Police, Crime, Sentencing and Courts Bill

Lord Ponsonby of Shulbrede Excerpts

Committee stage & Lords Hansard part one
Wednesday 20th October 2021 Lords Chamber

More broadly in society, and this has been hinted at, there is a crisis of authority. We have to ask a much deeper question about why people might want to punch a policeman and why people in the emergency services are treated with disrespect. To be honest, just adding on prison sentences or making that kind of point will not achieve what the Government want, even though I am sympathetic to their aims.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I will open by discussing first some of noble Lords’ contributions on their amendments.

The noble Lord, Lord Paddick, spoke to his Amendment 10. The amendment is about preparing sentencing guidelines for assaulting an emergency worker, or along those lines. My experience as a sitting magistrate is that those guidelines are not available at the moment so we use the old guidelines for assaulting a police officer as the guidance. However, I reassure him that whenever I sentence people I invariably make it explicit that part of the sentence, or maybe part of the uplift, is due to the role played by the person who was assaulted. So although it may not have been expressly set out in legislation about emergency workers, if it concerns a teacher or something like that, I will say that it is a very serious matter and I have taken that into account in the sentence. Nevertheless, I understand the points that the noble Lord made.

The amendment by the right reverend Prelate the Bishop of Durham, who spoke on behalf of the right reverend Prelate the Bishop of Gloucester, seeks to expand the definition of “emergency worker” to include all prison staff, and he gave some very moving examples of chaplains, educators, instructors and healthcare workers. I think he has seen some of the same briefing that I have, which says essentially that many of those people are saying that they have never seen it so bad in terms of assaults on those people working in prisons.

As is often the case in Committee on Bills in this House, the debate went wider. I listened carefully to what the noble Baroness, Lady Fox, said about being cautious about having a hierarchy of people who work in public service in one way or another. Nevertheless, I also took into account what my noble friend Lord Bach said: there is a role for sending a message about the Government responding in some way, although that does not necessarily mean increasing sentences themselves; there are other ways of responding that may be more effective.

I turn to Amendment 9, which I have put my name to, and I thank the noble Earl for tabling it. As well as sitting as a magistrate in London, I am also co-chair of the Justice Unions Parliamentary Group here in Parliament and I have had a lot of lobbying on this matter, as I know other noble Lords have too.

The noble Earl explained the practice of “potting” in prisons. It can be done by prisoners who are mentally ill or, as he explained, by other prisoners as part of a tactic to punish officers who are targeted by particular groups of prisoners. He explained the circumstances where it may have a relatively minimal effect on the offender if they are towards the end of their sentence.

There is a widespread perception among prison officers that they have been neglected by the Government and that the CPS and the existing discipline structures within the prisons, and indeed visiting judges, do not take the practice of potting sufficiently seriously. In fact, on various TV programmes about working in prisons, we can all see, as I have, prison officers being potted. In fact, I have a magisterial colleague whose niece is a serving prison officer and, only a few months ago, she was potted herself. Of course, this is a completely disgusting and disturbing thing to happen. I hope that it will not reduce her commitment to the job of being a prison officer, but I have to say that I do not know; it might be one of the reasons that some officers choose to resign from the service.

There are many issues facing the Prison Service, which we have debated many times: high turnover of staff, pay and conditions, inexperienced managers, a change in the retirement age—the list goes on. I suspect that the noble Earl is right to anticipate that, in his answer, the Minister will say that the practice of potting could be charged in any number of ways and may well argue that it is covered by existing legislation. But the point that the noble Earl was making is that it simply is not taken seriously enough. The addition of a separate, specifically defined piece of legislation outlining this practice, making it more difficult for the authorities to minimise, would show that the Government value prison officers. This is an opportunity, I would say, for the Government to demonstrate that they value prison officers.

I do not know what the noble Earl plans to do at further stages of this Bill. This is such an egregiously disgusting practice and it is a tactic used in prisons; this is a specific way of responding to that tactic, which is within the Government’s hands in this Bill.

Police, Crime, Sentencing and Courts Bill

Lord Ponsonby of Shulbrede Excerpts

Lords Hansard - part one & Committee stage
Wednesday 27th October 2021 Lords Chamber

[Lord Paddick (LD)]

My Lords, I rise to support the noble Baroness, Lady Meacher, and I am very grateful to the noble Baroness, Lady Chakrabarti, taking us back to very late on Monday night, if the Minister remembers, when we were discussing Clause 15, on the disclosure of information. The Minister—I think, from memory, although it was late—implied that the disclosure of information was voluntary and that the clause was there simply to facilitate the disclosure of information. In challenging the Minister in that, I quoted from Clause 17.

I can be brief. Clause 17 enables the Secretary of State, if satisfied that a specified authority, educational authority or youth custody authority has failed to comply with the duties to collaborate or disclose information—including, presumably, sensitive personal information and information covered by a duty of confidentiality—to direct the authority to comply and enforce her direction through a mandatory order. That is what Clause 17 says.

I have already explained at length why professionals should use their professional judgment—as the noble Baroness, Lady Chakrabarti, just said—within existing policies, procedures, practices and protocols, rather than being forced to divulge sensitive personal information when it is not, on balance, in the public interest to do so. For example, there will often be a greater good to be derived from maintaining a relationship between, say, a youth worker and a young person at risk of becoming involved in serious violence than from divulging sensitive information to the police. All authorities dealing with these issues are committed to preventing and tackling serious violence. They may, from time to time, have a different perspective on the problem, or a different view on the best way to achieve what we all are desperately seeking to do.

This clause is one of the reasons why so many organisations believe that the Bill is really about a police-led enforcement approach, because it is the Home Secretary who can force them to comply, rather than the public health, multiagency, multifaceted approach that has been so successful in preventing and tackling knife crime in Scotland. Can the Minister give examples of where public authorities involved in preventing and tackling serious violence have obstructed efforts to achieve those objectives? If not, why is this clause necessary? We believe that Clause 17 should not stand part of the Bill.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, this group starts with government Amendment 72, which I will say a brief word about. The amendment requires the Secretary of State to obtain the consent of Welsh Ministers—not just consult them—before giving a direction under Clause 17 to a devolved Welsh authority. I understand that the change was requested by the Welsh Government, and we support it on this side of the House.

I turn to the debate on whether Clause 17 should stand part of the Bill, which was tabled by the noble Baroness, Lady Meacher, who introduced it, and the noble Lord, Lord Paddick. Their explanatory statement says that:

“The purpose of this amendment is to explore the extent of the Secretary of State’s powers to issue directions under this section and the consequences of failure to comply with such a direction.”


A number of very searching questions have been raised, and I have a few questions myself. It would be helpful if the Minister could give some more information on what a “direction” might be and what it might consist of under this clause. The central point made by both the noble Baroness, Lady Meacher, and the noble Lord, Lord Paddick, was about the context of police-led enforcement rather than a more equal arrangement between other agencies such as education and the National Health Service.

In the House of Commons, the Minister said that it is envisaged that this power will be used extremely rarely. Nevertheless, could the Minister give an example of when this power might be used and what checks might be in place when it is used? What would the prior steps be before a direction is considered? How would an authority’s progress in acting upon a direction be measured? Further, can the Minister say something about how the Government see this power working in practice?

I thought the noble Baroness, Lady Meacher, raised a particularly interesting question about what the sanction might be if a public servant fails to comply with an order to disclose information. My noble friend Lady Chakrabarti also spoke of the rare disputes between professionals and how these may be resolved by direction from the Secretary of State, rather than through the courts. She gave a historical context, if you like, to that status of professionals making their own judgments.

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[Lord Paddick (LD)]

My Lords, in moving Amendment 73, I will speak also to Amendment 74 in my name.

Clause 18 states that those authorities that are, under this chapter of the Bill, under a duty to prevent and tackle serious violence

“must have regard to guidance issued by the Secretary of State”.

However, in the Bill, the only people the Secretary of State must consult are Welsh Ministers. As we will see in a later group, when it comes to similar guidance in relation to offensive weapons homicide reviews, Clause 31 requires the Secretary of State to consult

“persons appearing to the Secretary of State to represent review partners”

and

“such other persons as the Secretary of State considers appropriate.”

That is in addition to Welsh Ministers.

We on these Benches believe that the Secretary of State should also consult representatives of the authorities that will be subject to the guidance, and such other persons as may be appropriate to consult. That is the intention of Amendment 74. We also believe that such guidance should be statutory—that is, contained in regulations—to enable Parliament to scrutinise the guidance before those involved become subject to it, as set out in Amendment 73. I beg to move.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we support the amendments put forward by the noble Lord, Lord Paddick. On Amendment 74, we believe it is vital that the Government should consult front-line organisations on the content of the guidance. They are the ones who know how this will, or will not, work in practice and their expertise is the driving force behind the duty. The Government have of course published draft guidance on this, and I ask the Minister whether this guidance is being consulted on.

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[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the noble Lord, Lord Paddick, has made it clear that these are probing amendments. The noble Lord, Lord Beith, has just expressed scepticism about the number of initiatives which the Government have put forward in this section of the Bill.

Having said that, we support this part of the Bill on offensive weapons homicide reviews. Amendment 75 raises the question of what happens if a death is already covered by an existing review mechanism, and not duplicating reviews. When this question was raised in the other place, the Minister said:

“To avoid duplication of work, the Bill provides that these new offensive weapons homicide reviews will be required only where there is not an existing statutory requirement to review the homicide”.—[Official Report, Commons Police, Crime, Sentencing and Courts Bill Committee, 27/5/21; col. 268.]


Clause 23(5) provides that a review is not required under this chapter if a review of the death is already taking place under different arrangements. If I understand it correctly, I think this meets one of the questions raised by the noble Lord, Lord Paddick, in his amendment.

Amendment 76 deals with data protection. It would prevent data being shared for these reviews if it breaches an obligation of confidence or any other restriction other than the Data Protection Act. These issues were debated in detail on Monday in relation to the serious violence reduction duty. Obviously, data sharing is absolutely key to a homicide review to allow us to identify and learn lessons from the death, and to decide on actions to take in response. However, as raised in the earlier debate, we must know how this is to be balanced with safeguards.

Clause 29 provides that a person may not be required to disclose information under this chapter that they could not be compelled to disclose in High Court proceedings. It would be helpful if the Minister could talk us through the specific provision of potential High Court proceedings.

Amendment 77 is based on a recommendation of the Delegated Powers and Regulatory Reform Committee. The DPRRC has said that guidance on this chapter of the Bill provided by Clause 31 should be subject to parliamentary scrutiny and done through a statutory instrument subject to the negative procedure. We support the committee’s suggestion and call on the Government to look carefully at all the committee’s recommendations.

[Lord Sharpe of Epsom (Con)]

I am grateful to the noble Lord, Lord Paddick, for explaining his amendments to the provisions in the Bill which establish offensive weapons homicide reviews. Before I turn to the specifics of the amendments, it may assist the Committee if I first set out the context and rationale for the introduction of these reviews. Noble Lords asked a lot of questions and I will do my best to get to all of them. If I have missed any, I will write to noble Lords.

Every homicide is a tragedy and the Government are committed to doing all they can to prevent the senseless loss of life and tackle serious violence. We are naturally disturbed by data showing that homicide has risen by about a third in England and Wales between 2014-15 and 2018-19. We have also seen that homicides involving offensive weapons now make up a large and growing proportion of all homicides—approximately 354 out of 732 in 2019. Homicide is now the fourth leading cause of death for men aged 20 to 34, behind suicide, drug overdoses and car accidents. Yet there is currently no legal requirement to formally review the circumstances around the majority of homicides involving an offensive weapon.

This provision will require local agencies to consider the circumstances of both the victims and perpetrators during an offensive weapons homicide review, and identify lessons that could help prevent future deaths. By deepening our local and national understanding of homicide and serious violence, together we can improve our response and ultimately save lives.

The amendment would change the definition of a “qualifying homicide” whereby, alongside the other requirements already set out in Clause 23, an offensive weapons homicide review would be applicable only if no other mechanism is available to review or hold an investigation or inquiry into the death. We agree with the sentiment of the amendment that it would not be necessary or proportionate to require the review partners to conduct an offensive weapons homicide review where the homicide already meets the conditions for an existing review—for example, a domestic homicide review—as this would involve duplication of work and create an unnecessary burden on the review partners, yet produce the same outcomes. However, we do not consider the amendment necessary as Clause 25 already provides for the relationship between offensive weapons homicide reviews and other review requirements to avoid duplication of effort, including disapplying the duty to conduct an offensive weapons review in certain cases.

The noble Lord, Lord Paddick, cited coroners’ inquests as an example of existing reviews that would preclude a homicide from qualifying for a review under Chapter 2 of Part 2 of the Bill. We should remember that inquests are designed for a different purpose. They are legal inquiries into the cause and circumstances of a death, and are limited to the four statutory questions of who, where, when and how or by what means a person came about their death. Further to this, in many homicides where an offensive weapon is used, there will not be an inquest because the criminal trial will answer the statutory questions and an inquest will not need to take place.

The noble Lord, Lord Paddick, also asked if consultation with coroners had taken place at an official level. It has and that will continue during the design phase.

Police, Crime, Sentencing and Courts Bill

Lord Ponsonby of Shulbrede Excerpts

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

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

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

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

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

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

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

[Lord Ponsonby of Shulbrede (Lab)]

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

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

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

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

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

My Lords, I thank all noble Lords who have spoken in this debate, which has been very constructive. I thank my noble friend Lord Moylan for tabling the amendments. I applaud the noble Lord, Lord Cashman, for promoting the need for balance, and the noble Lord, Lord Ponsonby, for his concluding words.

I say at the outset that the Government do not disagree with my noble friend’s view that people should not be inhibited from saying what they think, provided that it does not transgress the legal framework that this Parliament has put in place. Noble Lords would all be concerned if the activities of the police were—even if inadvertently and quite possibly for the best of motives—having an adverse effect on particular individuals who had committed no crime. If that possibility were having a chilling effect, as the noble Lord, Lord Pannick, said, or causing people to temper their quite lawful remarks, that would be a most unsatisfactory state of affairs.

That is my starting point. I will try to set out some of the background to the issues raised by the amendments that are before noble Lords. My noble friend Lady Noakes asked: how have we got here? It is a key legacy of the Macpherson inquiry, set up to consider the issues surrounding the murder of Stephen Lawrence, and is intended to give the police the means to understand tensions within communities before they escalate to serious harm.

As the name implies, the data pertains to incidents that are not crimes. It can include location data to know where repeat incidents of apparent tension and hostility might occur—for example, outside a place of worship. In this respect, the data is vital for helping the police build intelligence to understand where they must target resources to prevent serious crimes that may later occur. The importance of such intelligence has been illustrated where its use could have prevented real harm. The tragic case of Fiona Pilkington and her daughter, subjected to persistent hate and abuse and where the police failed to draw the links to repeated incidents of harassment, is a prime example.

Of course, non-crime hate incidents may also include the collection of personal data. Some of these records will include an accusation of hate crime that has been made against a person but was not proven. I know there has been concern that such data might appear in enhanced criminal record checks, which are required for jobs such as working with children and vulnerable adults, and that a person could be inappropriately disadvantaged for expressing a sentiment that is in no way criminal.

Precisely to guard against that possibility, the disclosure of non-conviction data in such checks is covered by statutory guidance issued by the Home Office to chief officers of police. This makes it clear that the police should disclose such information only after careful consideration and when it is proportionate and relevant to the job in question. Data of this kind can be disclosed only on the say-so of a senior officer, who should also consider whether the individual concerned should be given the opportunity to make the case that the information is not shared. Individuals also have the right to request an independent monitor to carry out a review of whether information is relevant to the role for which they are applying.

In practice, it is rare for the police to disclose non-conviction information of any kind: only 0.1% of enhanced certificates included such information in 2019-20. However, I fully understand that the public are concerned with how the collection of non-crime hate incident data might infringe fundamental liberties, particularly free expression, and may harm a person’s future prospects. However, I do not think that it is as simple as saying that the issue could be resolved through the introduction of more stringent regulations governing the processing and disclosure of data. We need to avoid unintended consequences through any reform of this practice. First, we need to ensure that we do not tie the hands of police in collecting the non-personal location data that I describe, and which can be vital in building an understanding of hotspots where serious harm might occur; this takes us back to the point made by the noble Lord, Lord Cashman, about balance.

Secondly, it is important to remember that the process of determining whether a crime has occurred is not always linear or simple. While the law on hate crime is clear, the process of determining whether an offence was committed may not be. The use of non-crime incident recording can exist in the grey space between the police making initial inquiries and making records such as this, and a decision to take no further action due to lack of evidence, or where a suspect cannot be identified. Non-crime hate incident records often form part of the normal record-keeping of early criminal investigations.

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[Baroness Harris of Richmond (LD) [V]]

My Lords, my Amendment 110A is grouped with my noble friend’s amendments, as we have just heard, and is about bail principles. I bring it forward at the suggestion of the Police Superintendents’ Association and thank it for its help in doing so. In particular, I thank its president Paul Griffiths, with whom I have worked over a number of years, including on this issue in a previous police Bill; sadly, nothing has changed.

At the heart of every investigation is the requirement on police to collate, review and examine the evidence that is gathered. This should be without prejudice and the police are expected to pursue lines of inquiry that gather the facts, whether the facts support the victim’s account or that given by any suspect. For those investigations that require CPS authority, the information presented must allow the full-code test to be applied so that a decision can be made by the CPS as to whether or not the case progresses through the criminal justice system.

To ensure that the investigation is effective and efficient, it should be free from interference from factors that would seek to pervert the course of justice or cause a victim, witness or suspect to provide false evidence to the police, whether under duress or otherwise. The imposition of proportionate, appropriate, legal and necessary pre-charge police bail allows for the protection of the victim, suspect, witnesses and the general public, Correctly applied and checked, police bail is vital in ensuring that the investigation can progress fairly and comprehensively. It should be used only to protect and never to punish. Its imposition should be subject to appropriate review and audit procedures to ensure that the system is fair and maintains public confidence.

Currently, as we have heard, the breach of pre-charge police bail does not constitute a separate offence for the purposes of the PACE custody clock. If a person is arrested for breach of bail, the police will have to use the remaining time on the custody clock which relates to the substantive events for which they were bailed.

The current proposal in the Bill is that the custody clock will pause if a suspect is arrested for breaching police bail. In the majority of cases, the police will not be in a position to make a decision about whether that person on bail is charged for the offence for which they are on bail. The outcome is often release from custody with the same conditions, simply with a reiteration that the bail conditions should not be breached. Currently the police have less time to investigate the offence, and the risks to the investigation remain. The police would ask that any breach be regarded as a separate offence that can be charged on its own merit, if appropriate, using the established rules of evidence for offences.

Imposing pre-charge police bail can be significant in its impact on the human rights and liberty of a suspect and, as such, there must be a process that allows challenge and review. The primary decision-maker should always be the custody sergeant, as they are independent from the investigation. They are also responsible for the welfare and treatment of detainees, and they work on systems that allow for a clear and auditable rationale to be recorded and scrutinised.

The suspect and/or their legal adviser should always have the right to object to conditions, as they do with PACE reviews or extensions, and to have these objections noted on the record with the rationale clearly communicated. They should also have the conditions altered or amended if circumstances change, and that can be done in writing to a custody inspector. The suspect should always have the right to ask the courts to review bail conditions that they feel are inappropriate.

We have previously discussed appropriate authority levels for the time that a suspect remains on police bail. That should reflect the requirements of modern-day investigations such as forensic and e-forensic evidence.

I reiterate that pre-charge police bail should be imposed only where it is necessary and proportionate and protects individuals, the public and the investigation. Police should ensure that it is for the minimum time necessary to complete the investigation, that the rationale is clearly communicated to parties as appropriate and that an appeals process is in place—in addition, with a review process to ensure that the investigation is being carried out diligently.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the two noble Lords who have spoken have fully introduced their amendments. Amendment 110ZC, from the noble Lord, Lord Paddick, would provide that a bail period could be extended only for a period of six months at a time, and not nine, so it would reduce the potential extension period before referral to a magistrates’ court.

I remind the Committee that I sit as a magistrate, and I occasionally do those hearings where I am asked to extend pre-charge bail. It is an interesting process for a magistrate because you see far more serious cases than you would in the normal course of events; it is the extremely serious cases where the police are looking for an extra period. They are often computer-based cases, in connection with child pornography-type offences. One common scenario that I see as a magistrate is that the police have made no progress in their investigations. That may be through a lack of resources or through them having other priorities, but, either way, there are often requests to extend the pre-charge bail period, sometimes for a matter of years, where the court or the magistrates making this decision are not given a particularly good reason. I would be interested to hear the Minister’s response to that amendment because it would inevitably put further pressure on the police to make progress on any individual case before it was brought to the magistrates’ court.

The noble Lord’s Amendments 110ZA and 110ZB would require custody officers to record case-specific reasons why bail and bail conditions were necessary and proportionate. I recognise the scenario that the noble Lord gave, of a cut-and-paste approach, and I would be interested in the Minister’s response to the points that he made. The final amendment in the name of the noble Lord, Lord Paddick, is Amendment 110B, requiring the police to publish annual statistics on the number of people released under pre-charge bail and the number released under investigation.

The noble Baroness, Lady Harris, spoke to her Amendment 110A, which would create an offence of breaking the conditions of pre-charge bail. It would supplement the powers of arrest available where conditions were broken, and the offence would be a summary offence. The noble Baroness went into some detail, which I thought was persuasive. She quoted the Police Superintendents’ Association, which said in evidence to the Commons Committee that

“bail conditions are imposed and then suspects continue to breach those bails. Of course, those bail conditions would be there to protect victims or even the wider public. It could be extremely useful to us for that to be an offence in its own right.”—[Official Report, Commons, Police, Crime, Sentencing and Courts Bill Committee, 18/5/21; col. 31.]

This matter was raised in the House of Commons, where it was spoken to by my honourable friend Sarah Jones in the context of Kay’s law, a well-known domestic abuse case where an abusive partner killed Kay while he was on pre-charge bail. I will not rehearse the speech that Sarah Jones made but it was very powerful.

The Minister’s response to the request, which we see here in Amendment 110A by the noble Baroness, Lady Harris, was that she wanted to look at a wider review of civil orders that could potentially be put in place as well as greater data collection, rather than specifically making an additional criminal offence. It is interesting to note that the Centre for Women’s Justice came out with a specific proposal whereby a breach of a bail condition triggers the presumption that the police will impose a domestic abuse prevention notice and apply to court for a domestic abuse prevention order. Of course the breach of a DAPO would be a criminal offence, so it would effectively create a “two strikes and you’re out” process.

The Minister, Victoria Atkins, whom I have always found very helpful when I have spoken to her about these and related matters, spoke about reviewing a greater array of civil orders, such as a stalking protection order or sexual risk order. It would be helpful if the Minister could say how long that review is likely to take and whether we are going to get any proposals at later stages of the Bill. I acknowledge that there are a number of potential ways of closing this loophole and that the amendment put forward by the noble Baroness, Lady Harris, is a particular proposal and there is a wider context. However, there is an urgency to this issue. There is an opportunity in the Bill to address that lacuna, if I can put it like that, and I look forward to the Minister’s response.

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[Lord Paddick (LD)]

My Lords, we strongly support my noble friend Lord Beith. He has clearly explained his amendment: persons other than those mentioned in the Bill are in positions of trust. Although there is no evidence of widespread concern about instructors in dance, drama or music abusing their positions of trust, there are examples and fairly recent high-profile cases. My noble friend explains that either we should leave it to the courts to decide whether someone is in a position of trust or a more comprehensive list is required that is not limited, as my noble friend Lady Brinton said, to the examples in the amendments.

I agree with the noble Baroness, Lady Jones of Moulsecoomb, to some extent, although one could imagine that children are more vulnerable in certain scenarios and one-to-one situations than in others. But we support the amendments in the name of my noble friend Lord Beith.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we too support these amendments, and I too found the introduction from the noble Lord, Lord Beith, to be comprehensive. The brief in front of me asks why some youth activities are included and others are not, which is the point the Minister will have to address when he winds up this brief debate. I will not repeat those points about why certain activities might be included and others might not, and I am sure that everyone who has spoken in this debate wants to achieve the same end, but there are different mechanisms to do that.

I agreed with the noble Baroness, Lady Jones of Moulsecoomb, who, as she said, somewhat unusually found herself in agreement with potentially using Henry VIII powers to amend legislation. While listening to this debate, I remembered the biography of a very famous English composer that I read recently, just a few months ago. He would fall foul of these regulations and would very likely go to jail on the basis of that biography.

I hope this problem is not widespread, but it is something that people are far more alert to these days than they were in the past. It is right that the Government should ensure that the appropriate structures are in place in each of the activities for which young people get support, so that, if things go wrong, the coaches or whoever is involved can be held to account in an appropriate way.

Police, Crime, Sentencing and Courts Bill

Lord Ponsonby of Shulbrede Excerpts

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

[Lord Paddick (LD)]

My Lords, I rise to move Amendment 123A in my name. I apologise to the Committee. If I had had my wits about me, I would have grouped it with the previous police bail amendments. I am grateful to Transform Justice for bringing this issue to my attention and for its help and support in drafting this amendment.

The Government continue to place tighter restrictions on when courts can remand children in custody. Those are much stronger than the restrictions currently placed on the police when they decide whether to remand a child in custody to court. Court criteria, most of which do not apply to the police, include that: the child must be between 12 and 17 years of age and be legally represented, other than in exceptional circumstances; they must have been charged with a violent or sexual offence or have been charged with an offence where an adult would have received a custodial sentence of 14 or more years; or they have a recent history of absconding while remanded; or they have a history of committing imprisonable offences while on bail; and there is a real prospect of a custodial sentence for the offence in question. In addition, remand in custody must be necessary to protect the public from death or personal injury or to prevent the child from committing further imprisonable offences.

The police remand many more children in custody than the courts. In 2019, the year with the most recent data available, over 4,500 children were remanded in police custody compared with 884 children remanded in custody by the courts. Some 60% of children remanded in custody by the police had been charged with non-violent offences and only 12% of those remanded in custody by the police went on to be remanded in custody by the courts. Two-thirds of children remanded in custody by the police do not receive a custodial sentence.

In Clause 132, the Bill suggests further strengthening the restrictions on courts remanding children in custody, including that the history of breaching bail or offending on bail must be “significant”, “relevant” and “recent”. If detention is being considered for the child’s own safety, this would be possible only if the risk cannot be safely managed in the community. It would have to be “very likely” that the child would receive a custodial sentence rather than a “real prospect”. Courts would also be under a statutory duty to record their reasons for imposing custodial remand, including a statement that they have considered the welfare of the child in their decision and that they have considered alternatives.

The Bill as drafted does nothing to tighten the restrictions on the police remanding children in custody, or even to bring them into line with existing court restrictions. Amendment 123A intends to bring the Police and Criminal Evidence Act criteria for police remand of children into closer alignment with the court remand criteria. I beg to move.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I am very grateful to the noble Lord, Lord Paddick, for moving his amendment. As the Committee might be aware, I sit as a youth magistrate, usually at Highbury magistrates’ court. I have to say that I was not aware of the difference in the remand criteria; I should have known but I did not. I also thank Transform Justice for bringing this to my attention. The noble Lord has very thoroughly explored the differences in the number of youths remanded by the police versus those remanded by the courts. I would be interested to hear what the Minister has to say in response.

[Baroness Williams of Trafford (Con)]

I thank the noble Lord, Lord Paddick, for raising this important issue of children remanded in custody. I quite agree that police custody is not a suitable environment for children and that they should not be detained there unless it is absolutely necessary.

