Lord for providing them.

Surely, the similarity in everything that we are talking about is the nature of the relationship. It is a trusting relationship where a lot of time may well be spent alone with the young person, and it is open to abuse. The Minister had other arguments about why dance, music and drama should not be included, and I would be interested to hear how he rehearses them, given that there is unanimity in the views expressed in today’s debate. I do not know whether the noble Lord will press his amendment to a vote—I think probably not—nevertheless, I will listen to the Minister’s answer.

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Although, as I made clear in Committee, the Law Commission is currently reviewing the law around the non-consensual taking and sharing of intimate images, including whether photographs of partially covered breasts and breastfeeding should be considered intimate images, we believe that this amendment will ensure that parents are protected from non-consensual photography and can feel safe to breastfeed in public ahead of the publication of the Law Commission report in spring this year. Obviously, when the Law Commission reports, we will look at its report and the whole area of this law as a unit. For those reasons, I beg to move.

[Lord Pannick (CB)]

As the Minister said, the noble Baroness, Lady Hayman, is unable to be in her place tonight. She has asked me to say that she joins me in thanking the Minister, who has engaged with us sympathetically on this topic and secured this welcome change in the law. That is a tribute to his persuasive powers not just in this House but in government.

I hope that the Minister’s remarks tonight will receive as much publicity as his speech in Committee, which, as he said, featured not just in Hansard but elsewhere. He mentioned his appearance—or his remarks’ appearance—on “Have I Got News for You”; well, the news tonight is that this amendment has achieved a welcome change in the law that will be appreciated not just by breastfeeding women but by their partners and relatives.

[Lord Blencathra (Con)]

My Lords, I intervene to ask my noble friend a question. I listened carefully to what he said and I completely support the amendment, but does it go far enough? I cannot find any excuse or justification for anyone who is not a family member to take any photographs of a woman breastfeeding. It would seem from what my noble friend said on the amendment that mens rea has to be proved—there has to be a proven intent to get sexual gratification from it—but why should that be the case? In my view, there can be no justification for anyone outside the family—a stranger—to want to photograph a woman doing this. This is a simple question from my simple little mind.

Police, Crime, Sentencing and Courts Bill

Lord Pannick Excerpts

Report stage
Monday 17th January 2022 Lords Chamber

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I tried to say that I think we do not want to muddle up too many things. The Bill might have been brought forward in order to deal with the popular revulsion at things such as the M25 sit-ins or getting on top of the Tube, and we have heard that from a number of noble Lords.

The point about this set of proposals, though, and things such as the triggering noise, is that they do not solve that problem. That is what drives me mad. The second lot of amendments—which were brought in anti-democratically in terms of process—at least looked like they referred to that set of egregious demonstrations. So that is that bit.

One thing that has been said which I think is very important is that there is a fractious atmosphere in society, which the noble Baroness, Lady Stowell, talked about last time we had this discussion, which is that people feel very strongly about some of the issues of the day. They are not prepared to always say that they support the right of demonstration; they think that something else is going on.

But one thing they definitely think is that the police are biased. They think that the police are erratic. Some people will say, “Well, the police won’t intervene because they’re all too busy taking the knee or driving around in rainbow-coloured vans”. Other people will say, “The police are acting like far-right stormtroopers protecting different types of people.” There is a public debate going on about the role of the police.

So, my objection to these amendment is that not only does it concentrate on noise, which nobody has ever complained about—who has brought that up?—but it puts the police in an even more invidious position. I do want to know how the Government will deal with that. The SOAS policy briefing, which I thought summed it up well, said that the Bill

“compels the police to make decisions about whether protests can go ahead, and therefore forces the police to become a visible and controversial actor in ordinary political debate.”

I think that this will make the position of the police much worse, so even if you are not on the side of the right to protest with no ifs and no buts—as I am—from the Government’s point of view and the Home Secretary’s point of view, who say they are doing it to help the police, they are actually putting the police in a position where they are wandering around assessing noise levels and therefore choosing which demos go ahead, which everybody will think is to do with politics and not procedure. So there seem to me to be some unintended consequences of that approach.

[Lord Pannick (CB)]

My Lords, I share many of the concerns that have been expressed—particularly the absence of a sufficient mischief here and the absence of proper definition of the ingredients of the offence.

I will add just one further point: the ability to demonstrate, and the ability to demonstrate while making a noise, is a very valuable safety valve in our civil society. If you close off that safety valve, you are going to cause a far greater mischief than is currently the case.

Police, Crime, Sentencing and Courts Bill

Lord Pannick Excerpts

Consideration of Commons amendments & Lords Hansard - Part 2
Tuesday 22nd March 2022 Lords Chamber

[The Lord Bishop of Leeds]

My Lords, I was not going to add to the argument, but—and I do not want to depress the noble Lord, Lord Coaker—I have never been on a demonstration. At least, I have not been on a demonstration that was protesting against something. I have been on two marches that were very noisy and were accompanied by bands and so on, and which were protests for something. On the definitions of these things, I would love to know whether we are talking about protest, which is assumed to be against something, or a call for something, which is entirely positive. If the phenomenon is the same, what are we faffing around with this for? I just do not understand. I also got arrested for busking, which could be related to noise but I was only 20 and it was on the Paris metro, so it does not count. But being serious, I do not understand why the Government are pushing this when there is no call for it and it is unlikely to achieve anything because the definition is so vague.

[Lord Pannick (CB)]

My Lords, my objection to the noise provisions, in addition to the points made by the noble Lords, Lord Coaker and Lord Paddick, is the complete uncertainty of the concepts the Government wish to introduce into legislation. What level of noise is unacceptable, what level of disruption is unacceptable, and how will the organisers of a protest control the noise generated by the people demonstrating? What are they supposed to do in these circumstances? Enacting legislation of this sort will inevitably cause problems for the police, raise expectations that cannot be met and—I declare my interest as a practising barrister—undoubtedly lead to prolonged and expensive litigation that will result in the conditions being overturned.

[Baroness Wheatcroft (CB)]

My Lords, on the first Sunday after the invasion of Ukraine, I joined the protestors in Trafalgar Square. They were peaceful but noisy. It may well be that there were some minor oligarchs—maybe even friends of the Prime Minister—living in those new and very expensive penthouses overlooking the square, and I would like to think that they were annoyed. Unfortunately, I suspect that they have double glazing. However, the right to protest and to cause a degree of annoyance to a few people is surely something that Ukrainians would be amazed we were even thinking of curtailing.

I absolutely believe the Minister when she says that the Government have no intention of curbing that right, but this will be on the statute book if we allow it to go through, and not every Government might be quite as benevolent as the one we are currently living with. For that reason alone, we should absolutely support the amendment of the noble Lord, Lord Coaker. It is extraordinary that we are even contemplating this. It is like the Elections Bill. These are clauses which we are promised will be used in only the most innocuous of fashions. However, they give power to future Administrations to do things that none of us in this Chamber, or indeed at the other end, would like to see happen. For that reason alone, we should just say no—and what is more, we should say no time after time.