The provisions introduced by this Bill will amend the “tests” set out by the Legal Aid, Sentencing and Punishment of Offenders Act 2012, also known as LASPO, which must be satisfied before the court remands a child to custody. These are intended to ensure that custodial remand is used only as a last resort, where there are no other options and it is necessary to protect the public.

Before the courts get involved, if a child is charged with an offence, Section 38 of the Police and Criminal Evidence Act 1984 provides that the police must release them either on bail or without bail pending their appearance at court, unless one or more specified conditions apply. These conditions are that the child’s name or address are not known or are not believed to be genuine; there are reasonable grounds to believe the child will not appear in court to answer bail; the detention is believed to be necessary to prevent the child committing an offence, causing physical injury, loss or damage to property, or interfering with the investigation of offences; or the detention after charge is believed to be necessary for the child’s own protection or in their own interests.

I would like to reassure the Committee that there is already a degree of alignment between police bail and court bail, and the police custody officer must have regard to the same considerations as those that apply when a court is considering whether to grant bail under the Bail Act 1976.

I acknowledge the concern that many more children are remanded post charge by the police than are remanded by the courts while awaiting trial, as the noble Lord, Lord Paddick, outlined, and that this may give rise to consideration of risk-averse decision-making by the police. I do not necessarily believe this to be the case. It is important to remember that post-charge detention by the police serves a different purpose from youth remand in the courts, so it is unrealistic to expect an exact alignment of the conditions required to make decisions.

With this in mind, it is perfectly possible for the police to make a decision to remand a child post charge and for the courts to make a decision not to remand the same child to custody, and for both these decisions to be reasonable based on the evidence and circumstances before each party. In the overwhelming majority of cases, a child remanded by the police will be held for no more than 24 hours.

I also acknowledge the concern that police remand is a driver of custodial remand—that is, for example, that a court is more likely to view a child remanded by the police as dangerous. I am not aware of any data showing a causal link between police remand and custodial remand. A comprehensive evidence base comparing the circumstances whereby police bail after charge decisions are made under Section 38 of PACE would be needed, giving consideration to the threshold for grounds to refuse bail and whether custody officers have access to and apply all relevant information when making a bail decision.

Before I conclude, I take this opportunity to put on record my thanks and the Home Office’s gratitude to Brian Roberts, who was the department’s expert on the Police and Criminal Evidence Act. Sadly, he died last month after 50 years of public service as a police officer and then an official in the department. He is greatly missed by his colleagues.

On the basis of my remarks, I hope the noble Lord will be happy to withdraw his amendment.

Police, Crime, Sentencing and Courts Bill

Lord Ponsonby of Shulbrede Excerpts

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

[Baroness Chakrabarti (Lab)]

My Lords, I speak to Amendment 276, to which I have added my name. Suspicionless stop and search is a significant problem for community relations in this country. It is a significant problem for trust in the police. In recent days, we have rightly given a great deal of time and attention on all sides of your Lordships’ House, including in this Committee, to trust and confidence on the part of women, and young women in particular, but we must not forget other aspects of broader trust and confidence, including the issue of young black men and policing.

Decades after the Lawrence inquiry, we still need to keep returning to this issue. No power or set of powers has probably done more to weigh against the strides made by the late Sir William Macpherson and by everyone across politics, including former Prime Minister, Theresa May, to try to address problems with stop and search. No power has been more problematic than that of suspicionless stop and search in general and Section 60 in particular.

This is really not a partisan issue. Your Lordships know that, long before I came to this House, I was a civil liberties campaigner and not popular with Governments of either stripe in relation to powers such as these. In my view, there has been an authoritarian arms race about law and order in this country for too long. No Government are perfect. No Opposition are perfect. This is a good moment to look at stop and search. There is no better parliamentarian to be leading us in this conversation than the noble Lord, Lord Paddick.

The problem with suspicionless stop and search is this. No human is perfect; therefore, no police officer is perfect. Stop and search, conducted by humans of other humans, even with reasonable suspicion, is problematic, but there is no choice if we want to combat crime and investigate offences that have happened or that might yet take place. We have to have powers to stop and search. They are problematic, even when based on reasonable suspicion because what is reasonable suspicion? Who do we think is going equipped? Who do we think meets the profile of somebody who committed an offence a few hours ago? Of course, it is hard for any citizen, including constables, to rid themselves of all the baggage that comes with being in this—or any—society. Those problems are so compounded when reasonable suspicion is taken out of the equation.

Section 60 of the Criminal Justice and Public Order Act gives the power—which is triggered by a senior police officer, but a police officer none the less—effectively to change the criminal law in an area for the period in which that power is triggered. In that particular part of town, there is effectively a suspicionless stop and search zone. We are often talking about urban areas, and areas with a very high density of people from certain communities. The noble Lord, Lord Paddick, can correct me if I am wrong. Within that area, young black men in particular know that that is a stop and search zone. Their first encounters with the police service are often very negative.

Because of the rise of the internet, mobile phone use and videos of incidents, this material is now there to be viewed. I have seen some very disturbing scenes of quite young boys being stopped and searched, without suspicion, on streets not many miles from here. These young boys and men do not have the protections that they have post-arrest in the police station. Arrest is based on reasonable suspicion. Officers usually stop a young man. The noble Lord, Lord Paddick, gave the statistics. If you are a young black man you are many more times likely to be stopped and searched than if you are a young white woman, let alone a middle-aged woman like me.

Sometimes officers will be situated in a particular place. I understand their reasons. They are worried about knife use, for example. Some young men are being stopped on a routine basis. Sometimes big, burly officers make a human wall around a boy of perhaps 13 or 14 years-old. I have seen the pictures. People in that community—bystanders, if it happens in the daytime—will be trying to remonstrate with the officers. They will be held back. This young man—13, 14 or 15 years-old —is having his first encounter with the authorities. He is frightened. He is behind this human wall of big, burly officers. There is not even reasonable suspicion that he has done something wrong.

It seems to me that this is very dangerous—and it is not an occasion where I can even blame the police. It is an occasion when I have to look to the statute book itself, because this is about legislators, not police officers. I have been critical in other debates, and I am afraid that I will have to be critical about some decisions that the police have made. But this is a legislative problem, because legislators from both major parties have allowed this regime to be triggered for suspicionless stop and search, and it has created problems over many years. It really is time to address this.

This seems like a radical probing amendment from the noble Lord, Lord Paddick, but if Section 60 were removed from the statute book, what would be the consequence? There would still be ordinary, democratic, rule of law-based powers to stop and search with reasonable suspicion. That is a fairly low threshold in any event, I would argue, but this ability and power to designate particular areas—everybody knows where those areas are and who is affected in them—would go. I cannot think of a more positive signal and progressive step for any Government, any party and any legislator who cares about race relations in this country, and cares about rebuilding trust in policing and the rule of law.

So once more I find myself thanking the noble Lord, Lord Paddick, and I feel that I will do so again a few more times in this Committee.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I have some questions for the Government on Amendment 129, in the names of the noble Lord, Lord Paddick, and the noble Baroness, Lady Jones of Moulsecoomb.

Drugs policy and the drugs trade have come up in our debates on this Bill as part of the debate on the serious violence reduction duty, particularly regarding child exploitation and county lines. It will come up again shortly when we look at the groups of amendments on road safety and dangerous driving under the influence of drugs and alcohol. There is a complexity of links in multiple areas of policy, be they poverty, health or criminal justice. On the serious violence reduction duty, the Government’s stated aim is to reduce serious violence through a public health approach. So my question to the Minister is: what work is being done alongside those plans to look at a coherent public health approach to drugs policy? As with serious violence, there needs to be a focus on what reduces harm, not just what deals with the symptoms.

Amendment 129 is specifically about removing the power of the police to search people for drugs for personal use only. The noble Lord, Lord Paddick, gave a very informative history lesson, if you like, on his part in the “no arrest” policy in Brixton. I thought I might update what he was saying with my perception as a magistrate who sits in criminal and youth courts in London. I can say with reasonable confidence that I very rarely see in front of me, for the possession of class B drugs alone, either a youth or an adult who is of good character. I really cannot remember the last time I saw that in a court in which I was sitting. In my experience, when that is charged, other matters are charged as well, or the amount of drugs found on the person is at a much higher level but, nevertheless, the CPS chooses to charge that person only with possession rather than possession with intent to supply. Nevertheless, it is an interesting amendment, and the noble Lord raised a number of interesting points about the appropriateness of that power of the police under Amendment 129.

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[Earl Attlee (Con)]

The noble Lord, Lord Ponsonby, made a very interesting speech. For about the first 40 years of my life, I lived in north-west London and—on this discrimination point—I have never been stopped and searched by the police. I have had my vehicle stopped a few times, but I can perfectly well understand why the police did it. So it is quite an interesting point on discrimination.

[Lord Ponsonby of Shulbrede (Lab)]

My noble friend asked me a very interesting question, but I am not sure that I can answer it. I suppose that the short answer is that I am very conscious that this is a divisive issue and one that the police themselves have strong views on. They do not agree with each other—I have certainly heard a range of views within the police about its effectiveness or its blanket use being ineffective. I think that the answer is that the Government need to look at this issue very sensitively and be very aware of the distrust that it breeds within communities, particularly ethnic minority communities.

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

My Lords, I thank all noble Lords for their contributions and thank the noble Lord, Lord Paddick, for explaining the amendments, which relate to stop and search powers. We can always rely on him to share his experience on the ground. I also thank the noble Lord, Lord Ponsonby, for his very thoughtful contribution at the end.

Amendment 129 seems to be a step in the direction of decriminalising drug possession, but I do not think that the noble Lord has ever disguised his wish to see that happen—ditto, the noble Baroness, Lady Jones of Moulsecoomb. As the noble Lord will know, this Government have no intention of decriminalising drug possession. Our approach on drugs remains clear: we must prevent drug use in our communities, support people through treatment and recovery, and tackle the supply of illegal drugs.

The noble Lord gave the statistic from Matt Parr saying that 63% of searches were for drugs. He is absolutely right on that. We make no secret of our intention to disrupt drug markets, because that is often part of the police’s strategy for tackling serious violence, and possession searches may come in response from reports from CCTV or the public or from factors that officers more obviously encounter on patrol, such as drug transactions. The noble Lord, Lord Ponsonby, seemed to reflect that in talking about the types of issues that he sees in the magistrates’ courts.

There is a substantial body of scientific and medical evidence to show that controlled drugs are harmful and can damage people’s mental and physical health, and our wider communities. The decriminalisation of drugs in the UK would not eliminate the crime committed by the illicit trade, nor would it address the harms associated with drug dependence and the misery that this can cause to families and communities. I bet that everyone in your Lordships’ House can think of someone who has been affected. The police therefore have a wide range of powers at their disposal to deal with drug-related offences, including the powers to search and obtain evidence under the Misuse of Drugs Act 1971. How the police choose to pursue investigations is an operational decision for chief constables, but we are clear that we expect them to enforce the law.

I return to the question from the noble Lord, Lord Ponsonby, about what we are doing to assist young people away from drugs. He will know that we invested tens of millions of pounds in the National County Lines Coordination Centre; he will also know that we do not wish to criminalise young people—our prime aim is to move them away from a life of drugs and some of the criminal activity that can sit alongside it.

On Amendment 276, the police should have the powers they need to keep the public safe and combat serious violence while ensuring that these powers are used fairly and within the law. The Government fully support the police in the fair use of stop and search to crack down on violent crime and protect communities. It is only right that these powers are used to stand firm against criminals who break the law.

Every knife taken off our streets is a potential life saved. While I am grateful to the noble Lord, Lord Paddick, for his statistics, I will give some of my own. In 2019-20, stop and search removed over 11,000 weapons and firearms from our streets and resulted in over 74,000 arrests. Crime statistics have previously shown that increasing proactive policing such as stop and search is helping the police find more knives and arrest more criminals.

That said, the noble Lord is right to highlight the vital importance of ensuring that officers are using their powers based on intelligence and legitimacy, to ensure that the rights of the individual are upheld. Section 60 of the Criminal Justice and Public Order Act 1994 gives police the powers to stop and search individuals or vehicles, in anticipation of or after an incident of serious violence, to find offensive weapons or dangerous instruments. They do not need grounds to suspect that the person or vehicle is carrying these items.

Because of its suspicionless nature, the use of Section 60 must be limited in geographical scope and duration, and must be authorised by an officer of at least the rank of inspector. That is to ensure that these powers are used proportionately and only where necessary. PACE Code A sets out that use of Section 60 should be authorised only where there is a reasonable belief that serious violence may occur, and that this should be based on objective factors and led by intelligence. The authorising officer should communicate this intelligence to officers on the ground. When carrying out searches under a Section 60 authorisation, officers should search only individuals likely to be involved, having regard to the intelligence that led to the Section 60 being authorised.

Section 60 searches make up a tiny proportion of the stops and searches carried out by police officers: in the last year they were just 3% of all searches carried out. Despite its low level of use, the police tell us it is a vital tool to tackle serious violence. These powers can also act as a deterrent to prevent offenders carrying weapons, by increasing the perceived risk of detection.

That is why the Government announced, as part of the beating crime plan in July this year, the relaxation of the five voluntary restrictions on the use of Section 60. This follows a two-year pilot during which we gathered and analysed data from forces and community scrutiny leads on their perception of the changes, which told us that officers felt more confident using Section 60 during the pilot, and that the relaxations better reflected the operational reality of policing and the pressures and conditions officers face on the ground. It also showed that many forces had implemented their own best practices to reassure themselves internally that this power was being used legitimately and with accountability.

The noble Lord, Lord Ponsonby, pressed me on this and I will say that there are a number of legal safeguards, including statutory codes of practice and the use of body-worn video, to ensure that officers are accountable during a search, including any conducted under the powers in the Misuse of Drugs Act. We publish extensive data on these powers, which allow police and crime commissioners and others to hold forces to account. HMICFRS also inspects force level disparities and the use of stop and search as part of its regular inspection programme. I assure the Committee that no one should be subject to the use of stop and search powers based on their race or ethnicity, and that safeguards exist to prevent this.

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[Baroness Jones of Moulsecoomb (GP)]

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

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

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

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we too want to protect shopkeepers. I endorse the points made by the noble Lord, Lord Dholakia, backed up by the noble Lord, Lord Paddick. The noble Baroness, Lady Jones of Moulsecoomb, made an interesting point when she said it was not necessarily a mistake of law but in the application of the law that this problem has emerged.

I too received the briefing from the British Independent Retailers Association; its figures are stark. I also have the previous statements by Kit Malthouse, the relevant Minister. He has said that he is happy to look at the data to see what it tells us about the operation of the policy, now that we are four or five years in. I do not think there is any problem with us reviewing the data internally, deciding whether the policy is working and then promulgating some kind of best practice. However, in January 2021, in response to a Written Question on when the Government was planning to review the operation of Section 176, the Minister said that it would be part of a wider, post-legislative review of the Act but that no date had yet been set.

The point I want to make to the Minister is that there is some urgency on this. The system does not seem to be working very well. From my own experience as a magistrate sitting in London, I cannot remember the last time I saw a youth come to court for shoplifting—they never come to court for shoplifting; we see them for much more serious offences. I am not saying that they should be brought to court for shoplifting but that they are being dealt with in another way and it is questionable whether that alternative is appropriate. We do see low-level shoplifting in adult magistrates’ courts, but it tends to be by multiple, repeat offenders, who are part of a gang. We see that element of shoplifting, but we do not see occasional, low-level shoplifters in court very much. They are being dealt with in other ways, and this may be part of the problem.

[Lord Sharpe of Epsom (Con)]

My Lords, I am grateful to the noble Lord, Lord Dholakia, for tabling his amendment and for explaining it in considerable detail.

I start by expressing my support and respect for all those who work in the retail sector. Shops are the lifeblood of our communities and neighbourhoods. As the noble Lord pointed out, that fact was perhaps amplified by the pandemic. It is important that businesses should be free to trade without fear of crime or disorder. I recognise the significant impact that shoplifting can have, not only on businesses but on the wider community and consumers. It is vital that perpetrators are brought to justice. As the noble Lord, Lord Dholakia, pointed out, it is not a victimless crime.

Police, Crime, Sentencing and Courts Bill

Lord Ponsonby of Shulbrede Excerpts

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

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I have very much been in listening mode on this. Amendment 132B would require the oversight of the Secretary of State for police bodies to commission or deploy weapons, surveillance equipment or investigatory technology. I welcome the questions raised. All the speakers have thought about this matter far more than I have, and I look forward to the Minister’s response with interest. I do not know whether she is an expert on heli-tele, but I take the noble Lord’s point that technology as a whole is running ahead of regulation. That goes to the heart of the points made today. I also take the points made by the noble Baroness, Lady Hamwee, on the purposes of her committee in looking at the possible regulatory approaches, such as a hard or soft approach.

Things are moving very fast; we all know that. We are all challenged in our day-to-day lives in the way we communicate with people. This institution has been challenged in the last 12 months, and things have changed dramatically. With an open mind, I look forward to the Minister’s response.

[Baroness Williams of Trafford (Con)]

I thank the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Hain, for setting out their case for this amendment. I can do no better than echo the comments of the noble Lord, Lord Paddick, on heli-tele, which were absolutely to the point. I think the Committee is generally referring to some of the new, emerging technologies and the framework around them.

I have done quite a lot of work in Parliament on LFR and biometrics, but very little in this Chamber, so I am very pleased to have a chance to debate this with noble Lords this evening. I refer the Committee to some of the work I have done in the Science and Technology Committee on LFR, biometrics, forensics and so on. It makes for riveting reading.

We are really aware of the issues that noble Lords have raised. There are some links to the matters we debated on Monday relating to confidence in policing and the importance of policing by consent. We are mindful of the need to ensure that the police’s use of technology is appropriate, and it might assist the House if I begin by setting out some of the existing legal framework in this space. What noble Lords have talked about tonight covers a vast area, but I will give some of the headlines for a flavour of what we are doing.

The framework includes police common law powers to prevent and detect crime, the Data Protection Act 2018, the Human Rights Act 1998, the Equality Act 2010, the Police and Criminal Evidence Act 1984, the Protection of Freedoms Act 2012 and law enforcement bodies’ own published policies. This framework places important obligations on those responsible for the deployment of technology, including the need to undertake data protection and equality impact assessments, and has provisions to regulate automated decision-making where there are significant implications for the individuals affected.

I also want to assure the Committee that the Government recognise the importance of ensuring that there is strong evidence around the use of technology in policing. To this end, we supported the appointment, in June, of Professor Paul Taylor as the National Policing Chief Scientific Adviser. Ensuring that all technological developments in policing are based on good evidence and the best understanding of science is absolutely crucial. Professor Taylor chairs a police science and technology investment board, which demands rigorous quality assurance of all proposals. He is also represented on the relevant National Police Chiefs’ Council committees and is developing national research and development guidance with the College of Policing.

We also recognise the need for appropriate co-ordination of investment decisions across the policing landscape. Therefore, with oversight from the ministerially led strategic capabilities and investment board, we are supporting the development, mobilisation and implementation of the 10-year national policing digital strategy, to ensure that the right infrastructure is in place across policing to harness and exploit the benefits of data and analytical capabilities.

Work under way includes establishing an NPCC data board to promote a consistent approach to developing data literacy; assessing efficacy, ethics quality and standards; and establishing a central data office within the Police Digital Service, which aims to improve data management and sharing across policing. The data office will provide the essential infrastructure for the sector to ensure strategic direction, central co-ordination, and accountability on national expectations of locally held data. Work is also under way to develop a national data ethics governance model, building on the work West Midlands Police has done to establish an ethics committee to advise on data science projects. The national model will also be developed in collaboration with the Centre for Data Ethics and Innovation and the Home Office.

Police, Crime, Sentencing and Courts Bill

Lord Ponsonby of Shulbrede Excerpts

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

[Baroness Randerson (LD)]

My Lords, the noble Baroness has made a very strong point about an issue which applies only in a specific part of the country. Most of us do not have experience of this issue. As the noble Lord, Lord Berkeley, said, there is a more general trend in the use of bikes as cargo bikes—and, indeed, my own son also used to take his young children around in a little cart behind his bike. It used to worry me greatly. The girls no longer like to be reminded of it, but they seemed to think it was great fun at the time. Of course, the issue of insurance is important. It seems to me that the point the noble Baroness has made is that there is a long-overdue need for a review of hire services—vehicles for hire—and since the use of bikes is much more common these days, we really should include them in that review.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I too agree that the noble Baroness made a compelling speech, with which a lot of people who live in London will have a lot of sympathy. I also agree with my noble friend Lord Berkeley, who raised the issues of cycles for freight, insurance and how the very rapid development of small electric vehicles and bicycles expanding their remit in London is a wider problem that needs to be addressed. The noble Baroness, Lady Randerson, also made that point.

As I have said to the Committee before, I sit as a magistrate in London, very often in Westminster. I remember dealing with pedicabs a number of years ago. Those offences were brought to our attention by Westminster City Council. From memory—this is a number of years ago—it was usually to do with pedicabs being parked on pavements, with the police bringing people to court through the council and impounding some vehicles. I have not seen those offences for several years now. I do not quite know what has changed—perhaps Westminster City Council does not feel it has the power to do that anymore, I do not know; it is a moving target. Nevertheless, I think the central point of the noble Baroness’s amendment is powerful.

I do not know whether there are any practical problems with harmonising the regulations with the rest of England and Wales, so I look forward to what the Minister says on that point.

[Lord Sharpe of Epsom (Con)]

My Lords, I am grateful to my noble friend Lady Stowell for comprehensively setting out the case for these amendments, which relate to the regulation of pedicabs. As she pointed out, Clause 66 relates to motor vehicles which are defined as “mechanically propelled”. They are the most dangerous and cause the most harm, so it is logical that they are the focus of this clause.

The noble Lords, Lord Berkeley and Lord Ponsonby, and the noble Baroness, Lady Randerson, mentioned other types of similar vehicle that might be caught by this, so it is perhaps worth mentioning what the Government are doing on cycling offences. In 2018, we held a consultation to consider cycling offences causing serious injury or death, as well as reviewing existing cycling offences. The Government feel that any new offences applicable to cyclists, with or without a trailer, are best legislated for as a package, rather than piecemeal. Moreover, we believe that there should be a separate framework of cycling offences, as compared with motoring offences, as it may not be proportionate to apply to cyclists offences intended for drivers of motor vehicles and their corresponding penalties. The response to the consultation will be published in due course—I hope before the end of this year, but early next year at the latest.

The wider question of the regulation of pedicabs, including that of noise nuisance caused by sound systems located on pedicabs—which I agree from experience can be ear-splitting—is not a straightforward issue. In England, pedicabs generally fall under the taxi and private hire vehicle licensing regime, as various noble Lords have mentioned, in that they can be regulated as a hackney carriage—a taxi. The exception to this is London, where, as my noble friend Lady Stowell explained, they fall outside the existing taxi legislation. It should also be noted that taxi and private hire vehicle legislation is a devolved matter in Scotland and Wales, although the legislation that applies in Wales is the same as that which applies in England.

The Government are aware of the long-standing concerns that pedicabs contribute to safety and traffic-related issues in central London. The current situation in London means that there are few existing powers to control pedicab operations effectively. This has meant that pedicab operators, drivers and their vehicles are not licensed, there are no requirements for drivers to undergo criminal record or right-to-work checks, as there are in other industries, and there is no fare control. And there may very well be insurance issues, as the noble Lord, Lord Berkeley, mentioned.

The Government agree that it is in the interest of safety and fairness to passengers to fix this legal anomaly and, as my noble friend Lady Stowell noted, a Private Member’s Bill that would enable Transport for London to regulate pedicabs in London is currently being taken forward by Nickie Aiken MP—the Pedicabs (London) Bill. I am pleased to confirm that the Government intend to join the very long list pointed out by my noble friend and support this Bill. I am therefore happy to offer her a meeting with the Minister, my noble friend Lady Vere, to discuss this further, if she would like. I commend my noble friend for raising this issue. We agree that it needs to be addressed, and I hope she is reassured that the Department for Transport is on the case. For now, I hope my noble friend feels free to withdraw her amendment.

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[Lord Judge (CB)]

My Lords, I wonder whether I should say that I am not going to make a second speech polishing up my first. I apologise to my noble and learned friend Lord Hope that I got my words in before he did.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I have to say that I find myself in the somewhat invidious situation of supporting the Government. The Labour Party supported this clause in the other place; we agree that it fills a gap in the law and allows the high level of harm caused by these incidents to be recognised.

The debate has focused essentially on the possibility of imprisonment for careless driving, and the noble and learned Lord, Lord Hope, made it clear in his speech that that was the burden of his objection and the reason he was moving his amendment proposing that the clause do not stand part of the Bill.

The burden of the argument made by the noble Lord, Lord Thomas of Gresford, was that the mental element in the case of careless driving is no more than negligence and the noble Earl, Lord Attlee, said that that would be a momentary lapse, which would have a serious consequence. But when one looks at health and safety legislation, you can indeed have momentary lapses which have very serious consequences. Magistrates occasionally deal with health and safety legislation as well. In addition to that, as part of health and safety legislation that I have seen, it is about a more systemic approach to health and safety within the environment of the factory or whatever you are talking about. Nevertheless, there can be momentary lapses that lead to serious consequences and there is the possibility—although it may be unlikely—of a prison sentence for the director of a company who is responsible for health and safety matters.

As I introduce this, I acknowledge that I find myself in an unusual situation of supporting this element of the Government’s proposals. Nevertheless, I would hope that it would be a very exceptional case, where there is such egregious negligence, that resulted in a prison sentence, when the vast majority of cases are momentary lapses, possibly with tragic results. I would have thought that those types of cases would not result in a prison sentence.

[Earl Attlee (Con)]

My Lords, the good thing is that the party opposite is being consistent, because it introduced the offence of causing death by careless driving.

Police, Crime, Sentencing and Courts Bill

Lord Ponsonby of Shulbrede Excerpts

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

[Baroness Jones of Moulsecoomb (GP)]

I am. Sorry, ignore that. Strike that from the record. I will come back to that.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I was interested in the explanation of this amendment by the noble Lord, Lord Paddick. As he rightly said, there are all sorts of potential issues—one can think of electric cars—and reasons this may not be workable as it has been drafted. Nevertheless, the noble Lord made the point about the vulnerability of police officers when they are in this situation, and of course the vast majority of cars do use conventional engines at the moment.

The other point made by the noble Lord is that a driver is under no obligation to get out of the vehicle. I have to say that, in the current circumstances, if there was a lone woman in the vehicle and a lone police officer asked her to step outside, that may be problematic. Nevertheless, that is not the burden of the noble Lord’s amendment. He has raised an interesting point; we want to protect police officers in vulnerable situations, and I look forward to the Minister’s reply.

[Baroness Williams of Trafford (Con)]

My Lords, if I understand the noble Lord, Lord Paddick, correctly, this amendment is aimed at improving the safety of police officers at the roadside. I share his concerns and want to reassure him that the safety of police officers is vitally important to this Government, as is demonstrated by our programme of work on the police covenant. I will not echo the arguments made to the noble Lord by the noble Baroness, Lady Randerson, on the defects of his amendment, but I want to say that we are committed to ensuring that the police have the powers that they need to protect people.

The British model of policing is based on consent, and the exercise of police powers, including the Section 163 power, needs to be transparent, fair and legitimate to ensure that the public can remain confident in policing. I am supportive of the intention behind the extension of this power, but more evidence and consultation are needed to demonstrate that it would provide benefits to officers’ safety and build support for the effectiveness and legitimacy of the proposal to extend the power. I can say to the noble Lord that we will work closely with the National Police Chiefs’ Council, the College of Policing and the Police Federation to explore these issues further and consider what more can be done to improve officer safety at the roadside. On that basis, I hope that he will withdraw his amendment.

--- Later in debate ---

[Lord Berkeley (Lab)]

My Lords, I have added my name to this amendment. One of the most telling statistics is that there were 28,000 hit-and-run collisions in 2017, all involving failure to stop and report collisions that involved actual or potential serious or fatal injury. This number had increased by 43% since 2013—in only four years. That is a very significant increase and, as other noble Lords have said, the current maximum penalty for a hit-and-run collision is six months in prison which, as the noble Baroness said, might be all right in some circumstances, but not in others.

The other issue is that, now that most people have mobile phones in their cars, there should be a general duty to report collisions while at the collision scene. Yes, there are a few places in this country where there is not any signal, but very few compared to where there is; and if it is not possible, the driver or rider may subsequently report the collision and produce their insurance certificates, if appropriate, at a police station or to a constable. This should all be done within two hours of the collision, because 24 hours means that, if there were any risk of alcohol or drugs having an effect, that could be lost in that time. This is a really important amendment, and I would be interested if we could find some more up-to-date statistics on what has happened since 2017, because it is a very serious issue.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, my right honourable friend Ben Bradshaw spoke to his amendment, which was along similar lines, in the other place, to increase the sentences for this type of offence from six months to a possible 14 years. I agree with most of the points made by the noble Baroness, Lady Jones, and particularly her opening point: in general terms, I do not like sentence inflation. This is a very large potential inflation in sentences. Nevertheless, I take the point that she and other noble Lords have made, that a maximum of six months in custody for failing to report a serious or fatal injury during a road traffic accident seems like an unduly light sentence for the most extreme cases.

We have heard reference to the petition; I understand that it will be debated in the House of Commons later this month. I have a question for the noble Lord, Lord Paddick. I would be interested to know how this would interact with existing sentences. For example, if a person has committed an offence causing serious injury or death by dangerous driving, would the expectation be that they would also be sentenced to a number of years for not reporting the accident? How would the two charges work in combination with each other? I have an open mind on these amendments, and I look forward to the Minister’s response.

[Baroness Williams of Trafford (Con)]

My Lords, as noble Lords have explained, Amendments 161 and 166 relate to the offence of drivers failing to stop. We know that in a small number of cases, the failure to stop might be related to an event that leads to the death of, or serious injury to, another person, but in the vast majority of cases, convictions involve low-level traffic incidents. In an extremely small number of cases, there may not be any other evidence to connect the death or serious harm with the driver who fails to stop, meaning the only offence they have committed is that failure to stop. I understand the concerns raised, but these amendments potentially risk providing for a maximum custodial sentence of 14 years for failure-to-stop offences resulting in serious or fatal injuries in circumstances where there would not have had to be evidence of a causal link between the failure to stop and the death or serious injury.

What is more, these amendments cut across the basis for the current offence. I must stress that the offence of failure to stop and report is designed to deal with the behaviour relating to the failure to stop. The offence is not to provide an alternative route to punish an offender for a more serious but unproven offence.

Where there is evidence that the driver caused harm, there are a range of other offences, including causing death or serious injury by dangerous or careless driving, with which the driver can be charged. In these cases, the courts can treat the failure to stop as an aggravating factor that adds to the overall seriousness of the offending. Where there is evidence that the driver knew about the incident and took steps to avoid detection, they may be charged with perverting the course of justice, a common law offence that already carries a maximum sentence of life imprisonment.

Linking death or serious injury with a failure to stop as the cause would risk creating an unnecessary and unfairly severe offence. To take an example, where there was evidence of causing death by careless driving and failure to stop, the offender would face a maximum penalty almost three times higher for failure to stop than they would for causing death by careless driving—14 years compared to five years— even though the causing death offence requires proof of a fault in the standard of driving.

The law already imposes severe penalties for vehicle offences that lead to death or serious injury, but when doing so, a clear causal link must be proved between the driver’s behaviour and the outcome. The proposed amendment would essentially be equating, or in some cases exceeding, the seriousness of failure to stop with actual culpability for causing death or injury. That, as I have said but want to repeat, causes serious anomalies with other offences that could result in potential injustices, and it is why the Government cannot accept the amendment.

In relation to Amendment 166, which also seeks to amend the current offence, we are concerned by the potential impacts on what is a complex area of law. For example, it is unclear what impact replacing the word “accident” with “collision” would have; it might exclude incidents that are currently and rightly within scope of the existing version of this section. We also reiterate our objections set out above to the creation of the offence of failing to report where the collision caused foreseeable serious or fatal injury.

We are of course aware of the traumatic effects of such incidents, however rare. From what I have already said, it should be clear that this is a complex area, and any change to the law has to fit within the current driving offence framework. However, let me assure noble Lords that my ministerial colleagues at the Department for Transport understand the concerns that have been raised. I can assure the Committee that the Department for Transport is exploring options that could be pursued in this area, including but not limited to the available penalties and how the offence operates as part of long-term and wider work on road safety. I hope that, with those assurances, the noble Lord, Lord Paddick, will withdraw his amendment.

--- Later in debate ---

It is clear that, if it is known that there is to be a review for compliance and consistency by the inspectorates, this will help bring that about, quite apart from providing public confidence that compliance with the code and consistency are being achieved in practice. We support the noble and learned Lord’s amendment. Noble Lords may be bored, and I am exhausted, but I beg to move Amendment 170.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I want to say something from the Back Benches about my experience of sitting on scrutiny committees, which the noble Lord has just spoken about. I have sat on scrutiny committees for reviewing out of court disposals for both the British Transport Police and the Metropolitan Police. In my experience, they are good committees because they bring together a range of interested parties on whether out of court disposals are appropriate—magistrates, probation, CPS, police, YOTs and sometimes, in addition, there may be housing, education and health people from local government to review the appropriateness of out of court disposals.

In my experience, this system is extremely erratic and not systemised in any particular way. My experience is that the results of reviewing out of court disposals are not fed up through the Home Office, so when I have asked questions of both the MoJ and the Home Office, there is no way of reviewing whether out of court disposals have been appropriately used or of collating the numbers, because the use of scrutiny committees varies so much across the country—that is my understanding. I was interested to listen to the noble Lord, Lord Paddick, talk about the amendment tabled by the noble and learned Lord, Lord Thomas, and whether he is trying to introduce a code of practice to try to regularise these out of court disposal scrutiny committees. They are a good idea, but they need to be standardised across the country.

[Lord Falconer of Thoroton (Lab)]

I am very much obliged to my noble friend Lord Ponsonby of Shulbrede for that intervention, which goes to an incredibly important point raised by the noble Lord, Lord Paddick, and the noble and learned Lord, Lord Thomas of Cwmgiedd, which is that there needs to be proper scrutiny of the police being given a power to, in effect, punish people and impose conditions. There are two aspects to that, which the noble and learned Lord identified in his speech, so beautifully read by the noble Lord, Lord Paddick, even though it is so late: first, that the code of practice is complied with and, secondly, that there is consistency throughout the country in relation to the application of out of court disposals. I would be very interested to hear what the Minister has to say on how that point will be dealt with. We support the amendment proposed by the noble and learned Lord, Lord Thomas of Cwmgiedd.

I also agree with Amendments 170, 171 and 190, which seek to ensure that a person may be authorised to give a discretionary or community caution only if they have been authorised by a prosecuting authority for those purposes and a prosecuting authority must be satisfied that that person has received adequate training and is suitable to carry out those functions. Amendment 190 is a consequential amendment on that. I support these amendments and am very interested to hear what the Ministry of Justice has to say about them. I cannot think that it would not agree with this; some level of quality must be required for somebody who is going to give that caution.

Finally, the noble Lord, Lord Paddick, made points to the effect that this will be more expensive. He did not mention, because he is too kind—or he may have done, but I missed it—the additional £13 million that the Commons paper identifies for the cost of introduction, in addition to the £105 million and £15 million. We are going to spend all this money to achieve no greater victim satisfaction and without any evidence that it reduces reoffending. Why?

--- Later in debate ---

Finally, I pick up a point made from the Back Benches, for a change, by the noble Lord, Lord Ponsonby, that there is too much variation or a lack or a consistency in the use of out of court disposals across police forces. The noble Lord is, with respect, right that there are differences in the way cautions are given across forces. That is why, as I said earlier, we want to simplify the framework to reduce the inconsistency. We have to recognise, however, that there is ultimately an operational policing point here. Necessarily, therefore, because we have different police forces we will have different operational decisions, and different emphases in the way out of court disposals—

[Lord Ponsonby of Shulbrede (Lab)]

If the noble Lord will give way, the point I was making is that there is an inconsistency in the scrutiny of out of court disposals, not just the out of court disposals themselves.

[Lord Wolfson of Tredegar (Con)]

Absolutely. Let me deal with the out of court disposals themselves. I hope I have answered that point. There will, we hope, be a greater consistency of approach, but there will be differences. As for the scrutiny, as I said earlier, the code of practice will, we hope, provide a level of consistency of scrutiny that we also want to make sure is part of this structure. As I said earlier, that will be subject to an affirmative SI.

I am conscious of the time. I think we have drifted into Tuesday, so perhaps I should just conclude by thanking the Committee for contributions and invite the noble Lord to withdraw the amendment, although I am sure the discussions will continue. I also beg to move that the clauses stand part of the Bill.

Police, Crime, Sentencing and Courts Bill

Lord Ponsonby of Shulbrede Excerpts

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

[Lord Paddick (LD)]

My Lords, the noble Lord, Lord Brooke of Alverthorpe, has relayed to the Committee clearly a very distressing case of mistaken identity and anti-social behaviour generally in that street, apparently to do with drug dealing. If the perpetrators of this terrible crime were found, I am not sure that they would be given a caution, and I thought this part of the Bill was about police cautions—but I accept the general point that victims need to be protected. Although a caution would not be applicable in this case of the break-in at the home and the damage to the car, there might be one in respect of the general anti-social behaviour in the street. It is absolutely essential that the needs of victims are taken into account by the police, including for the financial losses that victims have suffered.

As I said on a previous group, out-of-court settlements have a high victim approval rating already. These amendments, in so far as they apply to police cautions, would ensure that they remain high, and to that extent we support them.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I agree with the points that the noble Lord, Lord Paddick, just made. I also think that Mr McAra should be very grateful to my noble friend Lord Brooke for raising the points about the lack of a formal record of the cost of the incidents. I agree with the noble Lord, Lord Paddick, that it seems very unlikely that anyone would get a caution for this sort of offence. Even if it got to court, there would be an obligation on the sentencing court to consider compensation, because one has to consider this whenever one sentences an individual. Nevertheless, my noble friend has raised an interesting question and I look forward to the Minister’s reply.

[Lord Carlile of Berriew (CB)]

I hope I can be forgiven for intervening slightly out of order. I have been thinking as I listen to this debate about the very troubling case which the noble Lord, Lord Brooke of Alverthorpe, raised, but I am not sure that what he is looking for is germane to this clause. However, there is an issue of general principle about unrecovered, uninsured losses arising from a serious crime of violence which does not cause considerable personal injury.

If there is an injury that would attract damages of £1,000 or more, some ancillary costs are payable under the criminal injuries compensation scheme. This raises in my mind that perhaps the Government should look at something like the Pool Re reinsurance scheme, which applies to claims which are uninsured as a result of terrorism events. The underinsured or uninsured person can go to this entity, which has been set up jointly by the public and private sectors, and recover the cost of damages for what has occurred outside the insurance scheme. I suggest to the Minister, who is an extremely experienced lawyer, that perhaps the Government should look at the criminal injuries compensation scheme and the Pool Re scheme and try to produce something which would deal with quite a significant number of cases which probably do not involve a massive amount of money, but in which people who are not very well resourced suffer a great deal, and disproportionately, as a result of the kind of offence that the noble Lord described.

--- Later in debate ---

[Lord Paddick (LD)]

My Lords, I will also speak to the other amendments in this group. The Committee has already considered these issues, so I can be brief. I apologise for not recognising that some of the amendments in a previous group covered similar issues.

In that previous group, the noble and learned Lord, Lord Falconer of Thoroton, suggested that the maximum number of hours attached to the unpaid work condition and the attendance condition, and the maximum fine that could be attached to a caution, should be set in the case of the fine and varied in all cases by regulations and that those should be amended only by the affirmative resolution procedure. The noble and learned Lord previously said in Committee that this was not an ideal solution, as regulations could not be amended and that this House was reluctant to use the “nuclear option” of praying to annul regulations, which is the only option available if it disagrees with a statutory instrument. Even with the affirmative resolution procedure in place, in practice, if the House disagrees with an increase to the maximum number of hours of unpaid work—or any of the other conditions attached to police cautions—there is little that it can do about it, unless changes are made through primary legislation.

I grant that the value of money is eroded over time by inflation and periodically the maximum fine capable of being attached as a condition to a caution may need to increase accordingly, but surely not the amount of time to be spent in unpaid work or subject to the attendance condition. There is a question of principle. If an offence is so grave that greater punishment is required, that should be a matter for the courts and not for a police officer to decide. There is precedent in our legal system for this principle. If magistrates want to impose a harsher sentence, they must refer eligible cases to the Crown Court, where a more senior judge can make a decision with more serious consequences.

When I joined the police service in the 1970s, the police performed the role of both investigator and prosecutor. Parliament then decided that prosecution decisions should be made by an independent body, the Crown Prosecution Service, for very good reasons that I do not need to rehearse here, while punishment of the individual has primarily been a matter for the courts, supported by reports from experts on the medical, social and criminal antecedents of the accused, in many cases, and considered by highly trained and experienced judges who are obliged to follow sentencing guidelines. In the proposals contained in this part of the Bill, the police are investigators, prosecutors and sentencers. There must be limits on the extent to which they should be allowed to carry out all three functions in relation to a case and those limits should be set out in primary legislation, on the face of the Bill. That is the purpose of these amendments and I beg to move Amendment 174.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I listened with interest to the noble Lord, Lord Paddick. As he says, in this part of the Bill the police are investigators, prosecutors and sentencers. They also decide whether the matter should be sent to the CPS, with the people charged and sent into the court system. Of course, once the case gets into the court system, magistrates are judge, jury and sentencers. There are different roles at different stages of the system. The burden of the amendments in the name of the noble Lord, Lord Paddick, is in some way to codify, limit and guide the police when they are doing this pre-court intervention with the type of cautions set out in the Bill. I look forward with interest to the Minister’s response.

[Lord Wolfson of Tredegar (Con)]

My Lords, I thank the noble Lord, Lord Paddick, for putting forward this group of amendments. If I can put it this way, the noble Lord realistically recognised that we have covered some of this ground before—not this particular issue but the conceptual underpinning on which it is based. I hope, therefore, that the Committee and the noble Lord will not take it amiss if I reply relatively briefly, because we have covered some of the points before.

Amendments 174, 176, 182 and 185 relate to the delegated powers contained in Part 6. The amendments propose to remove the clauses that allow the maximum amount of the financial penalty and the maximum number of unpaid work and attendance hours to be specified in regulations and would replace that by putting the details in the Bill. Amendments 175, 183 and 184 set out that the maximum penalty attached to a caution would be fixed at £200 and would make it explicit that an offender’s ability to pay must be taken into account.

The Bill contains powers to set and amend the amount of the maximum financial penalty and to amend the maximum number of unpaid work or attendance hours by regulations via secondary legislation. As I explained on a previous occasion, it was drafted that way to ensure maximum flexibility when responding to the needs of operational practitioners. Any changes to these regulations will be subject to parliamentary scrutiny in the normal way, but removing the delegated powers in their entirety, which is what Amendments 174, 176, 182 and 185 would do, would mean that there is no flexibility to amend either levels of financial penalty or the number of unpaid work hours. If we have the maximum financial penalty on the face of the Bill, to change it or update it, whether because of inflation or anything else, we would have to have to come back to primary legislation. I respectfully suggest that that is not a great use of parliamentary time.

Finally, as to the matter of whether the offender’s ability to pay should be explicitly set out in statute, of course it is a relevant factor, but we believe that this—alongside a range of other relevant factors around giving a financial penalty, the amount that it is set at and how quickly it is going to be paid—is better set out in detail in a statutory code of practice rather than in the Bill. With apologies for taking that a little shortly, I invite the noble Lord to withdraw the amendment.

--- Later in debate ---

[Lord Paddick (LD)]

My Lords, we support this amendment, but, as I have already said, we have our doubts about the whole regime. For the benefit of noble Lords who missed the midnight debate on Monday, I bring you the edited highlights, which are relevant to this group.

I quoted from the House of Commons briefing paper 9165. On the Government’s proposals on diversionary and community cautions, it says:

“the available evidence suggests the system: … may result in a further decline in … OOCDs; … is likely to cost more … is unlikely to have a major impact on the reoffending rates of offenders; and … may improve victim satisfaction but is unlikely to have a major impact.”

I have to say that the high point for me on Monday night—or was it Tuesday morning?—was the Minister’s answer to my question about how effective conditional cautions, which are the existing system of cautions with conditions attached, were, compared with simple cautions that do not have conditions attached. The noble Lord announced with glee, if I may say that in a very respectful way, that:

“As the Committee will know from previous exchanges, I am quite a fan of data.”—[Official Report, 8/11/10; col. 1577.]


The Minister then looked at his phone and a message from his WhatsApp group—it is good to see members of the WhatsApp group in the Box today—saying that, in effect, there was no data. The Government not only keep no record of how many conditional versus simple cautions are administered, just the total number of all cautions, but have no record of what kind of conditions are attached to conditional cautions. On the basis of that data void, they plan to implement a system where all police cautions will need to have conditions attached.

I also quoted from a 2018 paper by Dr Peter Neyroud, former chief constable of Thames Valley Police and now a distinguished academic, published by the University of Cambridge and commissioned by the National Police Chiefs’ Council, entitled Out of Court Disposals Managed by the Police: A Review of the Evidence. On the police attaching conditions to cautions, he said:

“The result … was a significant degree of inconsistency and a substantial number of inappropriate and un-evidenced conditions.”


The right reverend Prelate the Bishop of Durham gave us an example of, presumably, a youth who was banned from public transport, which meant he could not get to school. I continue to quote from Dr Peter Neyroud:

“Whilst the provision of further training and more guidance improved the situation somewhat, the cost of such an investment within a more general implementation of OOCD’s with conditions”—


exactly what the Government are proposing—

“would be prohibitive and, in any case, did not completely resolve the problems.”

Never mind—the noble and learned Lord, Lord Thomas of Cwmgiedd, came up with a better idea: the inspectorates of the constabulary and of the CPS could ensure consistency, so that somebody in a similar situation, committing a similar offence, would have the same conditions attached, no matter where they were in the country. I am afraid not, said the Minister:

“Those two inspectorates are not regulators; they do not have power to enforce compliance.”—[Official Report, 8/11/21; col. 1576.]


Inconsistent, inappropriate and unevidenced conditions will be attached to cautions all over the country, bringing no benefit to offenders, little benefit to victims and increased costs to the criminal justice system. That is what this part of the Bill does.

We support this amendment, which should also apply to diversionary cautions, but the omens are not good that the police will know what they are doing when it comes to applying conditions to support the offender to desist from offending. There is serious doubt that, even when they do, the conditions will have any effect on reducing reoffending.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, this has been a wide-ranging debate. When the right reverend Prelate introduced it, he made a general plea in favour of cautions and on why his amendment was appropriate. He spoke of the benefits of cautions and what they need to be effective, and of the revolving door of crisis and crime and of a holistic approach. He particularly gave the example of women offenders, for whom a holistic approach is appropriate to reduce reoffending. Then he went on to give examples of why quite a lot of cautions fail—by giving too many conditions. My experience, through following both cautions and sentences through court, is that the more conditions you put in place, even if they are in place for the best of reasons, the more likely you are to have a breach and to re-enter that cycle, coming back to court or to the police when conditions are breached.

My central point is that out-of-court disposals are a difficult area. The Government and previous Governments have a lot of experience in trying to come up with an appropriate regime for out-of-court disposals. As we have heard on the Bill—I agree with pretty much all the points made by the noble Lord, Lord Paddick—we have another cautions regime, which we hope will work in some way. I particularly noted the point made by the noble and learned Lord, Lord Thomas of Cwmgiedd, about the need to see draft regulations or a draft code of practice to ensure consistency across the country.

Police, Crime, Sentencing and Courts Bill

Lord Ponsonby of Shulbrede Excerpts

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

[Lord Paddick (LD)]

My Lords, in moving Amendment 187 in my name I will speak to the other amendments in this group. I ask the Committee to forgive the repetition.

I understand the Government’s desire to simplify out-of-court disposals and take the pressure off courts but, as I have said in several previous groups, research has shown that moving to the system suggested by the Bill, as piloted by some police forces, is likely to cost more, do nothing to reduce offending and have little or no impact on victim satisfaction.

I have also suggested that the complexity of having to impose conditions in every case when a police caution is given, whether a diversionary or community caution, is likely to have the unintended consequences of increasing the number of cases dealt with by no further action being taken and the number of cases sent to court—anything to avoid the complicated process of setting, arranging and monitoring compliance with the conditions that must be set whenever anyone is given a police caution. Research already shows a reduction in the number of out-of-court disposals in recent years, and these changes are likely to result in further reductions.

Clause 97 abolishes all other forms of out-of-court disposal. I will give some illustrations of what this means in practice. A young lawyer or medic who, completely out of character, has too much to drink, gets drunk and ends up making a nuisance of himself is arrested and, once sober, is given a simple caution. The salutary effect on such an individual’s future behaviour is dramatic, the impact on his career prospects negligible and the amount of time taken by the police to deal with the case minimal. If the impact of his being stopped and spoken to by a police officer has an immediate sobering effect, he might even be given a fixed penalty notice for disorder and sent on his way. Neither of these out-of-court disposals would be available under the Bill as drafted.

If someone drops litter, is seen by a police officer and refuses to put it in the bin, at the moment, that police officer can issue a fixed penalty notice for disorder. Under the Bill, the only course for the officer would be either not to take any action at all, undermining both the law and the authority of the police, or to arrest the person and take them to a police station so that they can be cautioned with conditions attached. I am at a bit of a loss as to what conditions might be attached to a caution for littering, but perhaps the Minister can enlighten the Committee.

Altogether, there are currently 27 minor offences that can be dealt with by a police officer issuing a fixed penalty notice on the spot, from cycling in a park where cycling is prohibited to possession of khat or cannabis. In all these cases, the only way to proceed, if this Bill passes unamended, would be to make an arrest, so that a community or diversionary caution with conditions attached could be administered.

This is a recipe for an increase in anti-social behaviour that goes unchallenged, because police officers faced with the bureaucracy of arrest and a community or diversionary caution with conditions attached will look the other way. What is unclear—the Committee needs to know this, and if the Minister cannot answer from the Dispatch Box, I ask him to write to me—is what happens to cannabis and khat warnings where people who have cannabis or khat found on them are seized by a police officer and a warning is given to them on the street. I would argue that that is a type of out-of-court disposal. Is this also to be outlawed by the Bill? If it is, it will have serious consequences for police resources.

What is proposed by this clause, with community and diversionary cautions being the only out-of-court disposals allowed, will result in fewer people having any action taken against them for anti-social behaviour and significant police resources being used to deal with minor offences. That is why Clause 97, which abolishes other forms of out-of-court disposals, such as fixed penalties for disorder, should not stand part of the Bill and the simple police caution should be retained. I beg to move.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the amendment from the noble Lord, Lord Paddick, is to retain simple cautions. The examples he gave illustrate the point I made earlier: that this is a very complex area, with a lot of history of government trying to manage out-of-court disposals in different ways. He gave the example of 27 minor offences which can be dealt with by fixed penalty notices and asked what happens with cannabis and khat warnings. I would be interested to hear the answer.

The noble Lord asked—I think rhetorically—what else a police officer can do other than give a conditional caution. The answer is that they can do nothing. They can give the person they are dealing with a talking to; in my experience, police officers are perfectly capable of doing that. Nevertheless, as I said in an earlier group, this is a very complex area. The Government have tried a number of different out-of-court disposal regimes in recent years; I am not aware that any approach was particularly better than previous ones. Indeed, the noble Lord gave examples of the not obvious success of the pilot schemes for this regime.

Nevertheless, I think that out-of-court disposals are appropriate. They need to be handled in a proportionate way and with the right amount of training for the police officers dealing with them. Clearly, an appropriate level of intervention would, one would hope, be for the benefit of the offenders, given that it is very likely that a large proportion of the offenders will be drug and alcohol users. Having said that, I will be interested to hear why the Minister thinks a simple caution is not appropriate to retain on the statute book.

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

My Lords, it is fair to say that this group of amendments goes to the heart of why reform to out of court disposals was needed and the aims of the new cautions framework. The background is that the public consultation on out of court disposals showed that more than half of respondents did not believe that they deterred offending. As such, it was felt that there should be a framework with more meaningful and proportionate consequences and a move away from “warnings” and “simple cautions” to a system with, on the one hand, repercussions for the offender but, on the other, an opportunity to reduce reoffending and address often complex needs.

The noble Lord, Lord Paddick, has indicated his intention to oppose Clause 97 standing part of the Bill. Removing that clause would allow existing cautions to remain in use. That would undermine the entire reform and change that we are trying to bring about and would continue the current inconsistent approach that we have across police forces. We do not want to stick with the status quo; we want to improve it.

As I understand it, Amendments 187 and 188 are consequential to the removal of Clause 97. Amendment 189 seeks to retain the option to use the simple caution as well as the new diversionary and community cautions. It also means that, if any existing cautions were retained, the giving of these disposals to offenders would then be taken into account in any repeat offending. Clause 96 deals with the provisions of restrictions on multiple use of cautions, so I will not expand further on that point at this stage.

Following the joint government and police review of out of court disposals between 2013 and 2014, it was established that the existing disposals framework needed reform. The National Police Chiefs’ Council developed its own two-tier out of court disposal strategy in 2017, which removed the need for the simple caution, penalty notice for disorder and cannabis and khat warnings. I will come back to the specific point the noble Lord, Lord Paddick, asked about. Since then, one-third of forces have moved to the two-tier framework, using conditional cautions along with the non-statutory community resolution. We believe that attaching conditions to the caution means that the recipient must engage in some way with the outcome as well as accepting responsibility. That is a more proactive and robust approach than the simple caution, which requires no further engagement by the offender and is often nothing more than a warning.

Removal of the simple caution does not mean that there is no provision for offenders where conditions requiring higher levels of engagement are considered unsuitable. As I said in response to an earlier group, we want to ensure a wide range of conditions is available, including those that require a low level of engagement on the part of the offender; indeed, it goes down at the bottom end to an expectation not to reoffend, so that such conditions can be selected where appropriate. The critical point is that there should be flexibility in the conditions that may be set in terms of the level of engagement that is required from the offender, so that the authorised person has discretion in this regard when choosing the conditions.

On the specific point of cannabis and khat warnings, which the noble Lord, Lord Ponsonby, also echoed, the community resolution already replaces cannabis and khat warnings. This is NPCC policy. The community resolution will be retained by the police as the only non-statutory option. Police are well practised in using the community resolution for this type of drug possession, and it does not require a formal admission of guilt either.

The final point I make is that the noble Lord, Lord Paddick, implied—I think; I may have got this wrong—that removing the simple caution meant that a low-level offence could be dealt with only by means of a diversionary or community caution. Fixed penalty notices do not fall under the reform to out of court disposals and will still be available for use where relevant. The example of littering given by the noble Lord may be dealt with by those means or indeed by community resolution, which is an alternative and non-statutory disposal that police forces will retain. I hope that answers his question on the khat point and also his point on littering.

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[Viscount Hailsham (Con)]

My Lords, I will make a very brief point in support of what has just been said by the noble Baroness and the noble and learned Baroness. There are a number of professions where you have to establish that you are a fit and proper person. I act as a legal assessor to the Nursing and Midwifery Council, and I am aware of the registration process: you have to assert that you are a fit and proper person. I can see that a caution of the kind that we have been discussing might stand in the way of a registration being effective, and that would be a great tragedy.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank the noble Lord, Lord Paddick, for tabling his amendment. As we have seen through this debate, it has inspired many contributions on a wide range of points about whether and when a caution should be spent: after three months or immediately when the caution is given.

I remember sitting on the Michael Sieff Foundation report, and our discussions about whether all youths should effectively have their criminal records expunged unless there were particularly serious matters in there. I also remember debating that point very well, because I was sceptical about it at the time. The argument that I found most convincing was from the lady who was an academic helping us. It was based on the inadequacy of the record-keeping system for having any sort of differentiated approach for expunging a criminal record. It is really much better and more reliable to expunge the lot unless there are extreme reasons not to. That way gave young people the best chance of getting a good job and starting their career.

All noble Lords who spoke in this debate made interesting points. My noble friend Lady Chakrabarti made one particular point about the record-keeping of the internet. This is a huge issue; the internet does not forget. Of course, employers make their own checks through the internet, whether or not they have been given permission to. In my experience, young people are conscious of this and spend a certain amount of time editing their internet history to make sure they get any job they are offered. That is a flippant point. Nevertheless, this was an interesting debate and I would be interested to hear the Minister’s reason for why a caution should not be spent at the time it is given, rather than after three months or whatever period it was. I too had the briefing from Transform Justice, which made a good case, so I look forward to the Minister’s response.

[Lord Wolfson of Tredegar (Con)]

My Lords, first, I will pick up one point from the last group to make it very clear: if I have made any errors, I am happy to correct them. As far as I am aware, there is no doctrine of ministerial infallibility; I say that with all due respect to my colleagues. Because the Cabinet table is still terra incognita to me, I hope I am on the right side of good behaviour even speaking from this seat.

I reassure the noble Lord, Lord Paddick, that we are not introducing any changes to the current regime for rehabilitating offenders who receive a caution. The proposed diversionary caution replicates the current system for the conditional caution, with the same spending period. I also point out that the lower-tier community caution being introduced has no spending period, and therefore mirrors the current adult simple caution. In effect, we are maintaining the position that pertains with a spending period for the lower-tier and higher-tier cautions. We think that is a sensible position to take.

I agree with the noble Baroness, Lady Chakrabarti, that the Rehabilitation of Offenders Act was, to use her phrase, a wonderful thing. It is an important piece of legislation and the principle underpinning it is important. It seeks to strike a balance between protecting the public and rehabilitating offenders, and it does that by requiring that in most cases a criminal record must be disclosed for a period of time but—this is the important “but”—after that period, the offender no longer needs to disclose it for most types of employment. I hear the point made by my noble friend Lord Hailsham that cautions sometimes have to be disclosed, but it depends for what purposes and when. There is an important spending period.

The real question at the heart of this debate is whether diversionary and community cautions should have the same spending periods. It is at that point that I respectfully diverge from the approach of the noble Lord, Lord Paddick, because, if a diversionary caution were to be treated as spent at the time a caution is given, it would suggest that there is nothing in favour of public protection that requires the disclosure of that caution, and the offending it relates to, for even a limited time—up to three months—after it has been given. That position is simply not tenable, once we recall what the diversionary caution is all about. Let us remember that the diversionary caution requires the authorised person to be satisfied that there is sufficient evidence of offending to charge the offender, and the offender themselves must both admit to that offending and consent to the giving of the caution. Public protection therefore continues to be engaged after it is given as, unlike a community caution, criminal proceedings may be instituted if the offender does not comply with the conditions.

Over and above that, again unlike the community caution, the diversionary caution can be given for indictable offences, admittedly in exceptional circumstances and with permission of the Director of Public Prosecutions. That again highlights the importance of placing a time-limited spending period on cautions that relate to more serious offences. Removing, therefore, the spending period for diversionary cautions blurs the important distinction between the two sorts of caution.

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[Lord Ponsonby of Shulbrede (Lab)]

I thank my noble friend Lady Massey for introducing these amendments. She did so comprehensively, and I shall speak very briefly in support of them.

When most young people go into custody, they will serve half their sentence in custody and the other half out on licence or on a training order. The gist of the Bill is to increase the custody element to two-thirds, while the amendments would put that back to half the period. As I have said on other amendments, I have an aversion to sentence inflation, and this is an example of it. There is no evidence that I am aware of that it would reduce reoffending. Rehabilitation is available within both the youth estate and the adult estate, but it is so much better if it can be engaged while outside prison.

On principle, I am against sentence inflation. My noble friend has set out with her normal expertise why, when looking at a wider context of international law, this example of sentence inflation is not appropriate. I look forward to the Minister’s response.

[Lord Wolfson of Tredegar (Con)]

My Lords, these amendments, which I am grateful to the noble Baroness, Lady Massey, for putting down, all relate to custodial sentences for children. There were one or two points that she made that I shall perhaps respond to when we get to group 9, because there is a little bit of an overlap with some of the points there. I hope that she will forgive me if I respond to some of the points then, but I shall seek to respond to the majority now.

As the Committee will be aware, there is a separate and distinct sentencing framework for children. When sentencing children, the courts have to take into account two statutory considerations: the principal aim of the youth justice system, which is to prevent offending by children and young people, and the welfare of the child. I hope that overlaps with some of the points made by the noble Lord, Lord German, emanating from the Sentencing Council.

Although, therefore, custody should always be a last resort for children, there will be some cases where it is necessary, and we believe that the court is best placed to determine the appropriate sentence. But those who commit the most serious offences, and who pose a risk to the public, should serve an amount of time in custody which reflects the seriousness of their offending.

Against that background, let me go through the relevant clauses and amendments. Clause 101 relates to—and I underline this point—minimum sentences. The noble Baroness, Lady Jones of Moulsecoomb, on a few occasions referred to “mandatory” sentences. The clause is not headed “mandatory sentences”; the words “mandatory sentence” do not appear in this Bill, except in one place, Clause 101(8), which refers back—it is a pity that the noble Lord, Lord Paddick, is not in his place, because we have a nice piece of parliamentary drafting here—to Section 399(c) of the Sentencing Code “(mandatory sentence requirements)”, but that refers to a minimum sentence where the conditions set out in the clause do not apply.

I have two points to make in this regard. First, minimum sentences are not mandatory in the sense that they must be imposed. They are a mandatory consideration that the court must make before passing a sentence unless the provision in the sentence is met. Secondly, the Bill does not introduce minimum sentences for under-18s for the first time. Offenders aged 16 or 17 are already subject to minimum sentencing provisions if convicted of threatening with a weapon or bladed article, or a repeat offence involving a weapon or bladed article.

The threshold for courts to depart from imposing a minimum sentence is open to them, the question being whether the test is met. This amendment aims to ensure that the change in the threshold will not apply to offenders aged 16 and 17 who are convicted of these two offences. In Clause 101 we seek to ensure that courts depart from the minimum sentence only in exceptional circumstances.

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[Lord Thomas of Cwmgiedd (CB)]

My Lords, in the light of what my predecessor as Lord Chief Justice, the noble and learned Lord, Lord Judge, has said, I can be very brief.

First, I wholeheartedly agree with him. Secondly, I do not think that we should beat about the bush at all about the change to the word “exceptional”. Any lawyer knows that the intention is to raise the bar significantly. You use that word only when you want to try to minimise the discretion or ambit of when it is to happen. I hope that the Minister will accept the clear intention of the change and answer the question posed in the earlier debate by the noble Lord, Lord German, about the difference. There is a clear and obvious difference.

Thirdly, having had a little less time as a judge and coming to the job a bit later, I can see an argument, which one has to accept, for saying that, by setting a minimum term, Parliament is giving an indication of what it thinks is appropriate. Perhaps that was not the right road to go down, but we have gone down it. But where this Government are wholly wrong—I do not think that we should mince our words about that—is in saying that a judge should impose a sentence that is not just. In refusing this amendment, the Government are saying, “We don’t care if injustice results: you must look at the circumstances, and if they are not exceptional” —a high bar—“you must impose an unjust sentence”. Have we really sunk so low as to require our judges not to do justice?

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, this has been an interesting debate. I agree with the points that the noble Lord, Lord Marks, has made, but I want to give a different perspective that partly undermines the argument put by him and all the other noble, and noble and learned, Lords who have spoken. The noble and learned Lord, Lord Judge, said that, ultimately, it is for judges to pass a sentence that is just. He pinned his argument on that single point.

We talked about youths in the previous group. For youth justice, the overarching purpose when sentencing is to reduce reoffending. That purpose supersedes the overall position of needing to be just in the sentence. That is why there is a minimum sentence in youth courts of four months. The reason is that, when you go to youth offender institutions or things like that, you are invariably told by the prison offers and teachers dealing with the young people that they need to be there for a duration of time to get their education. That is the justification for having a minimum sentence of four months in youth cases.

Police, Crime, Sentencing and Courts Bill

Lord Ponsonby of Shulbrede Excerpts

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

Moved by

[Lord Ponsonby of Shulbrede]

212: After Clause 124, insert the following new Clause—
“Short custodial sentences
(1) The Sentencing Code is amended as follows.(2) In section 230 (threshold for imposing discretionary custodial sentence), after subsection (2) insert—“(2A) If the court finds that the offence is so serious that neither a fine alone or a community sentence can be justified for the offence, it must state its reasons for being satisfied that the offence is so serious (having regard to the considerations in subsection (2B)), and, in particular, why a community order with appropriate requirements could not be justified. (2B) In this determination, the court must take account of the following principles—(a) passing the custody threshold does not mean that a custodial sentence should be deemed inevitable; (b) custody should not be imposed where a community order could provide sufficient restriction on an offender’s liberty (by way of punishment) while addressing the rehabilitation of the offender to prevent future crime; (c) sentences should not necessarily escalate from one community order range to the next at each sentencing occasion;(d) the decision as to the appropriate range of community order should be based upon the seriousness of the new offence(s);(e) section 65 (a relevant previous conviction to be treated as an aggravating factor) should not be interpreted so as to meet the custody threshold in respect of the sentence for one or more offences that would not themselves justify custody; and(f) where the offender being sentenced is a primary carer for a child, imprisonment should not be imposed where there would be an impact on dependants which would make a custodial sentence disproportionate to achieving the aims of sentencing.”(3) After section 230, insert—“230A Impact of custodial sentence on child or unborn child(1) This section applies where a court is considering imposing a custodial sentence on—(a) a primary carer for a child, or(b) a pregnant woman.(2) The sentencing court must—(a) consider the impact of a custodial sentence on the child or unborn child, and(b) presume (subject to victim impact and any other sentencing considerations) that a non-custodial sentence is in the best interests of the child or unborn child.(3) In this section—(a) “child” means a person under the age of 18, and(b) “primary carer” means a person who has primary or substantial care responsibilities for a child.””

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the purpose of Amendment 212 is to encourage sentencers to used community-based sentences rather than short prison sentences. It proposes strengthening the custody threshold as a principled starting point for reducing the current use of custody for lower-level sentences.

I favour this amendment over the potentially bolder Amendment 213 in the name of my noble friends, which seeks a presumption against a ban on short prison sentences. The danger of Amendment 213 is that if it restricts access to short prison sentences, in the current climate it could result in up-tariffing, which would not be a desirable result for the length of prison sentences.

As the law is currently drafted, imprisonment is reserved for serious offences. It is already established in statutory terms that an imprisonable sentence should be given only if there is no alternative. However, despite that, in practice people routinely continue to be imprisoned for low-level lawbreaking, fuelling an expensive merry-go-round of multiple short prison sentences.

The amendment proposed builds on principles already accepted in the sentencing guidelines. It enshrines these into legislation to better clarify the current statutory custodial threshold. Specifically, it intends to better ensure that custodial sentences are appropriately reserved for serious offences by better clarifying the assessments that are required to be made. The impact of imprisonment on dependent children should be considered in the sentencing of primary carers. This would limit the relevance of previous convictions in determining custodial sentences.

Persistence is a key driver of the current use of short-term custody and needs to be tackled head on. This amendment emphasises that short periods in custody should not be seen as an inevitable response to a person with a history of relatively minor offending.

The intention of this amendment is to shape the approach of judges and magistrates when considering a custodial sentence in a substantial proportion of cases which currently result in short prison sentences. However, it is important to emphasise that nothing in the proposed provisions would prevent a court from imposing custodial sentences of any length, including short custodial sentences.

In conclusion, I sit as a magistrate in central London. I put short custodial sentences in place, the vast majority of which are for people who have previously tried community orders and have either reoffended or have breached them on multiple occasions. It is very rare for a magistrate to give a short custodial sentence to somebody who has not previously been on a community order. Nevertheless, I think there is a genuine issue here—primarily the strength of the community orders which are available to courts. When the Minister responds to this debate, perhaps he will say something about the strengths and current revamping of the probation service. When sentencing judges or magistrates make short custodial sentences, the confidence that they have in community orders is an important consideration. I beg to move.

[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.

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[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank the Minister for summing up his response to the two amendments in this group. I feel I have been around this track a number of times over the years and we hear the same arguments again and again. The central point is surely that made by the noble Lord, Lord Beith: the current state of affairs is not satisfactory. We have the merry-go-round of short sentences so that sentencers, including myself, feel that we have to make short sentences because we have repeat breaches of community orders and some sentencers do not have confidence in them. So the merry-go-round carries on, with all the disruptive and damaging consequences which we have heard about from many noble Lords in this debate.

I am not saying that my amendment is significantly better than that of my noble friend Lord Dubs. I am saying, however, that there needs to be a holistic response of shorter sentences and better community sentences which people have confidence in, and which the offenders stick to and benefit from.

I will just come to the question from the noble and learned Lord, Lord Hope, about giving reasons. Magistrates’ courts are not a court of record. However, we give reasons and write them down—particularly if we think that we are going to be appealed. So, yes, we do give reasons. I beg leave to withdraw my amendment.

Amendment 212 withdrawn.

Police, Crime, Sentencing and Courts Bill

Lord Ponsonby of Shulbrede Excerpts

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

[Baroness Newlove (Con)]

My Lords, I am pleased to add my name to Amendment 214A, along with the noble Baroness, Lady Brinton, and the noble Lord, Lord Ponsonby, because we care about protecting vulnerable victims of crime from harm and repeat victimisation.

Home detention curfew, or HDC, is a valuable scheme allowing certain offenders to be released early from their custodial sentence if they have a suitable address to go to. We all recognise the value that this brings in providing a managed way of releasing offenders back into the community. However, there are, rightly, a number of exclusions to eligibility for the scheme based upon the offender’s history of compliance as well as the offences for which they have been convicted. For example, sex offenders required to register, those sentenced for breach of curfew and those serving sentences for cruelty to children or racially aggravated offences are ineligible for HDC. These are just some of the criteria that currently can preclude someone. I believe, as do some colleagues around the Chamber with whom I speak, that the safety of the victim and the risk presented to them by the offender are of the utmost importance when considering suitability for release under HDC.

Amendment 214A seeks to add two new criteria to the framework governing home detention curfews: first, that offenders who have previously breached protective orders such as restraining orders are deemed ineligible; secondly, that those with a history of offences related to stalking, harassment, coercive control and domestic abuse are also deemed ineligible. Victims of these crimes are at high risk of repeat victimisation and are in desperate need of respite from their abuse to help them recover. Under HDC, that respite can be as little as 28 days, allowing no time to address the behaviours that characterise these offences.

Fifty-five per cent of stalking perpetrators go on to reoffend because of the fixated and obsessive nature that defines stalking, as the noble Baroness, Lady Brinton, has just said. Therefore, granting HDC in stalking cases is highly inappropriate and of grave concern, as these offenders regularly breach orders and bail conditions. Home detention curfew for these offenders poses a significant risk, catching victims as they let down their guard. To see an offender released so quickly can be highly distressing, retraumatising and risky; and it impacts trust and confidence in our justice system.

HDC can allow offenders to leave prison so quickly that the victim is entirely unaware. I am aware of multiple cases where a victim has been harassed by an offender following release on HDC, including the victim of a brutal assault, whose father told me what happened: “My daughter was convinced she saw the perpetrator within yards of her new flat. She had to walk around him on the pavement. I assured her that this couldn’t be possible, even with only serving half his sentence. Nevertheless, I checked with the prosecuting officer. He knew nothing of any early release, nor had the police been consulted. In fact, we discovered to our horror that my daughter’s assailant had been released barely three months into his sentence.”

This woman saw the man who assaulted her just yards from her new address—an address she moved to for safety, which was secret for a reason. Her father told me of the enormous distress and anxiety this caused as she relived her assault and felt constantly in fear. In this instance, she had signed up for the victim contact scheme, but a HDC decision had been made before she had been allocated a victim liaison officer contact. As such, the decision was made without any opportunity to input licence conditions and set an exclusion zone for her offender, or for her to contribute in any way by raising highly relevant issues. The relevant issues included the fact that the offender had been given a 10-year restraining order—an unusual intervention signalling the judge’s belief that he posed an ongoing risk. Relevant issues such as that he had previously contacted the victim on bail, showing that he had a history of not complying with orders, should have raised red flags and, under this amendment, would have precluded him from HDC.

The use of home detention curfews in these contexts presents an ongoing problem. If the nature of the offence relates to ongoing harm or risk to a particular individual, as detailed in this amendment, HDC should not be considered a suitable intervention. Those are the words of a father who is so worried for his daughter.

I know it is drawing late, but I would like to thank the London Victims’ Commissioner, Claire Waxman, and her office for bringing these concerning cases to my attention. We need to protect our vulnerable victims of crime.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, my name is on this amendment as well. I have the same briefing as the noble Baronesses, Lady Brinton and Lady Newlove, so I do not have anything additional to say, other than that obsessional behaviour is a problem that one sees throughout the court system. While of course I support home detention curfews, it needs to be recognised that obsessional, fixated behaviour is a source of very serious risk—mainly to women, but not exclusively to women. I have seen, relatively recently, obsessional people in breach of a restraining order, a non-molestation order, bail conditions and licence conditions all at the same time. So I support the amendment in my name.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful to the noble Baroness, Lady Brinton, twice over. First, I thank her for tabling this amendment, which has enabled us to have this short but interesting debate. Secondly, I have to say mea culpa, because I failed to thank her for her contribution in the last group. I should have done so and I apologise for that. I hope that she will be able to hear what I am saying now, via the screen.

The home detention curfew—HDC—scheme has operated since 1999. It provides a managed transition from custody to the community for lower-risk offenders who serve sentences of less than four years. They may be released a maximum of four and a half months earlier than the date on which they must be released in any event, but on average they are released on HDC within three months of their automatic release date.

Offenders who are released under the HDC scheme are released under strict licence conditions. An electronically monitored curfew of at least nine hours a day is mandatory. Location monitoring may be added in cases where practitioners advise that it is required. Importantly, research suggests that offenders released early on HDC are no more likely to commit further offences than if they were released at their automatic release date. Compliance with the curfew conditions is closely monitored and breaches are dealt with robustly, which can lead to a swift recall to prison where necessary.

As my noble friend Lady Newlove pointed out, certain offenders are excluded in law from HDC. They include registered sex offenders, terrorists and those imprisoned for specified violent offences. But, as I have said, most offenders serving sentences of less than four years are eligible for the scheme. I underline the word “eligible”. The fact that a particular offender is, in principle, eligible, does not mean that that offender is suitable for release under the scheme. As the noble Lord, Lord Ponsonby of Shulbrede, has just said, offenders can, for example, exhibit obsessional behaviour. No offender can be approved for release on HDC without a robust risk-management plan in place. Where necessary, the governor can set additional licence conditions that can include exclusion zones or location monitoring. If the result of the assessment is that the offender cannot be safely managed at the proposed curfew address, HDC will simply not be granted.

We recognise that the release of offenders with a history of stalking, harassment, coercive control or domestic abuse can cause additional distress. We do not believe that adding those offences to the list of offences excluded by law and putting a blanket ban in place would be proportionate, or an effective means of safeguarding victims while maximising the benefits of the scheme. But we are currently reviewing the HDC policy framework to ensure that all the appropriate safeguards are in place to protect victims and the public and that unsuitable offenders are not released on HDC. With these reassurances and for these reasons, I urge the noble Baroness to withdraw this amendment.

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[Lord Paddick (LD)]

My Lords, I thank the noble Baroness, Lady Newlove, for so ably and comprehensively introducing her amendment. We return to an issue that we debated during the Domestic Abuse Bill, making misogyny a hate crime. From the Front Bench, we support Amendment 219 and oppose the alternative Amendment 219A.

When we debated the Domestic Abuse Bill, I talked about the appalling kidnap and murder of Sarah Everard by a serving police officer, and, as the noble Baroness, Lady Newlove, has said, many more women have died as a result of male violence since then. As the chair of the Police Federation of England and Wales said a few weeks ago, there is a problem with sexism and misogyny in the police service and in society as a whole. Urgent action is needed. Some changes will take a long time, such as changes to social attitudes and police culture, but some changes can happen now. We have an opportunity with this amendment to make one of those changes now.

I did not support the amendment to the Domestic Abuse Bill because I did not believe that that amendment made misogyny a hate crime. This amendment does. In the Domestic Abuse Bill debate, I suggested, as Amendment 219A does, that we should wait for the Law Commission report on hate crime laws. As the helpful briefing from the office of Stella Creasy MP says:

“Since 2010, more than half of Law Commission reviews have not been implemented at all, including the last review of hate crime legislation in 2014.”


I agree with the briefing’s assertion that this is an area where delay has tangible consequences. The evidence that there is a problem is overwhelming. In the wake of the tragic and horrific murders of Sarah Everard and Sabina Nessa, there is an opportunity to strike while the iron is hot, while public opinion is behind us, and where the issue is high in public consciousness. We need to seize that opportunity with Amendment 219.

I did not support the amendment to the Domestic Abuse Bill because I believed that it was the wrong Bill, where one third of domestic abuse victims are male. I believed that it was the wrong Bill because domestic abuse is one of the worst possible crimes, because if there is only one place where someone can feel safe, it should be in their own home—that domestic abuse could not and should be treated as any more serious than it already is.

I also said:

“If noble Lords or Members of the other place do not think we should wait for the Law Commission’s report, there is an imminent legislative opportunity to make sure that hatred of women is treated in every way as a hate crime. We could work cross-party to amend the Police, Crime, Sentencing and Courts Bill, which is being debated in the Commons, to make misogyny a hate crime in every sense of the term. Even if the noble Baroness is not convinced by the Government’s concession, we do not need to rush this amendment through now when the ideal legislative opportunity is at our fingertips.”


The ideal legislative opportunity is at our fingertips—it is here and now, and we should do it.

I have to say that I found the arguments in the briefing that noble Lords have been provided with less convincing on the issue of sex and gender. I refer again to what I said on the Domestic Abuse Bill:

“If the Government only require police forces to record crimes where the victim perceives them to have been motivated by hostility based on the victim’s sex … it does not go far enough. Current hate crime offences are recorded when anyone perceives the offence to have been motivated by hatred, not just the victim. The amendment includes sex and gender, and this is important. If an offender believes the victim is a woman, and anybody perceives that the offence was motivated by hatred of women, it should be recorded as a crime motivated by hatred of women. It makes no difference … whether the victim is a transgender woman.”


There may of course be circumstances where an attack on a transgender woman might be more appropriately recorded as a transphobic hate crime, but:

“Where the victim or a witness believes that they were attacked because they were a woman because they perceive the offender believed the victim was a woman, it should be recorded as such. The use of the term “sex” on its own may exclude some offences”.—[Official Report, 17/3/21; col. 363-64.]


It has been argued that, legally, such offences would not be excluded, but we need to consider the practical implications of excluding gender, as Amendment 219A seeks to do.

There are some who believe that trans women are not women but men. Some of those people are very strident in asserting that view. I want to avoid that debate if possible, but the fact is that people are saying this, and that view may influence victims, witnesses and police officers. Some people may not accurately report crimes motivated by misogyny if they believe that this does not apply to trans women. If we are to protect women and record all crimes motivated by misogyny, gender must be included. A proposal such as Amendment 219A, which makes life more dangerous for some women, makes life more dangerous for all women. From the Front Bench, we support Amendment 219 and oppose Amendment 219A.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the Labour Party has been at the forefront of calls to make misogyny a hate crime. Former Nottingham police and crime commissioner Paddy Tipping ensured that it was recorded as a hate crime there, and we have heard from my noble friend Lady Warwick about his work with Chief Constable Sue Fish in that regard. During the passage of the Domestic Abuse Act, we secured the piloting of the recording of misogyny as a hate crime among crimes of violence against the person, including stalking, harassment and sexual offences. Police forces recording misogyny as a hate crime is an important step forward, but we want to go further by including sex and gender in the list of protected characteristics in hate crime laws for the first time.

I shall speak only very briefly because of the hour, but I want to conclude by saying that I thought that my noble friend Lady Chakrabarti encapsulated the decision before us. We in the Labour Party support Amendment 219 and oppose Amendment 219A. As my noble friend said, first of all, this relates to where an offence has already taken place. Secondly, it is already the case that race and religion are aggravating factors, and they have been for many years. We believe that misogyny should be added as an aggravating factor when sentencing.

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

My Lords, I thank my noble friends Lady Newlove and Lady Noakes for tabling their amendments. Both have highlighted the importance of tackling violence against women and girls, as have other noble Lords. We rightly share this priority.

These amendments provide us with an opportunity to discuss the important issue of hate crime, and also to pay tribute to the work of the Law Commission. It performs an important service, considering complex matters of law and making recommendations for change and simplification. This very valuable function helps to bring coherence to complicated and technical areas of law.

The Government share the opinion that all hate crimes are a great injustice and should be dealt with by the full force of the law. I know that noble Lords are aware of the breadth of activity to combat the scourge of hate crime, but in the interests of the hour—I do not think I have ever started my first group of amendments at 10 past 12 at night, so this is a first—I shall consider the amendments before the Committee.

As I have stated in the House before, in 2018, as part of the updating of the Government’s hate crime action plan, we asked the Law Commission to undertake a review of current hate crime legislation. This specifically included concluding a review as to whether other protected characteristics, such as sex, gender and age, should be included. The review’s terms of reference were to review

“the existing range of protected characteristics, identifying gaps in the scope of the protection currently offered and making recommendations to promote a consistent approach.”

As noble Lords have said, the Law Commission’s final report is now imminent. It may be published as early as this month, and that of course is a matter for the Law Commission, which is fully independent of the Government. Noble Lords accepted this during the passage of the then Domestic Abuse Bill, and I think we should see it through in the way we agreed.

However, I do not think that we should commit to giving effect to all the Law Commission’s recommendations before anyone—including noble Lords—has even seen and studied them. It would be inappropriate for any Government to sign what is effectively a blank cheque.

In particular, I know many people hope that the Law Commission will recommend—if I can use the popular parlance—that misogyny should be made a hate crime. To those people, and indeed to any noble Lord, I would say, “Wait and see.” We do not know what it will recommend, and nor should we at this stage. As an independent body which considers and weighs up the evidence, the Law Commission will come to its own conclusions. We will only know what the commission’s advice is when the final report is published.

As the noble Lord, Lord Hunt of Kings Heath, pointed out, where the Law Commission suggested it was minded to consider adding sex and gender to hate crime legislation, it did so only in a consultation. But the purpose of a consultation is precisely to consult. The Law Commission will also want to consider what consultation responses have said and to shape its conclusions accordingly. Whatever the commission’s inclination might have been in 2020, we cannot assume the commission’s final position until it has been published.

It would be premature to accept Amendment 219 and negate the whole purpose of asking this distinguished, independent organisation to give full and proper consideration to the whole construct, purpose and design of hate crime legislation. What is the point of the Law Commission in the first place? I know that people have been critical of it, but I think it is a very useful tool to deal with certain complex issues.

It would also probably be premature at this stage to accept Amendment 219A. As I have said and my noble friend stated, we cannot pre-empt what the Law Commission will recommend. What I think we can say is that the law is complex and contentious, and that has been reflected in our debate tonight. It seems to me that there is every possibility that the Law Commission will make recommendations that will require primary legislation to implement and I do not think it would be appropriate to make what could be quite significant changes to our statute book through secondary legislation. I dare say that, were such a proposal ever to emanate from the Government, I would expect noble Lords to be critical.

Police, Crime, Sentencing and Courts Bill

Lord Ponsonby of Shulbrede Excerpts

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

[Earl Attlee (Con)]

My Lords, I had a very sheltered upbringing: I do not know where I could get any recreational drugs. If I went to a pub, I would probably find myself trying to buy recreational drugs from an undercover police officer. The one way I could certainly get some drugs is to get myself sent to prison on remand, because I could get drugs in a prison. I would like to hear from my noble friend the Minister what he is doing to stop drugs getting into prisons. It would be very helpful to understand how drugs get into prisons. Who is bringing them in? That is why my previous amendment referred to “remote” and “rural”, because it would be virtually impossible to import drugs into that establishment.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we support this amendment from the noble and learned Baroness, Lady Butler-Sloss. As she said, there is a cycle of offences for vulnerable people with drink and drug problems. In many ways it forms the vast majority of cases that we see in magistrates’ courts. I have come from Westminster Magistrates’ Court today and I can assure her that I dealt with as many drug and alcohol cases as I usually do. To use the word of the noble Baroness, Lady Brinton, the numbers are stuck where they are. Things are not getting better.

The noble Baroness, Lady Brinton, gave a very full and insightful summary of the statistics. I have been a long-standing member of the drugs and alcohol all-party group. This is an intractable problem that we see throughout the criminal justice system.

The initiative from the noble and learned Baroness, Lady Butler-Sloss, is to have a residential rehabilitation unit at the start, essentially, of any potential custodial sentence, and if people dropped out, they would then get a custodial sentence. It might work and it may well be worth a try. I will make one comment—I hate doing this, because one of the consequences of being a magistrate is that one becomes a sceptic, but nevertheless I will say that I think drug therapies work better when people do them voluntarily. I often say to people when I release them on bail on a drugs offence, whatever the offence, “If you can engage voluntarily in drug rehabilitation”—very often those are the same services that they are statutorily required to go to—“then any sentencing court when you come back to be sentenced will look on it more favourably.” Sometimes that message gets home.

Despite that note of scepticism, I still support the noble and learned Baroness’s amendment. It is another approach. There needs to be a multitude of approaches to address this scourge, and this particular approach is worth a try.

[Lord Wolfson of Tredegar (Con)]

My Lords, this probing amendment from the noble and learned Baroness, Lady Butler-Sloss, would require the courts to impose a sentence with the requirement to attend a residential rehabilitation unit where the offender has a drug or alcohol addiction, unless they had been convicted of murder, manslaughter, a terrorism offence, or a sexual offence. So, we are dealing here with the position at sentence. I will come to my noble friend Lord Attlee’s point about drugs in prison, although that is a slightly different, albeit related, point from that raised by the amendment.

--- Later in debate ---

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

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

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

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

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

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

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

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

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

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

[Lord Ponsonby of Shulbrede (Lab)]

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

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

--- Later in debate ---

[Lord Judge (CB)]

My Lords, despite Covid—I know it is not over yet, but despite the 18 months we have had—I have not heard it suggested that one solution to the problems that the courts face is that juries should act remotely. We have trial by judge and jury. I agree with what the noble Lord, Lord Pannick, said, but I want to be just a bit more down to the realities of it. What happens in court when the jury is unhappy with itself or with some of its members? The judge has a most delicate task to perform. On my old circuit—I am sorry to say that the Midlands circuit has this—one juror smelled; he stank, and the jury were extremely unhappy about it. Can all that be done remotely, when the judge is responsible for looking after the interests and needs of the jury as a whole? Do we send messages down the line? How is it accommodated? It requires huge tact, skill and, I think, the personal touch.

My other concern about this provision was touched on by the noble Lord, Lord Pannick—it is the usual one, I am afraid; you have all heard me talk about it. Why should we give these huge powers when we do not need to give them?

[Lord Ponsonby of Shulbrede (Lab)]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

--- Later in debate ---

[Lord Paddick (LD)]

My Lords, we support these amendments, so ably proposed by the noble Lord, Lord Cashman, supported by the noble Lord, Lord Lexden. I also pay tribute to the Minister for her sympathetic approach to these issues over the years. These offences should never have been offences in the first place. It therefore makes complete sense that, if people were convicted of such an offence and they apply to have a conviction or caution disregarded, and if that application is successful, they should be pardoned. Of course, deceased persons falling into this category cannot apply to have a conviction or caution disregarded, but they should be able to receive a posthumous pardon if the offence qualifies. It has taken 500 years to get to this stage and the Government have been making progress on these issues. These are the final pieces of the jigsaw and we support them.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, my noble and learned friend Lord Falconer also added his name to this amendment. We clearly support the amendments. I pay tribute to my noble friend Lord Cashman and the noble Lord, Lord Lexden, who I understand campaigned for decades on this issue. I thought it was quite moving, if I may use that word, to hear the noble Lord, Lord Lexden, saying he earnestly hoped that he was coming towards the end of his campaign. I hope he is right and that the Minister may be able to give him some comfort in that respect. Everybody who has contributed to the debate thinks this is a thoroughly appropriate amendment and, even though it has been a very truncated debate, the passion and the sense of finality have come through, and I very much hope that the Minister will give a suitable response.

[Baroness Williams of Trafford (Con)]

My Lords, it is about three minutes to the witching hour and I am absolutely delighted to be able to respond on behalf of the Government to these amendments. I and the Government are committed to enabling those with historical convictions for decriminalised homosexual conduct to apply to have their convictions disregarded. To answer the noble Baroness, Lady Bennett of Manor Castle, in discussion with the noble Lord, Lord Cashman, Professor Paul Johnson and my noble friend Lord Lexden, we felt that this was the neatest way to do it, as opposed to any other way. We have been actively exploring whether further offences can be brought within the scope of the scheme, to enable more people, both civilians and ex-service personnel, to benefit from it.

I really want at this point to pay tribute to my noble friend Lord Lexden and to the noble Lord, Lord Cashman, who is my noble friend, and to Professor Paul Johnson at the University of York for his expertise on this issue. I am very grateful for the conversations we have had on these amendments and similar amendments to the Armed Forces Bill. I am also grateful to the noble Lords for reiterating their commitment during Committee to work with the Home Office and the MoD on the best way forward for achieving our joint desire to redress this historic injustice.

We accept that the current scheme may be too narrow, as it is essentially confined to convictions for the now-repealed offences of buggery and gross indecency between men, but, as noble Lords have indicated, other now-repealed offences were also used to unfairly target gay men and women simply because of their sexuality. In further righting these historic wrongs, we need to ensure that any disregards in respect of additional offences meet the established legal criteria to ensure that necessary safeguards are upheld—this is something we have agreed and that the noble Lord, Lord Cashman. has outlined tonight. The disregard scheme was deliberately and carefully designed in a way that ensures that the Home Office does not inadvertently disregard convictions or cautions for behaviours which are still illegal today or which involved other illegal behaviours, such as underage or non-consensual sex or sexual activity in a public toilet, which is still an offence under Section 71 of the Sexual Offences Act.

Police, Crime, Sentencing and Courts Bill

Lord Ponsonby of Shulbrede Excerpts

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

[Lord Thomas of Gresford (LD)]

My Lords, I am disappointed that the noble Lord, Lord Pannick, did not refer to the opinion of the noble and learned Baroness, Lady Hale, in the case of J. She dissented—notwithstanding Lord Bingham’s inability to change the law—in these words:

“In short, the 1956 Act was a mess when it was enacted and became an ever greater mess with later amendments. It is not possible to discern within it such a coherent Parliamentary intention as to require it to be construed so as to forbid prosecution for a “mere” act of sexual intercourse after 12 months where that act properly falls within the definition of an indecent assault. Although we do have to try to make sense of the words Parliament has used, we do not have to supply Parliament with the thinking that it never did and words that it never used.”


I think we can see which side the noble and learned Baroness, Lady Hale, was on in that case.

The restriction has had an interesting history. Non-consensual sex was, and is, of course, rape, but consensual sex was a different matter. A girl was protected until the age of 10 under Queen Elizabeth I, to the age of 12 under George IV, 13 in 1875 and finally 16 in 1885. The time limit for bringing proceedings was at first within three months in 1885, which was increased to six months in 1904 and to nine months in 1922, and a provision of the Criminal Law Amendment Act 1928 increased the time limit to 12 months. It was anomalous then, and it is anomalous now, and I fully support the amendment in the name of the noble Baroness, Lady Kennedy of Cradley.

Amendment 292C in the name of the noble Baroness, Lady Newlove, seeks to extend normal time limits imposed on summary proceedings in the magistrates’ court and suggests that an offence of common assault may be brought within a period of six months from the date of reporting, rather than the date of the incident, with an outside limit of two years where it comes within the ambit of domestic abuse. This is an issue that might well have been discussed in the recent passage of the Domestic Abuse Bill. Summary proceedings are really intended to be summary. Assault and battery are attacks or threats of attack on the person. If significant injuries are caused, they should be tried on indictment in the Crown Court as ABH—assault occasioning actual bodily harm. So where is the dividing line between common assault and ABH?

The noble Baroness, Lady Newlove, referred to the CPS guidance Offences Against the Person, Incorporating the Charging Standard, dated 6 January 2020, which states that common assault is charged

“where injuries amount to no more than … Grazes; Scratches; Abrasions; Minor bruising; Swellings; Reddening of the skin; Superficial cuts.”

By contrast, ABH includes

“damaged teeth or bones, extensive and severe bruising, cuts requiring suturing”

and injuries

“that result in loss of consciousness.”

ABH is appropriate where

“the victim is vulnerable or intimidated”,

including

“a pattern of similar offending against the victim”,

and if a person suffers mental stress, that can also be seen as ABH. Your Lordships will appreciate that if the case is brought for ABH on indictment, this procedural limitation of the magistrates’ court does not apply.

Therefore, it is arguable that injuries of the nature that require interfering with the customary time limit applied in summary proceedings may not demand a change. I think the protections which are contained in the Domestic Abuse Act 2021 should deal with the problems in the area referred to by the noble Baroness, Lady Newlove. If a domestic abuse protection order is issued, breach of it is a criminal offence, which can be triable either way. A summary conviction may lead to a sentence of 12 months’ imprisonment, while conviction on indictment may lead to a term of imprisonment not exceeding five years.

This is the important point: a protection order can be made where the court is satisfied on the balance of probabilities. The prosecution does not have to prove beyond reasonable doubt that the victim has suffered. It is on the balance of probabilities for a protection order: simply that the person concerned has been abusive towards a person aged 16 or over to whom he or she is personally connected, where it is necessary and proportionate to protect that person from domestic abuse or the risk of domestic abuse. No time limits are set. I think we have moved on from common assault at common law in this field, and it may well be that this amendment is unnecessary.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I support both these amendments. My noble friend Lady Kennedy of Cradley is seeking to get rid of time limits relating to having sex with girls aged between 13 and 16 before 1 May 2004. As she said in her comprehensive introduction to the amendment, it is not known whether this anomaly, which a number of noble Lords have described, affects thousands of girls or fewer. It is simply not known. Nevertheless, from my understanding of the way she presented the case and the other comments on the amendment, it clearly seems to be a loophole which could be closed.

The noble Baroness, Lady Newlove, explained why common assault is different in domestic abuse cases from general common assault. As I think I have said in other Committees, I fairly regularly sit in domestic abuse courts in magistrates’ courts, and I have to say that I disagree with the concluding comments of the noble Lord, Lord Thomas of Gresford, that we seem to have moved on from common assault with domestic violence protection orders. Certainly, the way I view them, and I do those courts as well, they are very different because they are dealing with the civil standard. You can have cases where people have simply been abusive to each other and you are dealing with a very different type of case, in my experience, from common assault cases which you see in a more standard domestic abuse court.

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

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

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

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

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

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

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

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

[Lord Ponsonby of Shulbrede (Lab)]

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

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

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

[Lord Stewart of Dirleton (Con)]

My Lords, Amendment 280 would restrict the Ministry of Justice to appoint in our courts and tribunals only interpreters who are registered on the national register of public service interpreting—the NRPSI—and possess a level 6 diploma in public service interpreting, or who comply with the NRPSI’s rare language status protocols.

The Ministry of Justice commissions the services of interpreters for our courts and tribunals in England and Wales through its contracted service providers, thebigword and Clarion Interpreting. These interpreters are sourced from the Ministry of Justice’s register, which is audited by an independent language service provider, the Language Shop. All interpreters are required to complete a justice system-specific training course before they are permitted to join the register.

The contract has a clearly defined list of qualifications, skills, experience and vetting requirements interpreters must meet, which have been designed to meet the needs of the justice system. It covers a vast range of assignments, from simple telephone interpreting to deal with a user query to the facilitation of interpretation in a complex criminal trial. The qualifications and level of experience required will depend on the complexity of the assignment and the highest complexity level has qualification criteria comparable to those set by the national register of professional service interpreters.

It is in dealing with that vast range that the noble Baroness’s rhetorical analogy broke down. Of course I would expect my heart surgeon to have the relevant qualifications and experience to fulfil that role. At the same time, if my car developed a minor technical fault, I would not necessarily want to pay out for a consultant engineer to fix it, as opposed to taking it to the local garage.

Complaints about the quality of interpretation or the professional conduct of interpreters are carefully monitored and independently assessed by the Language Shop. The complaint rate remains low at less than 1%.

Police, Crime, Sentencing and Courts Bill

Lord Ponsonby of Shulbrede Excerpts

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

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I had a problem with this amendment myself but, not being a lawyer, I thought I would leave it to those who are. And, having heard the lawyerly wisdom pouring from your Lordships’ Benches on this amendment, I am astonished that there has not been an attempt to block the amendment. It is the only power we have to stop this Government overreaching. I am utterly disappointed and I deeply regret that I did not get more involved. I just hope the Minister actually listens to these very eminent views in your Lordships’ House and understands that this is not a smart move. I understand the public optics are very attractive, but, really, it just sounds foolish.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I stand on these Benches to support, or at least not to oppose, the Government. But I have to say that I am reluctant to go ahead and make this speech, based on the contributions we have just heard. The amendment inserts provisions into the Sentencing Code that require a court to impose a life sentence on an offender convicted of unlawful and dangerous act manslaughter against an emergency worker. As we know, this is known as Harper’s law, and it has been campaigned for by PC Andrew Harper’s widow after he was killed in the line of duty in 2019.

I listened very carefully to the Minister, and he made much play of the word “exceptional”. My noble friend Lord Carlile made the point about the interpretation of the word being fairly narrow in the Court of Appeal. I have to say, in the more “wild west” approach of magistrates’ courts, we interpret “exceptional” quite liberally at times. Having said that, I acknowledge that the Minister did make the point that this excludes those convicted of gross negligence manslaughter and includes only those convicted of unlawful act manslaughter, which I thought was an important point.

As I say, we on this side will support the Government in their amendments. However, I do recognise that some very serious points have been raised in this debate.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful to all those who have contributed and I can start by reassuring the noble Baroness, Lady Jones, that I always listen. We may not always agree, but I certainly always listen. I can also reassure the noble Baroness, Lady Fox of Buckley, that this is not law made by press release, nor is it law in the guise of a political policy statement. We have considered this issue very carefully. Indeed, it is because we have taken time to get the policy right as we see it that the amendment is here now and not earlier—to deal with one of the points made by my noble friend Lord Hailsham.

We believe this is the right approach to these circumstances. Of course, I carefully read the judgments in the Harper case, in particular the Court of Appeal judgment. I hope it goes without saying that, standing at this Dispatch Box, I have great respect for that court, as indeed I do for all courts. But that does not mean that Parliament is unable to or should be cautious to legislate in the area of sentencing, or should be prevented or inhibited from doing so. We are entitled to do so, and in this case, we ought to.

I will pick up on a couple of the points made by contributors. First, on exceptional circumstances, I seem to be being criticised both for refusing to define “exceptional circumstances” and for putting it too broadly. I deliberately did not gloss or parse the phrase. “Exceptional circumstances” is a phrase used in other legislation, for example the Sentencing Act 2020 and the Firearms Act 1968. We believe it is best to leave it to the courts to interpret and apply that phrase, and not to parse or gloss it from the Dispatch Box.

The noble Lord, Lord Marks, picked up on the word “totally”, which appears, as he said, in a press release form the Ministry of Justice. That shows the importance of leaving it to the words in the statute and not looking at anything else when the courts interpret those words.

An example was given of an off-duty police officer intervening in a fight in a pub. It is right to say that there is no requirement for the offender to know that the victim is an emergency worker acting as such. We stand by that. That is already the approach in other legislation passed by Parliament—for example, the Assaults on Emergency Workers Act 2018. There is no requirement in that Act, either, for the defendant to know that the victim is an emergency worker, although in most cases that will be apparent to the defendant.

For the unlawful act of manslaughter offence to apply in this case, the defendant must have been committing a criminal offence. If the actions of someone are such that they not only commit a criminal offence, but their actions further result in the death of an emergency worker who may be attempting to relieve that very situation, the Government believe the behaviour warrants a life sentence.

I come now to what we mean by a life sentence. I have already dealt with the “exceptional circumstances” point, so I turn to the point on life sentences raised first by my noble friend Lord Hailsham—regarding tariffs—and then more directly by the noble Lord, Lord Pannick. When a person is sentenced to a life term and not a whole life term, the judge will set out what the tariff is. Then it is a matter for the Parole Board to determine release, and the person will be under a life licence thereafter.

These provisions do nothing to circumscribe the ability of the trial judge to impose whatever tariff they think is appropriate in the circumstances. If the trial judge thinks a lower tariff is appropriate—the word “modest” was used by my noble friend—no doubt that is what they will impose. As in the case of murder, we believe the offence warrants a life sentence with a tariff and the consequences therewith.

I hear the point made by the noble Lord, Lord Pannick, that a life sentence does not normally mean that the person stays in prison for their whole life. That is the case across a swathe of criminal law, and maybe on a future occasion the House can decide whether that is an appropriate way to continue. Given that that is our sentencing structure—which I think is correct—it is also appropriate in this case.

I think the debate comes down to whether one accepts that the example given by my noble friend Lord Hailsham of the off-duty officer in civilian clothes who intervenes in a fight—

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[Lord Ponsonby of Shulbrede (Lab)]

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

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

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

Police, Crime, Sentencing and Courts Bill

Lord Ponsonby of Shulbrede Excerpts

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

Moved by

[Lord Ponsonby of Shulbrede]

42A: After Clause 35, insert the following new Clause—
“Domestic homicide reviews
(1) Section 9 of the Domestic Violence, Crime and Victims Act 2004 is amended as follows.(2) For subsection (2) substitute—“(2) The Secretary of State must in all cases which meet the circumstances set out in subsection (1) direct a specified person or body within subsection (4) to establish, or to participate in, a domestic homicide review.”(3) After subsection (3) insert—“(3ZA) The Secretary of State must by regulations set out—(a) the type of data relating to domestic homicide reviews which must be recorded, including—(i) the number of domestic homicide reviews taking place across England and Wales annually; and(ii) the time taken to complete each individual domestic homicide review;(b) that the data must be recorded centrally in a Home Office database; and(c) that the data must be published annually.””

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the new clause introduced by Amendment 42A seeks to modify the Domestic Violence, Crime and Victims Act 2004 to force the Secretary of State to automatically direct a domestic homicide review in the circumstances outlined in Section 9 of the Act. The new clause also aims to improve data collection methodologies around domestic homicide reviews.

My noble and learned friend Lord Falconer of Thoroton moved this amendment in Committee. The purpose of retabling it is to get a response from the Government. A letter was promised but none has been received as far as I am aware.

In preparing for this short debate, I reread the 2016 Home Office report on domestic homicide reviews. As the Minister will be aware, some strong themes emerged from that report, including the importance of record-keeping by the police and a multi-agency approach. Another particular theme was the need for GPs to keep records of people who reported domestic abuse.

In moving his amendment in Committee, my and learned noble friend asked three questions that I shall briefly repeat. First, it is difficult to see in Section 9 of the 2004 Act whether there is an obligation in every case for there to be a domestic homicide review. We think that there should be. Can the Minister confirm the Government's position on this question? Will she consider legislating to ensure that there is a review in every case?

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[Baroness Williams of Trafford (Con)]

My Lords, I thank the noble Lord, Lord Ponsonby, for outlining this amendment with such clarity. Domestic homicide is a horrendous crime and I reassure the House that tackling this is a key priority for the Government. Part of the solution is ensuring that domestic homicide reviews take place at every opportunity. They offer an opportunity, as the noble Lord said, to learn lessons to prevent the same mistakes occurring again. It is important that every domestic homicide is considered for a domestic homicide review so that, as he said, lessons can be learned and further deaths prevented.

I reassure the noble Lord that domestic homicide reviews are conducted in the great majority of cases, but there may be instances where one is not appropriate or necessary. The Government are clear that domestic homicide reviews should be considered at every opportunity, and the 2004 Act already makes provision for the Home Secretary to direct that a domestic homicide review takes place where required.

When a community safety partnership decides not to conduct a review, the decision is closely scrutinised and escalated to the Home Secretary to enable her to use her powers to direct a domestic homicide review, if appropriate. This involves a review of the decision by the independent quality assurance panel, whose views form the basis of the advice provided to the Secretary of State. The review of all decisions not to conduct a review is a new process implemented earlier this year. Since implementing it, the Secretary of State has directed four homicide reviews. I hope the noble Lord sees this as an example of how seriously this Government take these reviews.

On data collection, I reiterate to noble Lords that the Home Office has in fact committed to creating an online central repository of domestic homicide reviews to improve accessibility, exactly for the reason the noble Lords, Lord Carlile and Lord Ponsonby, pointed out. At present, all reports are published on individual local authority or community safety partnership websites, but often only for a limited period. Creating the central repository will mean that all completed reviews are readily available, including to support the monitoring of the implementation of any recommendations. This is expected to go live next year. I understand that the terms of reference of the review have been published.

Regarding the letter the noble Lord, Lord Ponsonby, cited at the beginning of his remarks, I will do some investigating and come back to him, because I really do not know what has happened to it. That is unfortunate, but I will chase it up and ensure he has a response. With that, I hope he will be happy to withdraw his amendment.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I will of course withdraw the amendment, which was essentially intended to nudge the noble Baroness. I thought the noble Lord, Lord Carlile, made a very reasonable point when he highlighted the postcode lottery if there is not a review of all cases. He also said—I thought very persuasively—that services will take greater care if they know there will be a review. Perhaps I could ask for an additional, interesting piece of information to be included in the letter: how many domestic homicides have there been in a recent period where there has not been a review? I beg leave to withdraw my amendment.

Amendment 42A withdrawn.

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[Lord Paddick (LD)]

My Lords, we support all the amendments in this group in the name of the noble Baroness, Lady Chakrabarti, and if I had been on the ball I would have signed them. I also have Amendment 50 in this group.

The user of the device from which data is being extracted should be able to see what is happening whenever that is practical, and be reassured that only relevant data is being downloaded, as suggested in Amendment 43. As has just been discussed, many people’s lives are on their phone and their lives are run by what is on their phone, so to be separated from it can have major consequences. That is why Amendment 44 suggests that the device should be taken only if absolutely necessary; an explanation given as to why it must be taken, if it is; and that it is returned as soon as practical, and in any event, within 30 days.

Amendment 45, adding “strictly” to “necessary”, narrows the circumstances in which data can be extracted. Digital downloads should not be used if there are other means of obtaining the information—whether “reasonably practicable” or not. Anything that deters survivors from coming forward or progressing their complaint should be avoided at all costs. “Not reasonably practical” sounds as if digital downloading could be used if it were easier than the alternative in Amendment 46. Amendment 48 provides for an independent review of the need for digital downloading, carried out by a senior police officer at the request of the user, who may be concerned that it is not strictly necessary and proportionate. Amendment 51 requires that an explanation is provided as to why it is necessary, how long it will take and the availability of a review.

As I pointed out in Committee, the Bill requires the authorised person to give notice only in writing to the user as to what, why and how the information will be extracted, the user’s right to refuse and the consequences of such a refusal. This is only to the extent that the investigation or inquiry will not end merely because the user refuses. Will the Minister state on the record that this is different from such a refusal having no consequences? For example, the defence in a rape case—where consent is an issue—may claim that withholding such information has implications which the jury might be asked to consider.

Akin to the rights of a detained person at a police station, it is not sufficient simply to wave a piece of paper under the nose of the user, who may be unable to read or be too traumatised to take in what she is reading. As the noble Lord, Lord Carlile of Berriew, and my noble friend Lady Hamwee have said, the authorised person should explain orally to the user and enter into a conversation to test her understanding to ensure that consent is informed and voluntary.

The government amendments attempt to address the concerns of my noble friend Lord Beith about confidential information. My noble friend Lady Hamwee was right: this should include confidential journalistic material and material subject to legal privilege, which was going to be dealt with by regulations. With the government amendments in this group, we appear to be inching forward on this, but concerns remain, as my noble friend explained. We support all the amendments in this group.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank all those noble Lords who have taken part on this group. The key issue which we need the Minister to take away is that there is more to be done in this area. We are grateful to her and her Bill team for their engagement with us and for the extra protections which the Government brought forward in Committee. I particularly pay tribute to the Victims’ Commissioner and her office for their leadership on these protections and the changes for victims which we need.

My noble friend Lady Chakrabarti and the noble Lord, Lord Paddick, both raised crucial issues, particularly about the need for strict necessity and the importance of making sure that victims—who may be going through this process at a point of shock or extreme vulnerability—genuinely understand their rights.

Amendment 52A in the name of my noble friend Lord Rosser returns to the issue of material held by third parties. It applies to material such as a victim’s school report or mental health records. I am grateful to the noble Lord, Lord Anderson, and the noble Baroness, Lady Newlove, for their support on this issue in Committee.

The Government have accepted on the face of the Bill that extra protections are needed for victims where data are extracted from their phones. The next step is that the exact same protections must also apply where a victim’s privacy is being raided in any other area of their life.

These changes are being championed by the Victims’ Commissioner, with the support of the National Police Chiefs’ Council. They are vital for victims, for culture change and for the system as a whole. We need to get it right to give victims confidence, to stop unnecessary requests for information and to reduce the huge delays in investigations. I know the Minister recognises this issue. Will she commit to take it away and consult on the issue of third-party material with a view to bringing in protections?

Police, Crime, Sentencing and Courts Bill

Lord Ponsonby of Shulbrede Excerpts

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

I have quite a few comments on the Private Member’s Bill if it ever comes here. I am happy to talk to the noble Baroness in the meantime, but I thought those comments on her amendment might be helpful. I look forward to other noble Lords’ comments as well.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the noble Baroness, Lady Stowell of Beeston, moved her amendment extremely clearly and explained the background in a way that I, as a sitting magistrate in the City of Westminster, understand very well. I have indeed dealt with some pedicabs in my time. The noble Baroness said that she will not divide the House, and I understand that.

I will pick up a couple of points made by my noble friend Lord Berkeley. This is a fast-evolving situation with freight pedicabs and electric freight pedicabs. Even in my current sitting pattern over the last few months, I have seen the way the police charge e-scooters changing really quite radically. To give an example, probably less than a year ago, I only ever saw e-scooters charged with traffic offences if there was another offence associated with it, such as robbery or an accident. But now, literally in the last month or so, I see e-scooters charged as a stand-alone traffic incident, if I can put it like that. There is clearly an evolution in the way the police are addressing these issues. Nevertheless, the noble Baroness has tabled an interesting group of amendments, and I look forward to exploring it in more depth if the Private Member’s Bill ever gets here.

[Baroness Randerson (LD)]

My Lords, I will comment briefly on the points raised by the noble Lord, Lord Ponsonby. This is an evolving situation. The key point is that the noble Baroness has raised the issue of a particular type of pedicab, but there is a crossover with the cargo bikes that are increasingly being used and are increasingly welcome for the delivery of goods, parcels and so on. They are hugely welcome on our streets. It is really important that any legislation deals with those two issues and separates them out, although the vehicles are very similar. To my mind, that underlines the point I was making earlier about my amendment and that of the noble Lord, Lord Berkeley: we need a complete and comprehensive review of the emerging and changing picture of traffic on our streets.

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[Baroness Randerson (LD)]

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

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

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

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

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, it appears that there has been some constructive discussion behind the scenes in preparation for this debate—I can see the Minister nodding his head.

I thank the noble and learned Lord, Lord Hope of Craighead, for his very clear exposition of the issues he is raising with this. Essentially, his points were that the law should not threaten prison if somebody is careless, when a disqualification is more appropriate, and that adding the word “very” before the words “careless” or “serious injury” is not an appropriate way forward and there should be another approach. I hope we may hear from the Minister on that in due course.

I support the opposition to the clause itself expressed by the noble and learned Lord, Lord Hope, and also listened with great interest to the question from the noble Lord, Lord Marks, on whether the Minister thinks there may be any possible increase in prosecutions under this new definition of carelessness. I hope that is not what the Minister intends.

I also share the point made by the noble Baroness, Lady Randerson, that in magistrates’ courts you often see dangerousness and carelessness charged in the alternate and it is up to the court to decide which is the more appropriate charge. Having said all that, I look forward to the Minister’s response.

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

My Lords, the noble Lord, Lord Ponsonby of Shulbrede, referred a moment ago to constructive discussions. There have indeed been discussions between me, the noble Baroness, Lady Randerson, and the noble and learned Lord, Lord Hope of Craighead, and, so far as I was concerned, they were constructive. I am grateful to both of them for the time they gave to those conversations. I will set out the Government’s position, and I hope it will reassure them on the various points they raised.

Clause 67 introduces a new offence of causing serious injury by careless driving. By creating this new offence, the clause fills an admittedly small but, we think, significant gap in the current legislation. We considered the creation of this new offence and the maximum penalty it attracts very carefully during the review of driving offences that cause death or serious injury. We remain of the view that there is a clear gap in the law. That view was supported by the vast majority of people who responded to the consultation and by the other place.

Although I understand why the noble Lord, Lord Marks of Henley-on-Thames, says that this clause is wrong in principle, I respectfully disagree. I will explain why we think there is a gap in the law by looking first at the position with regard to dangerous rather than careless driving.

For dangerous driving, there are three main offences. The most serious—causing death by dangerous driving—has a maximum penalty of 14 years, to be increased to life by Clause 66. Secondly, there is causing serious injury by dangerous driving, which has a maximum penalty of five years. Thirdly and finally, there is the basic offence of dangerous driving—for example, where there is no injury. That has a maximum penalty of two years.

Police, Crime, Sentencing and Courts Bill

Lord Ponsonby of Shulbrede Excerpts

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

It is quite extraordinary that the police are being given the power to be judge, jury and executioner, when, to date, the Government do not know how many conditional cautions have been administered or what sorts of conditions the police have been imposing. Amendment 66B is the least we can do to exert at least some control over what will be the reverse of open justice.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, speaking first to the amendment tabled by the noble and learned Lord, Lord Thomas, which would make provision for regular reviews of out-of-court disposals, there is a method for this. It is scrutiny panels, which were introduced in previous legislation. They work very unevenly across the country. As a magistrate, I have served on a number of scrutiny panels for the British Transport Police and for a certain area of London, for both adult and youth offences. It is a very interesting exercise because you work with the police, the CPS, probation and some representatives of civil society. We had a rabbi on the scrutiny panel I was on for the British Transport Police, and we reviewed the out-of-court disposals.

The big problem with this approach was that there was no central record of what we were doing with our assessment of the out-of-court disposals. As far as I could find out, neither the Home Office nor the Ministry of Justice collected any of the results of these scrutiny panels. In fact, scrutiny panels do not sit in some areas of the country. Nevertheless, the approach advocated by the noble and learned Lord, Lord Thomas, is a good one. He said that he had held sympathetic discussions with the Ministry of Justice on this matter, so I wish him well with that endeavour.

I too am very sympathetic to Amendments 66C and 66D. As the noble Lord, Lord Paddick, said, simple cautions are quick, simple and, when they work, effective. One of the downsides of being a magistrate is that you see things only when they are ineffective—that is why they have come to court in the first place. Of course, if a simple caution is effective they would not come to court, but the noble Lord makes a very strong point about having something that is quick and simple for the police to administer and which is, for a first-time offender, a salutary experience: they have admitted their guilt, they have got the caution and they are on their way relatively quickly.

It is a similar point for the on-the-spot penalties for littering and other minor offences. A quick on-the-spot penalty will have a salutary effect for someone who is largely law abiding. It seems a pity to lose that from the armoury of the police. If the noble Lord moves his amendment, we will support it.

[Earl Attlee (Con)]

My Lords, the noble Lord, Lord Paddick, makes a very good case for his amendments. I hope that my noble friend the Minister can satisfy the House, but I think that he will struggle a bit.

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[Earl Attlee (Con)]

My Lords, I have no objection to short prison sentences per se. The problem I have is that our current prison system is so hopelessly ineffective at rehabilitation. That is why in Committee I tabled my Amendment 241, a proposal for drastic reform. I am grateful for the response I got from the Committee, and indeed from my noble friend the Minister, and that is why I saw no need to table it on Report.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I will speak first to Amendment 82A, to which I put my name, together with the noble Lord, Lord German. It specifies that short periods in custody should not be an inevitable response to someone with a history of relatively minor offending and that sentencers should be required to state the reasons for giving a prison sentence up to and including six months.

A coalition of views has been expressed in support of the amendment. We have, if she does not mind being described in this way, a campaigning right reverend Prelate who consistently talks about short prison sentences, particularly as they affect women, and my noble friend Lord Bradley with his expertise in this area regarding harmful effects on women in particular but also people with mental health problems. I also include myself in the coalition, because I regularly sentence short sentences.

The point I have made in these debates before is that, while the reoffending rate is indeed as bad as the right reverend Prelate said—there are high reoffending rates—in my experience as a sentencer, I sentence short sentences only when a community sentence has failed. I literally cannot remember a time when I have sentenced a short custodial sentence where there have not been—sometimes multiple—failures of community sentences. When I sentence, I am comparing a 100% failure rate for the community sentences of the people in front of me with the 60% failure rate of those who come out of short custodial sentences and reoffend within a year, so I am making a very unfortunate calculation when I give short custodial sentences.

Nevertheless, the noble Lord, Lord German, made absolutely the right point. We are trying to help the Government realise their own policy. The Government acknowledge what I have just said regarding the inevitability, sometimes, of short custodial sentences. The real answer is to come up with a robust, community-based approach that works and that sentencers have some level of belief in. I look forward to the Minister’s response to Amendment 82A.

I turn to the other amendments in the group. As I said in Committee, the Labour Party will abstain—with reluctance—if the noble Lord, Lord Marks, chooses to move his amendments to a vote. The point made by the noble Lord, Lord Faulks, was essentially the point the Minister will make, which is that what we are seeing here is the Government’s response to a particular set of offence types and that it is a policy decision on behalf of the Government, which they are entitled to take and which they see as a response to public demand. Frankly, I am not comfortable with the position I am taking on this, but the view of the Opposition is that we will abstain if the noble Lord, Lord Marks, decides to move his amendments to a vote.

[Lord Wolfson of Tredegar (Con)]

My Lords, this group of amendments broadly covers topics related to custodial sentences. We debated them at some length in Committee. The Government have listened carefully to the arguments put forward by noble Lords in support of these amendments. In particular, I am grateful to the noble Lord, Lord Marks of Henley-on-Thames, and others for discussing them with me. However, the Government remain unpersuaded that these amendments are necessary. I will briefly explain the reasons why and will begin with Amendments 71 to 78 in the name of the noble Lord, Lord Marks.

As the noble Baroness, Lady Jones of Moulsecoomb, reminded us, we had a lengthy debate in Committee on Clause 102 and minimum sentences. For the avoidance of any doubt, this clause does not introduce any new minimum sentences or new offences. Rather, it seeks to ensure that courts depart from imposing the minimum sentence only in exceptional circumstances. We are making sure that in these cases, where a minimum sentence applies, the criteria by which the courts can depart from the minimum sentence are consistent and are set out.

The amendments use the term

“contrary to the interests of justice”.

This term is not itself unusual, indeed at Section 59 of the Sentencing Code courts are directed to follow the relevant sentencing guidelines unless

“satisfied that it would be contrary to the interests of justice to do so”.

However, as the noble Lord, Lord Marks, accepts, these amendments would create a new and different test in respect of which a court can depart from imposing a minimum sentence when sentencing for these specific offences. The noble Lord’s amendment could be seen, as I think he tacitly accepted, as creating a lower threshold at which the courts may depart from imposing the minimum sentence, whereas the Government intend to raise and clarify the threshold.

As I explained in Committee, the necessity for this measure is supported by the data. In 2020, approximately half of all adults convicted for a third-time domestic burglary offence received less than the minimum sentence, even after taking account of the early guilty plea. We should not forget that minimum sentences are, in the main, for repeat offences which have a large community impact.

I know that concerns have been raised that Clause 102 may lead the courts to impose the minimum sentence in situations that they regard as unjust, because they cannot find the circumstances to fall within the ambit of “exceptional circumstances”. Concerns have also been raised that what constitutes “exceptional” might be treated as being subjective, leading to inconsistent application.

I can, I hope, reassure the House that courts are well accustomed to determining whether there are exceptional circumstances. There is a body of case law relating to the minimum sentence for certain offences involving firearms which already applies unless there are exceptional circumstances. This provision aligns the minimum sentence provisions with that test. Without wishing to turn Report stage into a seminar, in R v Nancarrow—the reference is 2019, EWCA Crim 470; old habits die hard—the Court of Appeal established a number of relevant principles, including that circumstances are exceptional if the imposition of the minimum sentence would be arbitrary and disproportionate. The court should also take a holistic approach and consider whether the collective impact of all the relevant circumstances makes the case exceptional. Therefore, judicial discretion for the court to consider fully the facts of the case and decide on the appropriate sentence in light of the statutory regime is retained in this measure.

I respectfully disagree with the noble Lord, Lord Marks, that this is an attack on judicial discretion. It is not a case of the Government not trusting judges; indeed, we have minimum sentences. The noble Lord is not suggesting that we should not have any minimum sentences, so the issue between us is not whether a judge has full discretion or no discretion—I am not advocating no discretion; the noble Lord is not advocating full discretion—but the ambit of that judicial discretion. I suggest that that is a matter of policy and therefore properly a matter for Parliament.

Police, Crime, Sentencing and Courts Bill

Lord Ponsonby of Shulbrede Excerpts

Lords Hansard - Part 2 & Lords Hansard - part two & Report stage
Wednesday 15th December 2021 Lords Chamber

[Lord German (LD)]

My Lords, I too have signed this amendment. It amazes me that we have unanimity on the problem—a problem that may be solved in a number of different of ways but something which everyone thinks is a problem and should be solved—yet we are being asked to wait a number of years for that to happen. Talk to any Minister who has an interest in taking forward a new proposal, and the first thing that they will say is, “Ah, there is a problem with how much legislation we can get through in a year”, or whatever the space of time between the Queen’s visits.

Clearly, it is a difficult route for anyone to take through a Bill. I am sure that there would not be a Bill talking about the Friday release problem as a piece of primary legislation. It is bound to fall within another piece of legislation, but it is surprising that the Government support the principles upon which this amendment is created but cannot find the route for it to happen more swiftly. Let us remember the point that the noble Earl, Lord Attlee, just made, that the cost of not doing something here is immense.

If you stand outside a prison gate at a particular time on a particular week, you will often see people lined up at a bus stop with the same plastic bags containing their total belongings, their total life, and with their £76, if they have not already spent some of it on getting themselves some food. That is how they face the life in front of them. My noble friend Lady Hamwee was quite correct that the absolute certainty of getting this right is in the through-the-gate services which the Government must provide. It is one of the sad reflections that the gate is seen as a wall rather than as a place from where opportunities which commenced inside the prison can continue. I always relay to anyone who wonders about this that about 60% of the people who do my local recycling are on day release from prison and go back in the evening. The advantage is that they can earn a bit of money and eventually find their way back to employment more swiftly.

We know the difficulties here and it surprises me that the Government have not yet taken the view of the noble Lord, Lord Hodgson, who has sharpened his pencil and come up with the right answer. The right answer is that, if the Government want to take this forward in a bigger piece of legislation, in the interim you create the regulatory powers for the Minister to be able to give discretionary powers to the prison governor to identify those prisoners who are most at risk, and give them the opportunity to sort the problems out with local government. We are talking about a simple matter here.

As my noble friend Lady Bakewell of Hardington Mandeville said, local authorities have a major problem with housing. I experienced this with a couple of people coming out on a Friday. They went to the local housing office and were told there was nothing available. They wandered round from one local authority to another attempting to find a link between them, and I honestly do not know where they ended up, but it certainly was not in a place where their lives could continue and they could make a future for themselves.

The challenge in paragraphs 139 and 140 of the prisons strategy White Paper we were presented with is to get on with it—that is the Government’s intention. I am sure the intention is not to hold back from it. This is a straightforward, simple resolution of the problem, which meets all the Government’s objectives. I support this amendment, and I hope the Minister can tell me the answer to the question asked by the noble Lord, Lord Hodgson: what is not to like?

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, my first interest in criminal justice came about 20 years ago, before I became a magistrate, when I was a trustee of the Wandsworth Prison visitors’ centre. Like all those centres, it was set up on the recommendation of Judge Stephen Tumim, and we dealt with the needs of the families of prisoners. It was then that I first came across this problem—it is not new—and the fact that it is very much the management of small issues that is of central importance for the prisoners and their families.

We owe a debt of thanks to the noble Lord, Lord Hodgson. He has indeed gone into the detail of this problem and come up with a highly practical way of resolving it—tonight, potentially. This House should take advantage of that opportunity. In one sense, I will be intrigued to hear what reasons the noble and learned Lord the Advocate-General for Scotland might give for not pursuing this, but this really is an opportunity. The noble Lord, Lord Hodgson, has addressed the three original points made in Committee in his new amendment, and I really encourage the noble and learned Lord to take advantage of this opportunity.

[The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)]

My Lords, this amendment seeks to reduce releases on a Friday, or on days before bank holidays, including releases of persons whose release falls on a non-working day, by creating a power for the Minister to establish a pilot scheme via secondary legislation that would grant prison governors the discretion to release earlier in the week, where that would be helpful for the prisoner’s reintegration into society.

I thank all noble Lords who have participated, particularly my noble friend Lord Hodgson of Astley Abbotts and the noble Baroness, Lady Lister, for their constructive and entirely commendable approach to this. As my noble friend put it, rather than simply rehearsing the arguments made at an earlier stage, they have gone away, considered the matter and sought to refine them in answer to the points made by my noble friend Lord Wolfson of Tredegar.

The question posed ultimately by the noble Lord, Lord German, rehearsing the one posed by my noble friend, was: what is not to like? Regrettably, I cannot answer that with “Nothing”, which I suspect was the answer being fished for. I will endeavour to explain why.

The noble Baroness, Lady Lister, highlighted the existence of a discretionary scheme in Scotland, in terms of the Prisoners (Control of Release) (Scotland) Act 2015. We have engaged with the Scottish Government and looked at research carried out by the Scottish Prison Service, and we have seen that the uptake of this discretionary scheme since 2015 is extremely low: only 20 prisoners in that period have been granted early release. I submit that that gives us some indication of the complexities attendant upon the point. It is not as though we have in the neighbouring jurisdiction a solution to this matter which could be taken from the shelf and applied in England and Wales. We plan further engagement with the Scottish Government to look at the matter in more detail, and we will share the results of that engagement with the noble Baroness.

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[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I have also put my name to these amendments, so ably moved by the right reverend Prelate the Bishop of Gloucester, and I support them. I have to confess that, as she was speaking to each amendment, I was mentally going through the processes I go through as a sentencer. She introduced her comments by talking about probation reports. As I have mentioned, I became a magistrate about 14 years ago, when there were no oral reports, and fast-delivery reports were only just being introduced. Most of the time, we saw standard reports. There has been an evolution over the last 14 years. There are oral reports, fast-delivery reports and standard reports. In the youth court we have far more enhanced reports, which are 10 to 20 pages long, and in the domestic abuse courts we will be more informed of the family situation when sentencing somebody convicted of a domestic abuse-related offence.

I do support these amendments. The reports put in front of magistrates’ courts and Crown Courts need to be appropriate, and, of course, they need to include the family circumstances of the person being sentenced. The great dilemma, in any system, is to get enough information in a timely manner but not so much that it delays things. I remember that when oral reports were first introduced in magistrates’ courts, we very much appreciated that, because we had experienced probation officers who would interview the offender on the day and come to the court and tell us the various pros and cons of the sentencing options. We knew those probation officers and trusted them to give us a balanced view and guidance on the appropriateness of certain sentences.

That is a good example I have just given. There are, of course, less good examples where we may not have been made aware of the family responsibilities of the person we were sentencing, and there is an absolutely consistent dilemma, whenever one is sentencing, over whether one has a whole picture.

As I say, I support these amendments. This is all based on the data. It is about having appropriate data at the time and about recognising the domestic situation and whether there are responsibilities. Everyone here today has mentioned the position of children, but a lot of people I sentenced also had responsibilities for older parents or other caring responsibilities, and that needs to be taken account of as well.

While I support these amendments, I think more can be done. Reports need to be focused in the right way, and the probation service needs to build on its links with appropriate local social services, as it does when I sentence domestic abuse-related incidents. Much more needs to be done, and I will support the right reverend Prelate if she decides to press her amendments to a vote.

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

My Lords, this group of amendments relates to primary carers in the criminal justice system. We debated it at some length during previous stages, and, as I noted in Committee, the proposed new clauses have their origins in previous work by the Joint Committee on Human Rights. Let me just take a moment to echo the tribute paid by the noble Baroness, Lady Hamwee, to those who give evidence to that committee and the other committees of this House. While the Government support the principle behind these amendments and have listened carefully to the arguments in support of them, we are still not persuaded that they are necessary.

I will explain the Government’s reasoning regarding each of these proposed new clauses. Amendment 88 would require the Secretary of State to take reasonable steps to collect data centrally and publish it annually on how many people sentenced have parental responsibility for a child or children under the age of 18 or are pregnant. We have publicly acknowledged the gaps in our current data collection on primary carers in prison and believe that understanding the position in prison is where we should focus our improvement efforts regarding data. This will provide an evidence base to develop policy solutions to offer proper support to primary carers who are imprisoned, and their children.

I am sorry that progress has been so slow, but I am pleased to say that the necessary changes to the basic custody screening tool will be made during the first quarter of the coming year. From that point we will be able to collect data on primary carers in prison and the numbers of their children. An important caveat is that our data collection is necessarily dependent on prisoners declaring the information. Although we do our best to encourage people to provide information, there will always be some people who, for various reasons, do not disclose what the underlying position is. We continue to look at this issue to ensure that our data collection is as good as it can be. I heard the right reverend Prelate say that she would be keen to continue discussions on that point. She knows from previous issues that I am very happy to discuss this with her. I will keep her informed of our progress.

Amendment 88 also refers to collecting data on women who are pregnant when they are sentenced. The Government’s view is that the primary focus should be on those who are pregnant and sentenced to custody. We have already taken steps to acknowledge previous weaknesses in our data collection. We are now collecting and publishing data on the number of pregnant women in prison in the HMPPS annual digest, which contains a weekly average for self-declared pregnancies, and the total number of births to women held in custody over the year, in location categories.

On the closely linked topic of maternity services in prisons, this week I met the noble Baroness, Lady Burt, to discuss the breadth of work already completed and under way to address learning from the appalling “Baby A” case, as per the existing statutory obligations. I am grateful to her for the time that she spent discussing the matter with me. HMPPS has accepted and completed all the PPO recommendations. The PPO’s recommendations for health have either been completed or are in the process of being completed.

This work includes investment by NHS England and NHS Improvement of recurrent funding for an improved maternity service at HMP Bronzefield that will be delivered by Ashford and St Peter’s Hospitals NHS Foundation Trust. All the work that we have completed or are in the process of implementing is set out in a joint action plan that we have submitted to the PPO, and which is available publicly on its website. Nationally, as part of the jointly commissioned women’s estate health and social care review, a perinatal steering group has overseen the development of a pregnancy and post-pregnancy service specification for health and justice commissioners. Publication is anticipated for early next year.

Turning to Amendments 86, 87 and 105, which concern remand and sentencing decisions in cases involving primary carers and pregnant women, I will not repeat the points that I made in Committee, but we consider these amendments unnecessary, since a series of relevant and adequate considerations for courts making such decisions are set out in relevant case law and sentencing guidelines, and, as I dealt with on earlier groups today, ensure that custody is a last resort in all cases.

The case law and the sentencing guidelines, which the courts have to follow, are clear that courts should give full and proper consideration to the fact that someone is either a pregnant woman or a primary carer. However, without wishing to diminish the importance of their consideration, we have to acknowledge that courts have to consider various and often complex circumstances relating to the offence or the offender. Regrettably, there will be cases where the risks posed by the individual or the seriousness of the offending is such that, despite the existence of dependents, custody is deemed necessary.

I listened carefully to the points made by the noble Baroness, Lady Bennett of Manor Castle, and the noble Lord, Lord German, about recall. In the time that I have had to respond specifically to that point, I can tell them that in the three years from June 2018 to June 2021 there was an 18% decrease in the number of women recalled to custody while the comparable decrease for men was 4%. So I acknowledge that there is an issue on recall and I am happy to continue that conversation, but the position has got better.

However, we are clear that delivering public protection and confidence across the system is not just about the better use of custody. As set out in our female offender strategy, we want fewer women serving short sentences in custody and more being managed in the community. As part of that strategy, we have committed to piloting residential women’s centres, which will offer an intensive residential support package in the community for women at risk of short custodial sentences.

I turn to Amendment 85. As I set out in Committee, current legislation already requires the court to obtain a pre-sentence report in all cases unless the court deems it unnecessary on the facts of the case—for example, if the offender had been before the court three weeks earlier and a pre-sentence report was obtained then. This requirement is reflected in the sentencing guidelines, which courts have to follow. When sentencers request pre-sentence reports, guidance introduced in 2019 mandates probation practitioners to request an adjournment to allow time to prepare a comprehensive pre-sentence report in all cases involving primary carers and for those at risk of custody.

I am keen to reassure the right reverend Prelate that a key objective of this Government’s reforms is to improve both the quality and the prevalence of pre-sentence reports in the justice system. We heard first-hand experience from the noble Lord, Lord Ponsonby, about the quality of pre-sentence reports, which can be extremely good. We want to ensure that that quality is consistently good.

[Lord Ponsonby of Shulbrede (Lab)]

I think the point I made is that they are extremely variable.

[Lord Wolfson of Tredegar (Con)]

I am looking at the glass as half full. I acknowledge their variability but we want to improve their standard across the board. It is a little simplistic, if I may respectfully say so, always to assume that a written report is better than an oral report. I know the noble Lord was not making that point but I have heard it elsewhere. He was quite clear from his experience that a good oral report may be better than a written report.

[Lord Ponsonby of Shulbrede (Lab)]

If appropriate.

[Lord Wolfson of Tredegar (Con)]

If appropriate, exactly; it all depends. The sentencers have experience of the nature of the reports that are appropriate in each case.

On that point, we acknowledged in our sentencing White Paper that pre-sentence reports have decreased over the last decade. We specify in the White Paper that, although we do not propose to alter current judicial discretion, we want to build the evidence base around pre-sentence reports. We therefore commenced a pilot scheme in 15 magistrates’ courts in May this year, in collaboration with the judiciary and HMCTS. It strategically targets female offenders, and some other cohorts, for fuller written pre-sentence reports. The process evaluation will be published in autumn next year and will give us the evidence base to drive improvements in pre-sentence reports and make future decisions. We want to preserve a balance between the current legislation and sentencing guidelines and the independence of judicial decision-making. We very much hope and expect that that pilot scheme, which takes into account operational considerations in the courts as well, will enable us to improve the position significantly.

I hope that what I have said—I hope not at too great a length—will persuade the right reverend Prelate and noble Lords that the Government share the concerns underpinning these amendments and, importantly, that existing law and practice, together with the action we are already taking, make these amendments unnecessary. I invite the right reverend Prelate to withdraw the amendment.

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Moved by

[Lord Ponsonby of Shulbrede]

88A: Clause 133, page 126, line 35, at end insert—
“(8) After section 102, insert—“102A Centralised monitoring of court decisions to impose youth custodial remand (1) Within six months from the day on which the Police, Crime, Sentencing and Courts Act 2021 is passed, the Secretary of State must nominate a body to collect, analyse and publish data on the decision-making process of courts when sentencing a child to custodial remand.(2) “Decision making process” refers to the consideration and application of the required Conditions for the custodial remand of children by the court, as set out in the Legal Aid, Sentencing and Punishment of Offenders Act 2012.(3) A report on the findings must be laid before Parliament and published on an annual basis.(4) The first report must be published and laid before Parliament no later than 18 months from the day on which the Police, Crime, Sentencing and Courts Act 2021 is passed.””

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we have been talking about data, and this is another example of collecting data, because the fear is that different parts of the country will remand children in different ways. The bail decisions for youth are a complex set of decisions; they are different as for adults, and it is absolutely and invariably the most difficult decision that any judge or magistrate will make. I can see that it would be easy to have different standards in different parts of the country, and that is the main purpose of this amendment. What I have just said is my subjective view but, of course, unless the data is collated in some way, it is only my subjective view. This is about complexity and a lack of consistency, and it is information on which the Ministry of Justice should really have a view on.

Amendment 89 seeks to raise the age of criminal responsibility from 10 to 12. The current Labour Party policy, which I agree with, is that it should remain at 10. I have been a youth magistrate for 12 years, and I have never seen a 10 or 11 year-old in court. It does happen, of course, but from what I understand is that it happens only in the very most serious cases; only in very extreme cases would anyone that young ever get to court.

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[Baroness Chakrabarti (Lab)]

My Lords,

“No child should suffer such appalling abuse, especially from those who should love and care for them most.”


Who said that? It is not a Christmas quiz. It was the Minister repeating a sentence what feels like a long time ago, but it was earlier this evening in proceedings on this Bill in your Lordships’ House. What if the same child victim of cruelty or neglect survives and grows to act out as a damaged little person as a result of that neglect or abuse?

I am very disappointed to hear about my own party’s position on the age of criminal responsibility, not least because I was reading David Lammy’s comments in the Guardian just a couple of years ago in relation to concern that our age of criminal responsibility, at 10, is too young. I think that we as a society are failing some of our most vulnerable children, including victims of neglect and abuse, and we should not be criminalising them. Given what we know about child development, 10 is way too young. It makes us as a jurisdiction an outlier in the civilised world and that is not something to be proud of.

Perhaps understandably, much of the debate in Committee focused on some of the most notorious cases, including that of Thompson and Venables, but such horrific and notorious cases are few and far between. More often, we are talking about offences such as criminal damage, and it is often looked-after children who are criminalised for offences of that nature. They have already been let down in their lives by their natural parents and/or their adopted parents and are looked after by the state. They then get involved in something that is treated as criminal damage in a care environment and for which neither noble Lords’ children and grandchildren nor mine would ever be criminalised.

[Lord Ponsonby of Shulbrede (Lab)]

I have dealt with that exact point in my time as a youth court magistrate. It is not just children aged 10 or 11. In the past few years—let us say the past five years—I have never seen any child brought to court for criminal damage in their care home. They used to be brought to court because it was an insurance-related issue and a conviction was needed to get the insurance money, but that has been resolved as an issue. In my experience, care homes do not charge their children for criminal damage.

[Baroness Chakrabarti (Lab)]

I am grateful to my noble friend; obviously I do not have his personal experience as a magistrate but just today I looked at published statistics from 2018, which showed that a small number of children were criminalised for criminal damage.

Whether children end up in court or not, if they have criminal responsibility, they can be criminalised. They may never get to court—they may accept an out-of-court disposal—but they will be criminalised and will potentially have a conviction that follows them around for a very long time. This is amoral; it is not the way to treat a vulnerable little person who has probably been neglected and/or abused. They are not ready for criminal responsibility—they are not responsible. All the scientific evidence suggests that their brains are not developed enough at the age of 10.

We weep hot tears for these children when we see them as victims of abuse and neglect, but we do not do so when some of them manage to survive but act out in ways that children will. Some children will never be criminalised for minor theft or criminal damage because they have the protection of their privilege. Other children will sometimes be criminalised, which is wrong in principle and says something very embarrassing about this jurisdiction—even compared with the neighbouring jurisdiction north of the border, as my noble friend pointed out. I do not want to repeat what I said about this in Committee, but I thank and pay tribute to the noble and learned Baroness, Lady Butler-Sloss, and the noble Lord, Lord Dholakia, who have campaigned on this issue for many years to stop us being an outlier in the world.

I note that next year my noble friend Lord Adonis will bring forward a Private Member’s Bill to lower the voting age from 18 to 16—something I will support but I suspect the Government will resist. The Government will insist on 18 for voting purposes and the age of majority, and perhaps take the view that children and young people are not mature enough to vote until they are 18, but heap criminal responsibility on them at the age of 10. That is a mismatch of eight years. Of course. children and young people—indeed, all people—develop slightly differently. Personally, in an ideal world, I would support 16 as a decent compromise. However, that is not the point.

The amendment in the name of the noble and learned Baroness, Lady Butler-Sloss, and the noble Lord, Lord Dholakia, to which I have added my name, settles on just 12. I am afraid that the fact that neither the Government nor my own party can support that, despite report after report from the UN on the UN Convention on the Rights of the Child, is an embarrassment. We are choosing some children over others. These difficult issues about children and criminality are always about other people’s children. However, the difference between believing in and promoting human rights and not doing so is whether you care about other people’s children, and not just at Christmas—and not determining, as a noble and learned Lord said earlier, who is naughty or nice but caring for everyone’s children and all children.

With that, I will spare your Lordships any more of my thoughts on this issue—I feel very strongly about it. I wish your Lordships and your children and grandchildren a very good Christmas when it comes.

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[Lord Wolfson of Tredegar (Con)]

I am happy to respond in writing a little more fully, but I can say—with the caveat that I absolutely share concerns about ethnicity proportions in the youth justice system, and indeed through the criminal justice system generally—that the number of black, Asian and minority ethnic children entering the youth justice system for the first time fell in the decade between 2009 and 2019 by 76%. So there is progress but there is still work to be done. I will look at the Official Report and write with anything further.

[Lord Ponsonby of Shulbrede (Lab)]

I beg leave to withdraw the amendment.

Amendment 88A withdrawn.

Police, Crime, Sentencing and Courts Bill

Lord Ponsonby of Shulbrede Excerpts

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

[Lord German (LD)]

My Lords, the purpose of Amendment 90A in my name is to put beyond any doubt that an application to run a secure school by a local authority or local authorities, either working as an entity or acting in a consortium with others, will be treated on its merit, on the quality of the provision it proposes and can provide. In other words, there will be a level playing field for applications of this kind as for those from other, non-local government bodies. This amendment brings local authorities into the tent. It simply allows them to compete alongside other non-local authority organisations in order that the best provision will prevail, from whichever quarter it comes.

Since the debate on this matter, there have been discussions between the Minister, myself and other noble Lords from around the House and it is now clear that there is a legal route open to local authorities to make a bid for running a secure academy, but such a bid would run counter to the Government’s policy. I will return to this matter shortly, as it is fundamental to the rationale for this amendment.

I want to make it absolutely clear that we on these Benches support the proposal to create secure schools and academies. Youth custody, by its very nature, means that those within them are the most vulnerable and challenging young people. That is why Charlie Taylor, in his review, proposed secure schools as a major way of dealing with the problems of the youth custody system. It is worth remembering two points from his 2016 report. First:

“Children who are incarcerated must receive the highest quality education from outstanding professionals to repair the damage caused by a lack of engagement and patchy attendance.”


Secondly:

“Rather than seeking to import education into youth prisons, schools must be created for detained children which bring together other essential services, and in which are then overlaid the necessary security arrangements.”


These two points reinforce the need for the highest quality provision possible.

Further to that second point in the Taylor point report, the absolute importance of integration was emphasised, not only of education but of a wide variety of services within the work of these schools—health, social care and services providing reintegration following custody are required within the school and not external to it. These are services that local authorities currently provide. Following the logic of local authority statutory provisions, particularly those of the duty of safeguarding and promoting the welfare of their children and the need for a new form of integration, there is much that local authorities can offer.

What is clear is that the skills and abilities of the heads and staff of these secure schools are fundamental. They need the best, and only the best will do. That is why this amendment is so important, because it ensures that local authorities are not excluded from providing secure schools, simply because of their nomenclature as academies.

The letter from the noble Lord the Minister to my noble friend Lord Marks makes two fundamental points: first,

“it would be legally possible for a local authority to set up an entity capable of entering into academy arrangements”

with the Government; but, secondly,

“it is the policy of the Government that … no academy in England is operated by a local authority.”

The key issue here, then, is the use of the words “secure academy” rather than “secure school”. It is not a matter of who would be the best provider offering the very best and highest quality of education and integrated services outlined in the Taylor review and accepted by government. It is worth recalling that, when the Taylor review was published, the Government in a Ministerial Statement two days before the publication—which is quite interesting—referred to the setting up of two secure schools, one in the north and one in the south, and used the words “secure schools”. It is only in recent months that the word “academy” has moved into the nomenclature used for what was initially designed to be secure schools and was recognised by the Government as being secure schools.

Local authorities certainly have expertise in the provision required, but this amendment does not seek to favour them. It simply says that if they can produce the best provision needed, they should do the job. In doing so, they would have to follow all the frameworks set out by government, for example, on the devolution of decision making to the head, staff and governors. There would be no difference in the tender requirements, but these secure academies require the very best. To exclude a group of well-placed potential providers is a mistake.

As the noble Lord the Minister says in his letter to my noble friend Lord Marks, it is not a matter of the law but of the Government’s policy. That is why this amendment puts the matter beyond doubt. I and, I am sure, all noble Lords here will want the very best provision, from wherever it comes. I am not arguing that local authorities should win these bids, merely that they are given the chance to try. This legislation should provide the certainty that those who may be able to provide the best will not be left out. That is why I believe this amendment is important to put beyond doubt that all will be available and everyone can make a bid to run these services. I beg to move.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I start by reminding the House that I sit as a magistrate in youth and family courts and, as such, send youths to secure accommodation for welfare reasons and as a result of offences they may have been convicted of in the youth court. To make it clear, the Labour Party supports Amendment 90A, which the noble Lord, Lord German, has just spoken to. My Amendments 90B to 90F look at a different aspect of secure accommodation.

The amendments in my name seek to address national shortage in secure accommodation by placing a duty on local authorities to assess the local need and create a strategy to deal with that need. In Committee, Peers from across the House highlighted the significant lack of secure beds in certain areas that leaves children being dispersed across the country, sent to unsuitable establishments or unnecessarily remanded in custody. The Government responded by saying that they are taking steps to support local authorities to maintain existing capacity and to expand welfare provision in secure children’s homes.

There are currently no secure children’s homes in London, with London children being placed in justice and welfare placements in secure accommodation an average 124 miles from home. This is disruptive for the children, their families and the services supporting them. There are other significant geographical gaps across the country. Currently there are only 15 secure children’s homes in England and Wales. This amendment places a statutory duty—a requirement—on relevant local authorities to address this issue.

Following the Government’s response to the amendment in Committee, the Mayor of London’s office stated that the reality of the £259 million referred to by the noble Lord, Lord Wolfson, is that it will take some time to translate this into available secure beds. This is especially true given that there is no indication of how that funding will be apportioned across the country to address the geographical gaps to which I have referred. There is also no commitment to ensuring that both welfare and justice placements are provided for within this funding. This is also a gap in the answer given by the noble Lord. Therefore, the additional funding does not remove the need for relevant local authorities to assess the need for secure accommodation and to develop a strategy for any shortfall.

In conclusion, I will repeat a statement given by Lord Justice Baker. This is the ruling on an appeal brought in July 2021 by Just for Kids Law against Waltham Forest Borough Council which successfully argued that the failure by local authorities in London to provide appropriate alternative accommodation for children was unlawful. He said:

“The absence of sufficient resources in such cases means that local authorities are frequently prevented from complying with their statutory obligations to meet the welfare needs of a cohort of vulnerable young people who are at the greatest risk of harm. The provision of such resources is, of course, expensive but the long-term costs of failing to make provision are invariably much greater. This is a problem which needs urgent attention by those responsible for the provision of resources in this area.”


If the noble Lord, Lord German, chooses to put his amendment to a vote, we shall support it. Nevertheless, I have raised other issues which I hope the Minister will respond to in his reply to this group of amendments.

[Lord Carlile of Berriew (CB)]

My Lords, the aim of this exercise is to ensure that children who enter custody leave it better educated, better able to become part of normal working society and better able to function in a family environment. When Charlie Taylor produced his advice, which has already been mentioned, on the education of children in custody, his aims were exactly those: to ensure that the quality of education in custodial institutions, which currently is extremely variable, from the excellent to the terrible, should reach a good standard, comparable with that provided by decent schools around the country.

There is an issue about numbers. I would not like it to be taken that every local authority will be required to provide an educational provision for those children who come from that local authority. I know that is not what the noble Lord, Lord Ponsonby, with all his knowledge of this issue, is aiming at. There are well under 1,000 children in custody—significantly fewer than there used to be—which, after all, is the roll of a typical London comprehensive school as we speak. It would not be in the public interest to have a large number of academies for children in custody around the country because it would not be possible to supply the quality of education. However, as Charlie Taylor emphasised, we need the balance between having good schools or academies—whatever one calls them—for children in custody and local authority provision of the kind envisioned by the noble Lord, Lord Ponsonby, which ensures that they are kept in touch with their communities and their families and where they will probably go back to live after they leave custody.

It seems to me that, if all that is right, it is beyond argument that local authorities should be able to participate in this process without hindrance and establish educational institutions for those in custody, and that there should be as few obstacles in their way as possible. Once that is achieved, they will have to compete with everyone else who is in the area—that is perfectly sensible—but it would be wrong, for policy reasons that are, in my view, poorly conceived, to obstruct a legitimate role for local authorities.

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[Lord Paddick (LD)]

My Lords, I do not intend to repeat the arguments that other noble Lords have made and those that I made in Committee; they are in the official record. Existing legislation and procedures, properly applied, are sufficient to ensure the safety and well-being of all prisoners and staff in our prisons in relation to transgender prisoners. I am sure that the noble Lord the Minister will confirm that.

Because I have said, in answer to a suggestion on Twitter, that I felt that the existing risk-based approach was best, I was sent a direct message on Facebook from somebody I have never heard from before saying, “Leave women’s rights alone you nasty little misogynist. We see you loud and clear. Trans rights simply means male rights. Enjoy your irrelevance MRA bigot”. Whatever MRA stands for, I have no idea. Of course, as the noble Baroness, Lady Fox of Buckley, has said, we need to consider the rights of women—of course we do—but transgender people also have rights, and their rights need to be balanced. The best way to do so is on a case-by-case basis.

The noble Baroness, Lady Meyer, and the noble Lords, Lord Cormack and Lord Farmer, talked extensively about transgender people who had not undergone gender reassignment surgery, or transgender women who are still physically men. There is nothing at all in this amendment about the physical state of transgender people; it applies in a blanket manner to every single transgender person. The fact is that every prisoner entering the prison estate is risk-assessed to ensure that they are not a threat to themselves or others, and they are then housed or segregated on that basis. If that assessment has been wrong on rare occasions in the past, the problem was not with the system, let alone with the law; it was a problem with implementation. I understand, however—and I am sure that the Minister will confirm—that that is no longer a problem. This amendment is not necessary and we oppose it.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I too will be relatively brief. This debate is about balancing rights and balancing vulnerabilities, and I have been following it over months if not years. Unfortunately, I did not go to the teach-in organised by the noble Lord, Lord Wolfson. However, I have been to other events on Zoom where I have spoken to prison officers and the people involved in managing the situations discussed here. It is apparent to me that there has been an evolution in the prison officers’ and governors’ approaches. I have spoken to a number of them several times. I spoke to one women’s prison where transgender units operated for a period, and the way they were operated was later changed. I have to say the governors I spoke to seemed—I do not want to use the word “relaxed”—to think that they could manage the situation. That is what I was told, and I have every reason to believe in their professionalism in dealing with an evolving situation—as we have heard from noble Lords, there is an increase in trans prisoners; the figure of 20% since 2019 was mentioned.

I have visited quite a few prisons over the last 10 years and I am always impressed by the quality of the prison staff, the governors and the prison officers. The basis of my view is that I trust them to make the right decisions. I think they are dealing with very difficult circumstances and I think that they can manage risk. As the noble Baroness, Lady Barker, said, they have policies which have evolved over a period, which include the safety of the prisoners and the staff. I was pleased to hear that during the teach-in the Minister said that he is willing to support further research into this matter. It is an evolving situation, but for my part I am content that the current complex case boards that make these difficult decisions should continue to do their work.

[Lord Wolfson of Tredegar (Con)]

My Lords, this amendment relates to the management of transgender prisoners. The result of the amendment would be that transgender prisoners would “ordinarily”—and that word is used twice in the amendment—be held in a prison matching their sex as registered at birth. I will come back to that word “ordinarily” later on.

I should first record my sincere thanks to the noble Lord, Lord Blencathra, for his time. I am pleased that he found the teach-in with officials from the MoJ and HMPPS to be helpful. I am grateful also that my noble friend Lord Cormack and the noble Baroness, Lady Fox of Buckley, were able to attend the teach-in. I am conscious, from what they said then and this evening, that I did not persuade them at that time. I am not sure that I am going to persuade them in the next few minutes, but I am going to try.

I am not proposing to refer to anything said on Twitter. That is despite the fact that I think I am one of the few ministerial twitterers—or is it tweeters?—around. My tweets have become a lot duller since joining the Front Bench, but I can say that on this subject Twitter exhibits heat and no light whatsoever. I am grateful for the relative safety and sanity of your Lordships’ House.

Under the amendment, transgender prisoners who are not held with prisoners matching their sex as registered at birth would be held in separate accommodation such that they have no contact with people of their acquired gender. That is the inescapable result of the amendment. I suggest that it is unnecessary. Transgender prisoners can already be held in prisons in matching their sex as registered at birth where this is assessed as appropriate. In practice, the vast majority of transgender prisoners are already held in prisons matching their sex as registered at birth. The small number who are held otherwise have been through a rigorous multi-disciplinary risk assessment process. There is already provision, as I will explain in a moment, for transgender prisoners to be held separately from other prisoners of their acquired gender if doing so is deemed necessary.

We take the allocation of transgender prisoners extremely seriously. This is a subject which, as the last hour or so has demonstrated, arouses a lot of controversy and passion. But the approach we have put in place allows us to strike an appropriate balance—the noble Lord, Lord Cashman, put his finger on that as the right word, as it is a balance—between the safety, rights and well-being of transgender prisoners and that of all other prisoners in the estate.

Police, Crime, Sentencing and Courts Bill

Lord Ponsonby of Shulbrede Excerpts

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

[Lord Paddick (LD)]

My Lords, at last, much credit must go to the noble Lords, Lord Lexden and Lord Cashman, and to Professor Paul Johnson, but also to the Minister, who accepted the challenge from the noble Lords and ran with it. I understand the right honourable Priti Patel took little persuasion. Whether that is the Minister being modest or not, I have nothing but thanks and praise for all those involved.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I feel privileged to come in at the tail-end of this six-year campaign. I have to say I found it very moving listening to my noble friend Lord Cashman and the noble Lord, Lord Lexden, who does me the privilege of taking an interest in my family history. I have followed his campaign on this matter as well. I also note the points he made about the position in Northern Ireland. It has been a six-year campaign—to use the words of my noble friend—to wipe away the stain on history. It seems to me these amendments are doing this. I also join in the praises from the noble Lord, Lord Paddick, of the Minister, who appears to me, as a latecomer to this, to have been with the campaigners every step of the way.

[Baroness Williams of Trafford (Con)]

My Lords, I thank all noble Lords for their kind comments. It is lovely when unity breaks out in this House, particularly when that unity has been hard fought. On the union—I take my noble friend’s points about Northern Ireland—I will certainly relay those comments to the Minister for Justice. I would imagine that the publicity will start on commencement of the Bill and be published on GOV.UK. There has already been some great publicity on social media and elsewhere, so publicity is already under way.

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Moved by

[Lord Ponsonby of Shulbrede]

97A: Clause 168, page 189, line 36, after “in any court” insert “subject to subsection (1A)”

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, in moving Amendment 97A, I will speak briefly to Amendment 97B. These amendments seek to remove children from the application of Clause 168, providing that remote observation and recording of court proceedings may not occur in cases where a party to the proceedings is a child under the age of 18. Amendment 97C, also in the group, provides that the court may not give directions for live links in criminal proceedings where a party to the proceedings is a child under the age of 18.

I take on board the comments made in Committee that these are blanket amendments which may not necessarily be appropriate in all cases. What has given rise to these amendments is concern about the drift to greater use of video hearings without adequate safeguards. Amendment 97CA in the names of the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Judge, would prevent a criminal trial proceeding with the jury or members of the jury in a different physical location from the judge, witness or counsel. We would support this amendment should the noble Lord decide to move it to a vote, but I will leave him to advocate for his own amendment.

Amendment 97D seeks to require that all defendants who might appear on a video or audio link from a location outside court should be subject to a health needs screening. Screening information must be made available to the judge responsible for listing before the listing is finalised; it is this amendment that I want to concentrate on. As I have said, it seeks to require that all defendants who might appear on video or audio link are subject to health needs screening. I have a quite extensive briefing from various advocacy groups, including Fair Trials, Transform Justice and Just for Kids Law, which are concerned about the greater use of video links that we have all experienced. Certainly, anyone who works in the criminal justice system has experienced this in the last couple of years. The concern is that some of the changes we have seen are not necessarily positive, and there should be a resistance to permanently moving to a greater use of video links.

The central point is that the judiciary should make an informed decision about whether a case should go ahead via some form of video link. The decision should be informed by a mental or physical health assessment of the young or vulnerable person. It seems to me that that is an unanswerable point. I have been in the position of making these decisions in circumstances that were very far from adequate. I have done so because of the expediency of the situation and the urgency of dealing with the cases that have come before me—but this must not be allowed to become the norm.

Video links have a purpose. They can in some cases help to get a case moving forward so that a just decision can be reached, but in most cases they are not appropriate. A judge or magistrate needs to be able to make an informed decision about whether to proceed with video links for whatever bit of process they are dealing with within the court system.

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For those reasons, I invite the noble Lord to withdraw the amendment.

[Lord Ponsonby of Shulbrede (Lab)]

I beg leave to withdraw Amendment 97A.

Amendment 97A withdrawn.

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[Lord Paddick (LD)]

My Lords, I am very pleased to support the noble Earl, Lord Attlee, in his amendment, to the extent that I have added my name. We had discussions between Committee and Report; we agreed that the actual assault was covered by existing legislation, but the preparatory acts in preparing these disgusting attacks on prison staff needed to be addressed. That is how we arrived at the revised amendment, and I am very happy to support it.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I pay tribute to the noble Earl: he has been dogged in his pursuance of this and I understand he has had constructive discussions with the Minister. I look forward to what the Minister is going to say to, in the noble’s Earl words, flesh out the proposals in the White Paper, and how these may lead to greater support for prison officers. One specific question for the Minister is how they propose to monitor potting and whether it is done by somebody acting in extreme distress or whether it is part of a planned tactic, if you like, within the prison.

In conclusion, I repeat my tribute to the noble Earl—it appears to me that his time in the TA may have led to his having some empathy with prison officers. I do not know, but nevertheless I support his amendment.

[Lord Wolfson of Tredegar (Con)]

My Lords, I also thank my noble friend Lord Attlee for tabling this further amendment on potting, which is vile behaviour and undoubtedly a horrific experience for those who become victims of this practice. I say unambiguously that it is therefore right that such incidents are prosecuted where there is sufficient evidence or that they are otherwise dealt with through prison adjudication.

My noble friend was particularly concerned about the availability of spit kits to collect evidence where crimes are committed. I hope that I can reassure him by saying that some prisons already purchase spit kits locally as a matter of course, but we will consider further whether there is a need to make them available to prisons nationally, as part of our focus on reducing crime in prisons.

Earlier discussions with the police and CPS confirmed that the use of body-worn cameras, rather than spit kits, would offer the greatest means of providing evidence to enable prosecution of crimes in prisons. That is why we have concentrated on providing these. Indeed, we are introducing a new generation of body-worn video cameras during this year, with newer, more technologically advanced cameras that will be available to every prison officer who needs one. They include a pre-record facility that effectively records and overwrites footage—so the pre-record footage is saved when you press a button. They are similar to cameras that are available to other people in the criminal justice system and mean that it will be easier to provide evidence of potting and therefore to support a prosecution.

The noble Lord, Lord Paddick, correctly identified that, in the amendment, this is a preparatory offence and tries to capture behaviour even where the act of potting itself may not yet have occurred or have occurred at all. The offence would apply where an individual possesses, provides or allows others to use their bodily fluids, intending them to be used for malicious purpose—and where an individual has assisted, aided or encouraged a crime. Of course, doing those preparatory acts is already a crime under Sections 44 to 46 of the Serious Crime Act 2007 or possibly under the Criminal Attempts Act 1981. The penalties for those preparatory offences are the same as those for the substantive offence.

We are also concerned about a practical difficulty: collecting urine samples may be impeded by the wording of this amendment. We are also concerned that it does not offer, in terms, a defence for those who do not intentionally facilitate this but whose bodily fluids are used by someone else for a malicious purpose. However, I will not say any more about that because my noble friend has recognised that the Government have listened to him on this and are taking the matter seriously. We recognise that more can be done to improve the effective prosecution of crimes in prison. It is a priority, and we will continue to work to ensure that those agencies and organisations prioritise serious crimes, enabling clear criminal consequences when they occur. HMPPS works with the police and CPS to improve rates of prosecutions for crimes committed within prisons.

I know that my noble friend is motivated by his admiration of the work of prison officers—I will not speculate about the genesis of that. But the fact is that they have to deal with some of the most difficult and dangerous members of our society. We in the Ministry of Justice share that view. In the prisons White Paper, published in December last year, we set out a zero-tolerance approach to crime in prisons. We will set up a crime in prisons task force, which will identify and expose any systemic failings that allow continued criminality in prisons, enhancing our capabilities to disrupt crime and ensuring that evidence and investigations lead to more criminal justice outcomes. We will commission the taskforce to look specifically at potting offences.

The White Paper also sets out our commitment to refer the most serious crimes, such as assaults on prison officers, to the police, in accordance with the crime in prisons referral agreement, which exists between Prison Service, the CPS and the National Police Chiefs’ Council. I appreciate that I have dealt with that fairly quickly, but I hope that I have reassured my noble friend that the Government have listened very carefully to what he has said.

I will respond to the point put to me by the noble Lord, Lord Ponsonby. Offences of potting are captured in published statistics—specifically the quarterly Safety in Custody Statistics. But if I can add anything to what I have just said, I will write to him. I hope that, for those reasons, my noble friend will feel able to withdraw his amendment.

Police, Crime, Sentencing and Courts Bill

Lord Ponsonby of Shulbrede Excerpts

Report stage
Wednesday 12th January 2022 Lords Chamber

[Lord Paddick (LD)]

My Lords, I remind the House that at one stage in my police career I was the lead for the Metropolitan Police on restorative justice, working with Professor Larry Sherman. The evidence from that experience and other academic studies shows that the benefits to victims, in terms of allaying fear and victim satisfaction, and to perpetrators, in terms of engagement with the criminal justice process, and by being confronted, as the noble Lord, Lord Laming, has just said, by their offending behaviour, and in terms of reducing recidivism, are unequivocal.

The only objection to the amendment would be political, because restorative justice is wrongly perceived by those who do not understand the process as going soft on offenders; it is the opposite. I agree with the noble Lord, Lord Laming, about short sentences. However, on the point made by the noble Lord, Lord Cormack, it does not necessarily have to be an alternative to prison in very serious cases. The important outcomes are victim satisfaction and the offender having to confront their offending behaviour.

The Minister may argue that people get a long time in prison in which to reflect on their wrongdoing. However, a colleague of mine did some research on street robbery and went to a young offenders’ institution to interview those who had been convicted and incarcerated for that offence. Many of those he spoke to did not understand why they were in the young offenders’ institution. The process was so detached from them—they just sat at the back of the court while other people spoke and dealt with the case, without their involvement at all. They genuinely did not understand why they were in prison. That is why restorative justice is important.

The question is: are the Government going to be led by the evidence and support this amendment, or are they going to object to it, based on misconceptions?

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I, too, support the amendment. It is modest and worth while, and is another step down the road.

I remember that the noble Lord, Lord McNally, introduced the phrase restorative justice into the statute book. I cannot remember which piece of legislation it was but at that point he spoke perceptively when he said that it was going to be a long road to get restorative justice embedded within the criminal justice system, whether in terms of probation, YOTs or prison. He was right and the necessity for the amendment proves that because the noble Baroness, Lady Meacher, gave a number of examples, including where the funding or initiatives have stalled and the momentum with restorative justice has been lost. From memory, the initial introduction of restorative justice was through a separate funding stream for YOTs to use these programmes. So I very much support the amendment. It needs constant activity and oversight by a Minister to get the restorative justice programmes embedded in the system as a whole.

One reason why what I am saying is perhaps more relevant than what some noble Lords have said is that I have some scepticism on the issue. I am happy to have a cup of tea with the noble Baroness, Lady Meacher, to express my scepticism. While I support the amendment, it requires a long-term programme, and it is for the Government to make sure that that programme is implemented.

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[Lord Faulks (Non-Afl)]

Before we hear from the Minister and the noble Lord for the Opposition, I shall simply add that of course the aims identified in this amendment are probably shared by everybody in your Lordships’ House but, ultimately, is it not for the Government of the day to decide on these things? I think we can probably predict what most royal commissions would recommend following the terms of reference reflecting this amendment. Ultimately, a Government have to decide whether in certain circumstances, as was the case in the Bill, there need to be mandatory sentences or the prison estate needs more money spent on it. These are matters for government. I will be interested to hear what the noble Lord for the Opposition says about this; during the course of the Bill, I do not think the Labour Party has opposed the increased mandatory sentences in various areas. That is a position it is entitled to take. A royal commission can recommend; a Government have to decide.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we support this amendment and every element of what the noble Lord, Lord Marks, said when he was introducing it. It is about criminal sentencing. My noble friend Lord Bach raised the question of a royal commission on the criminal justice system as a whole, and I will be interested to hear the Minister’s response on that.

The noble Lord, Lord Faulks, correctly identified that in this Bill the Opposition have supported some measures that have led to increased sentences. In a sense, the heart of the problem is that the constant inflation of sentences is leading to the overarching problem we have now with overcrowding and squalor in our prisons and a lack of effectiveness in our out-of-court sentences. I understood that to be the main purpose of the royal commission.

I want to give a very simple example of my role as a magistrate sentencing, as I was yesterday, in a magistrates’ court in London. As a magistrate, I have powers to sentence up to six months’ custody for a single offence. When, on occasion, I do that, I simply do not know how long that person will spend in custody. When I first became a magistrate about 14 years ago, I used to say to the offender, “You will spend half your time in custody and then, at the discretion of the prison governor, you will get out”. I do not say that any more because I do not know whether it is true. Sometimes the offender will get out after one-quarter of their sentence, if there are particular reasons and it is a non-violent offence, and sometimes, if they commit relatively less serious offences while they are in prison, they may serve their whole term, so I simply do not say that any more when I am sentencing.

That is a very particular example; there are many examples within sentencing as a whole where any sentencer, including a magistrate, is asked to use fairly obscure phrases which are not simple to understand for the person being sentenced. There is a role for an overall look at this to try to have consistency in sentencing and the words used while sentencing. The noble Lord’s amendment goes further than that as it is looking at community sentences as well. There really is a strong need for an overarching view of criminal sentencing.

[Lord Wolfson of Tredegar (Con)]

My Lords, this amendment, tabled by the noble Lord, Lord Marks of Henley-on-Thames, would require the Secretary of State to establish a royal commission to review and report on criminal sentencing. The amendment was tabled in Committee and I am glad to have the opportunity to further clarify the Government’s position on this matter.

First, let me pick up the direct question put to me by the noble Lord, Lord Bach, which I think was echoed by my noble friend Lord Cormack and mentioned by the noble Lord, Lord Ponsonby of Shulbrede. The 2019 Conservative manifesto did commit, as noted in Committee, to set up a royal commission on the criminal justice system. Work to set up that royal commission was slowed at the onset of the pandemic to focus on the very practical matter of ensuring that the criminal justice system could continue to operate—as it did, thanks to a lot of hard work by staff up and down the country—in a Covid-safe environment. As work on the commission was paused, officials were redeployed to other work and other roles in government.

Significant new programmes of work have now been stood up to support recovery and build back a better criminal justice system. That means that many of the areas the royal commission was due to look at are now being progressed more quickly, for example on efficiency and effectiveness of the system. That includes ensuring that all component parts of the extremely complex system—which we call the criminal justice system but is an amalgam of all sorts of systems—work together to deliver swifter justice for victims. As I said on the last group, on 9 December we announced our consultation on a new victims’ Bill to improve the level of service victims can expect from the criminal justice system. We remain committed to delivering our manifesto commitments. However, we think it is right to continue to pause the work on the royal commission on the criminal justice system while we focus on delivering these priorities over the coming months. We will then revisit what further role there is for the royal commission.

At the same time, let me clarify a point of confusion, which may have been behind the noble Lord’s question— I do not know. To be very clear, the amendment, as drafted, calls for a royal commission on criminal sentencing, not a royal commission on the criminal justice system. For the record and to make it very clear, when my noble and learned friend Lord Stewart of Dirleton previously responded and assured the Committee that a royal commission of this nature was unnecessary, it was the royal commission on criminal sentencing in the amendment that he was referring to. I see the noble Lord nodding and I am grateful; I did not want there to be any confusion on the point.

The sentencing White Paper published last year set out the Government’s proposals for reform to the sentencing and release framework. Work is under way on the non-legislative commitments made there; the legislative measures are being delivered by the Bill. I can assure the noble and learned Lord, Lord Thomas of Cwmgiedd, that we want to adopt a strategic approach here. We believe that the White Paper delivers that, but I am sure that the conversations on these points will continue. I agree with the noble Lord, Lord Beith, that the taxpayer’s pound is an important factor here. We want value for money in this and other areas of government. The rationale of the White Paper is to deliver a smarter, more targeted approach to sentencing. The most serious violent and sexual offenders should serve sentences that reflect the severity of their offending behaviour.

I say to the House in general, responding in particular to the point made by the noble Baroness, Lady Fox of Buckley, that it is crucial that the Government listen when there are issues on which the public feels strongly, and there are some offences that society finds particularly concerning and, indeed, offensive. At the same time, for lower-level crimes, we are making community sentences more effective, so they can offer an appropriate level of punishment and address the underlying drivers of offending. As part of that—to pick up the point made by the noble Baroness, Lady Jones of Moulsecoomb—we do of course look at the particular issues facing women in prison. We have discussed that on a number of occasions, and I intend no discourtesy by not repeating now what I have said before. We have spoken, and we have focused as a Government, on the needs of women in prison and sentencing women to prison, particularly the primary carers issue, which we have discussed and debated.

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Moved by

[Lord Ponsonby of Shulbrede]

104B: After Clause 172, insert the following new Clause—
“Video recorded cross-examination or re-examination of complainants in respect of sexual offences and modern slavery offences
(1) Section 28 of the Youth Justice and Criminal Evidence Act 1999 comes into force in relation to proceedings to which subsection (2) applies on the day on which this Act is passed.(2) This subsection applies where a witness is eligible for assistance by virtue of section 17(4) of the Youth Justice and Criminal Evidence Act 1999 (complainants in respect of a sexual offence or modern slavery offence who are witnesses in proceedings relating to that offence, or that offence and any other offences).(3) This section has effect notwithstanding section 68(3) of the Youth Justice and Criminal Evidence Act 1999.”

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the proposed new clause in Amendment 104B would bring Section 28 of the Youth Justice and Criminal Evidence Act 1999, which provides for the cross-examination of vulnerable witnesses to be recorded rather than undertaken in court, fully into force for victims of sexual offences and modern slavery offences. When we debated this in Committee, the point was made that there have been a number of pilots of this approach in, I believe, three Crown Courts in England and Wales. A further point was made in the response by the noble and learned Lord, the Advocate-General for Scotland, that it would be judge-intensive to have judges present when recording the evidence. For those reasons, we were invited to reject the amendment.

In response to those points, I ask the Minister when the results of the pilot will come forward, so we can have an informed decision about whether to roll out this approach. I also question the assertion that this is a very judge-intensive process because judges have to be present when the recordings are made. I made this point to the Minister when we met in private a few days ago. I have done this procedure several times within youth court and, as far as I am aware, there was never a judge or magistrate present then. I have also done this process in Crown Court and for an appeal. On that instance, I was sitting as a winger and there was a Crown Court judge in the middle. We heard the evidence by videolink and, again, as far as I was aware, there was no judge present. So I question the assertion that it would be very judge-intensive to use this approach in the adult court for victims of sexual offences and modern slavery offences.

The proposed new clause in Amendment 104C would give the complainant a right of representation with legal aid, if they are financially eligible, to oppose any application to admit Section 41 material about them. It would also give complainants the right to appeal to the Court of Appeal if the application is allowed, in whole or in part. The proposed new clause also provides that the complainant is not compellable as a witness at the application. I am grateful to the noble Baroness, Lady Jones of Moulsecoomb, for putting her name to this amendment.

This issue was again explored at some length in Committee. My noble and learned friend Lord Falconer made the point that it is very sensitive. If there is the possibility of somebody’s sexual history becoming known in a wider context within court, it acts as a cooling method for people making allegations. This is a way around that problem to try to give people the confidence to come forward and make complaints of sexual assaults.

Amendment 107C is in the name of my noble friend Lord Coaker. It would require police forces to have a specialist rape and serious sexual offences, or RASSO, unit. As background, I have three facts to share with the House. First, two-fifths of police forces currently do not have one of these units, which specialise in the prosecution of rape and serious sexual offences and supporting victims of these offences. Secondly, the current prosecution rate for reported rapes is about 1.4%. No matter how many times we hear this statistic, it remains deeply shocking. Finally, Home Office figures show that the number of victims dropping out of prosecutions has increased to a record 41%. In each of these cases, we are failing to deliver justice for a victim and to tackle a dangerous predator.

MPs and noble Lords from across this House have worked, with limited success, to make tackling violence against women and girls a part of this Bill, including explicitly recognising violence against women and girls as serious violence under the serious violence reduction duty. We are in a situation where this Government may pass a flagship piece of criminal justice legislation without including any specific plans to improve the investigation and prosecution of rape and serious assaults. This issue needs to be taken forward in partnership with the police and finally recognised as a priority. I look forward to what I hope will be a positive response from the Minister and beg to move.

[Baroness Jones of Moulsecoomb (GP)]

I reassure noble Lords that I will not be speaking on every amendment today, but I regret that all those that we have discussed so far, including this one, will not go to a vote. That is a real shame, because they are so sensible.

I congratulate the noble Lord, Lord Ponsonby, on tabling the amendment to which I have put my name. I support all the amendments in this group, not just Amendment 104C. The criminal justice system is hugely distrusted by survivors of sexual violence, based on the way they are treated when they come forward to make a complaint. There have been some important steps forward over the years, but trust is still far lower than it needs to be for survivors to come forward, go through the whole criminal justice system and have their lives pored over. Granting the right to complainants to be represented by a lawyer in an appeal to adduce evidence on questions of sexual conduct would be an important leap forward. The complainant is seen as a neutral third party with no particular legal rights, rather than someone deserving legal protection and representation, and this really has to change.

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I hope that I have responded on each of the amendments. Although I appreciate that a few points of difference between us will remain, I hope that the noble Lord will none the less be able to withdraw the amendment.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank the noble Lord for his assurances, and I beg leave to withdraw my amendment.

Amendment 104B withdrawn.

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Moved by

[Lord Ponsonby of Shulbrede]

104E: After Clause 172, insert the following new Clause—
“Offence of requiring or accepting sexual relations as a condition of accommodation
(1) It is an offence for a person (A) to require or accept from a person (B) sexual relations as a condition of access to or retention of accommodation or related services or transactions.(2) For the purposes of this section, A is—(a) a provider of accommodation,(b) an employee of a provider of accommodation,(c) an agent of a provider of accommodation, or(d) a contractor of a provider of accommodation.(3) A person guilty of an offence under this section is liable on conviction on indictment to imprisonment for a maximum of 7 years.”

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, this group of amendments seeks to introduce new offences to make it illegal to have sex-for-rental accommodation. Currently, sex for rent was affirmed as a sexual offence in 2017 by the Ministry of Justice. Under the current legislation, an individual can be prosecuted for such a crime only under Section 52 of the Sexual Offences Act 2003—causing or inciting prostitution for gain. Only one person has been charged in a sex-for-rent case, and only as recently as a year ago.

The law itself has made it extremely difficult for sex-for-rent victims to seek justice. According to the law, victims must be legally defined as prostitutes, which is a huge deterrent in their access to justice. Another reason why this scandal continues virtually unchecked is that landlords are able to advertise sex for rent in their properties very easily. Landlords still post on sites such as Craigslist, where they talk about free house shares, room shares or even bed shares, and even some of the postings are extremely explicit about the requirement of sex for rent.

Amendment 104E would create a new offence of requiring or accepting sexual relations as a condition of rental accommodation, with a maximum sentence if convicted of seven years. Amendment 104F would create a new offence of arranging or facilitating the requirement or acceptance of sexual relations as a condition of rental accommodation, with a maximum fine of £50,000. That would of course be for those who allow the advertisements on their websites or allow any other form of this type of advertising.

Amendment 114A would put a requirement on the Secretary of State to establish a review into the prevalence of, and the response of the criminal justice system to, the offence of administering a substance with intent under Section 61 of the Sexual Offences Act 2003. This is a separate point, and it is something that has had a lot of publicity recently. What is not known is how much of that has been drummed up by the press, if I can put it like that, and how much is real. Nevertheless, the concern that has been raised is certainly real, and this amendment would put an obligation on the Government to get to the bottom of the matter and see whether it is a real problem that nightclubs and other people need to take action to stamp out.

Amendment 114B would put a requirement on the Secretary of State to establish a review of the offence of exposure under Section 66 of the Sexual Offences Act. Again, this is a separate and wider issue, which has ramifications regarding violence against women and girls and the question of whether it is a step along that road. It is right that it should be viewed in its wider context. As a sitting magistrate I see these cases fairly often; they are highly variable and the perpetrators range completely across the social spectrum. Nevertheless, the impact on the women and girls who are subject to these exposures is real, and I am sure there is sufficient data to see whether people who expose themselves progress to much more serious offences.

However, it is fair to say that the main purpose of this group of amendments is to put in new offences of illegalising sex for rent. I beg to move.

[Earl Attlee (Con)]

My Lords, I am grateful to the noble Lord, Lord Ponsonby of Shulbrede, for tabling Amendments 104E and 104F, because this gives me an opportunity to speak to them as I was not available at an earlier stage.

My first point is that sex for rent is invariably immoral and abhorrent and frequently evil, so I agree with the sentiments expressed by the noble Lord today and by noble Lords the last time we debated it. Unfortunately, I share the concerns expressed by the noble Lord, Lord Marks, in Committee on 22 November last year. Like the noble Lord, I am worried about the unintended consequences. He asked:

“What about the landlady of the bed and breakfast who seduces the potential paying guest and offers him or her a free room in return?”—[Official Report, 22/11/21; col. 684.]


The problem is not so much in the drafting but in the way that the amendment works. For instance, I worry about the use of the word “provider”. Does the proposed offence catch a young, affluent male student who has a spare bed or room to offer a female student, partially or wholly in exchange for sex or an intimate relationship?

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[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank all noble Lords who have taken part in this debate. It has been quite quick but focused on the issues raised in this group of amendments.

The noble Earl, Lord Attlee, raised some reservations and talked about the nature of the victims. I advise the noble Earl to read very carefully what my noble friend Lady Kennedy said when she itemised the victims of this offence. It is overwhelmingly women who are victims of this offence. The numbers are very large and it has been going on for years. My noble friend is an expert on this matter and I think his remarks were misplaced, if I can put it like that.

[Earl Attlee (Con)]

My Lords, I have no issue with what the noble Lord said, nor with what the noble Baroness said. This problem has been going on for a very long time and large numbers are involved; I do not disagree with that.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I move on to the comments of the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Hope. I am grateful for their support. They raised drafting issues, if I can put it like that, around the word “arranging” in Amendment 104F, and the noble and learned Lord, Lord Hope, questioned the use of the word “publisher”—although my noble friend Lady Kennedy said that she regards “publisher” as including online platforms. Nevertheless, I am not stuck with the specific wording in front of us. I think the purpose of the amendments is perfectly clear, and I am glad that both the noble Lord and the noble and learned Lord are nodding their heads.

I was disappointed with the answer given by the Minister. She made it clear that the Government take these issues seriously and said that they are constantly reviewing the law on these matters, but here is an opportunity to change it right now. There has been a very effective campaign on this issue, and it would have been an opportunity for the Government to change their approach. So I think that we on this side of the House should force the issue and test the opinion of the House, just to see the strength of opinion on this long-standing problem.

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Moved by

[Lord Ponsonby of Shulbrede]

104F: After Clause 172, insert the following new Clause—
“Offence of arranging or facilitating the requirement or acceptance of sexual relations as a condition of accommodation
(1) It is an offence for a person, who may in particular be a publisher, to arrange or facilitate an offence under section (Offence of requiring or accepting sexual relations as a condition of accommodation).(2) A person commits an offence if they intend to arrange or know that their actions would facilitate an offence under section (Offence of requiring or accepting sexual relations as a condition of accommodation).(3) A publisher commits an offence if they—(a) know they are arranging or facilitating an offence under section (Offence of requiring or accepting sexual relations as a condition of accommodation),(b) reasonably should know their actions would enable the arrangement of or facilitate an offence under section (Offence of requiring or accepting sexual relations as a condition of accommodation), or(c) were informed that their actions had enabled the arrangement of or facilitated an offence under section (Offence of requiring or accepting sexual relations as a condition of accommodation) and failed to take remedial action within a reasonable time.(4) A person found guilty of an offence under this section is liable on conviction on indictment to a fine of £50,000.”

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[Baroness Kennedy of Cradley (Non-Afl)]

My Lords, men who seduced girls between the ages of 13 and 16 before 1 May 2004 are effectively immune from prosecution because of a procedural time limit. The law therefore stops historic child abusers from being held accountable for their actions; the law denies justice to women in England and Wales who were groomed for sex as teenage girls before 1 May 2004 as they cannot bring charges against the people who took advantage of them. Let me take a minute to explain why.

Abusers are immune from prosecution because sexual offences committed before 1 May 2004 must be prosecuted under the Sexual Offences Act 1956. Under that Act, the applicable offence is unlawful sexual intercourse, as outlined in Section 6. In the 1956 Act, and there is a time limit of one year from the alleged commission of the offence under Section 6. Proceedings must therefore be instituted within a year from then. This time limit is clear and unambiguous and can be found in paragraph 10 of Schedule 2 to the Act.

Amendment 104FC would remove the time limit and therefore remove the legal barrier which protects abusers of underage girls from prosecution. Some may read this speech and question why I am using the phraseology “girl” and not “child”. This is because, remarkably, the time limit applies only to girls; if the victim were a boy, it would be different, as historical cases of sexual intercourse between men and boys under 16 can still be prosecuted. How can the law deny justice and discriminate in this way, and this House not seek to put it right?

The time limit has to be removed, especially as no such time limit applies to offences of this nature committed after 1 May 2004. If a man had sexual intercourse with a girl aged between 13 and 16 after 1 May 2004, he can be prosecuted for the new offence of sexual activity with a child. That was created by the Sexual Offences Act 2003, where no equivalent time limit is applied. This time limit is therefore a procedural anomaly that clearly stands in the way of justice.

This problem had been going on for some time, since before May 2004, but prosecutors were for a long time able to evade the time limit. Instead of charging for underage sexual intercourse, which could not be done if the offence was discovered or prosecuted too late, they would charge for indecent assault in relation to the same underage sexual intercourse. But in 2004, when this House also acted in its judicial capacity, it considered an appeal by a Mr J, who argued that his charge of indecent assault was a device to circumvent the time limit and was an abuse of the court—and the House accepted his argument. Since that time, therefore, men who procured sexual intercourse from vulnerable and impressionable girls before 1 May 2004 have been immune from prosecution.

Some may say that this may be an unnecessary change and ask how many people it would actually affect—but, as the CPS does not keep a record of how many cases are discounted at an early stage because of issues like time limits, there is no data for us to know whether this is affecting one woman, 1,000 women or more. What we do know is that, sadly, historic sexual abuse comes to light all too frequently. We know that girls can be threatened into silence for long periods of time. It is well known that very many girls, victimised in these ways, only recognise themselves as victims, or only have the confidence to go to the police much later than one year afterwards, or something else comes to light that encourages them to bravely break their silence. There must be hundreds of thousands of cases where men seduced a girl aged between 13 and 16 before 1 May 2004, but those victims for various reasons never told the police during the year.

I do not believe that we should need much evidence of the extent of the problem to justify the removal of this arbitrary time limit and allow justice to be done. Some may argue that you cannot retrospectively make law in this way, but applying that argument to this amendment I believe is incorrect. It is true that you cannot retrospectively create new offences and punish people for them—but here, the relevant offence always existed. This amendment would just change the rules relating to trial for those offences. It has always been understood that rules of evidence and procedure can be amended and have immediate effect in subsequent trials, regardless of when the acts complained of actually happened. Article 7 of the European Convention on Human Rights, as I understand it, applies to the definition of offences and defences; it does not apply to matters of procedure, including time limits.

Finally, some may argue that this amendment risks exposing those who were prosecuted and successfully used the time limit to avoid prosecution to further conviction. That is not my intention with this amendment, which is why subsection (2) of my proposed new clause states:

“Nothing in this section permits the trial of a person who has already been convicted of an offence relating to the sexual intercourse in question.”


I am aware that that this is a complex matter, and I thank Dr Jonathan Rogers, assistant professor in criminal justice at Cambridge University, who has been arguing for a change in the law to address this issue for many years. I thank him for all his advice and support on this issue. I also thank the noble Lord, Lord Wolfson of Tredegar, for meeting Dr Rogers and me last week to discuss this matter. We are conscious that our meeting lasted twice as long as expected, so I thank him for the time that he gave and for the further discussions that were facilitated between Dr Rogers and the Civil Service team. However, my view remains that this issue needs resolving; there are still women who are denied justice for what happened to them in their early teenage years and men who can be fairly tried. This time limit is wrong —the amendment would remove it and, in doing so, close a loophole which protects sex offenders. I beg to move.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I support my noble friend, who is quite right in everything she has said. Sexual abuse and rape can quite often take decades to come to light. The anomaly, which she has outlined very clearly, is within the power of the Government to put right, and I urge the Minister to do so.

[Lord Wolfson of Tredegar (Con)]

My Lords, before I turn to this amendment, I begin with an apology. I made an incorrect statement in an earlier group. On Amendment 104B, I said that in September 2019, we rolled Section 28 out to a further four courts” and then I identified them. I should have said “September 2021”, not “September 2019”. I have already sent a written note to the noble Lord, Lord Ponsonby of Shulbrede, correcting the point, but I take this opportunity to correct the record and apologise to the House for that error.

I thank the noble Baroness, Lady Kennedy of Cradley, for tabling the amendment, which is aimed at a narrow but important category of cases that remain subject to a highly unusual time limit—we do not usually have time limits in our criminal law—and I thank her for the very useful discussions that we have been able to have on this topic. The amendment affects offences under Section 6 of the Sexual Offences Act 1956 of unlawful but consensual sexual intercourse with a girl aged 13 to 15 that were committed before 1 May 2004, when the Sexual Offences Act 2003 came into force and replaced the 1956 Act. It was a requirement under the earlier statute that a prosecution for this under Section 6 had to be commenced within 12 months of the offence. There is no time limit for the offences under the 2003 Act that have been chargeable since 1 May 2004, but when the offence was committed before that date, the 12-month limit for commencing a prosecution continued to apply. That, of course, has long since expired.

As my noble and learned friend Lord Stewart of Dirleton explained in Committee, Parliament usually acts on the principle of non-retroactivity. Although removing the time limit in circumstances where a prosecution was already time-barred would not have amounted to substantive retroactivity in the sense of criminalising conduct that was not previously unlawful, it still would have exposed a person to criminal liability where there had not been any before.

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[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.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am very grateful to the noble Lord, Lord Beith, for again raising this matter for debate. I am also grateful to the noble Baroness, Lady Jones of Moulsecoomb, who is not in her place but who gave up a lot of time last week to discuss this with me and the noble Lord.

I start by clarifying what we mean by a “position of trust” in this context—there may have been some confusion in Committee. The position of trust offences that we are discussing are set out in Sections 16 to 19 of the Sexual Offences Act 2003. They are necessarily narrow in scope and were never intended to apply in all scenarios in which a person might have contact with, authority over or a supervisory role over another person, even those aged under 18. Rather, these offences were created to tackle potentially abusive relationships between those under 18 and adults who were in specific positions of trust.

The existing positions of trust, as set out in Section 21 of the 2003 Act, were so drafted in an attempt to capture situations where the young person had a high level of dependency on the adult involved, often combined with some vulnerability. These included those caring for a young person in a residential care home, hospital, school or educational institution. In these contexts, the power dynamic is such that Parliament considered that any sexual activity should be criminalised.

The law was created, therefore, in recognition of the risk inherent in these types of position and the power the individual could have over the young person, which could impact on and affect the young person’s ability to consent. As such, the offences are committed as soon as the adult in one of these specified positions engages in sexual activity with the young person they are caring for; there is no need to prove any abuse or actual manipulation.

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

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

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

[Lord Ponsonby of Shulbrede (Lab)]

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

[Lord Wolfson of Tredegar (Con)]

My Lords, I am very grateful for the support that the amendment has received across the House. This ought to be a cross-party issue and I am very pleased that it has been. I repeat my thanks to all those who worked with me and my ministerial colleagues to get this amendment before the House this evening. As it is a cross-party matter, it is quite right for me also to thank Yvette Cooper in the other place, who did a lot of work on this issue. Sometimes parties do not matter; it is about the work that we do. I thank her for getting the ball rolling on this very important issue.

We will keep the matter under review, as we do with all legislation, and certainly for something such as this. Again, I do not want to take the House’s time, although this is an important topic. I instead invite the House to join me in supporting the amendment.

Police, Crime, Sentencing and Courts Bill

Lord Ponsonby of Shulbrede Excerpts

Report stage
Monday 17th January 2022 Lords Chamber

[Lord Sandhurst (Con)]

My Lords, I begin by saying how grateful I am to my noble friend Lady Williams of Trafford for the time that she has given me, and others, since the debate in Committee on 1 November and for bringing forward these amendments. Having said that, I have some observations to make, in particular about freedom of expression.

Events since the debate in November have made the need for proper regulation even more pressing. Since that debate, as we have heard, the Court of Appeal in Miller has stressed the danger of the chilling effect of police intervention on individuals minded to speak on controversial public topics. The president of the Queen’s Bench Division, in her very powerful judgment, said that the revised guidance published by the College of Policing, which was then before the court, did not

“go very far, or not nearly far enough to address the chilling effect of perception-based recording more generally.”

She emphasised that

“additional safeguards should be put in place so that the incursion into freedom of expression is no more than strictly necessary.”

Finally, she said:

“Guidance should truly reflect what the police are expected to do and should not mislead by omission either the police who have to use it or the public.”


At much the same time as that judgment was being written, a similar matter came before the court in Strasbourg—the case of Dr Pal. It was decided against the United Kingdom on 30 November 2021—just two months ago. Dr Pal, a journalist, was arrested, detained and charged with hate speech in respect of a person called AB. Only when it came to the magistrates’ court did the CPS abandon the prosecution. Dr Pal then brought proceedings for wrongful arrest, or false imprisonment. The Strasbourg court observed that the arresting officer’s decision to arrest

“appears to have been based on the subjective viewpoint of AB”—

that is, the complainant himself —

“without any acknowledgement of the fact that the right to freedom of expression extends to information or ideas that defend, shock or disturb.”

The court said that

“there is no evidence that the criteria … relevant to the balancing of the rights to freedom of expression and the right to respect for private life … were taken into account prior to the applicant’s arrest. In particular, no consideration appears to have been given to the subject matter … and whether they could be said to have contributed to a debate of general interest.”

In short, there have been two important decisions from very senior courts which have stressed the vital importance of paying proper regard to freedom expression and to the need for those in authority to understand and reflect that the right to freedom of expression extends to ideas that may shock or disturb others. There must be fresh guidance, it must reflect those observations, it must be clear and decisive—and it must be soon.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank the Minister for introducing her two amendments, which we welcome. It was fair of her to point out the legacy of the recording of non-crime hate incidents and the legacy of the Macpherson report on Stephen Lawrence’s murder. We welcome that the existing guidance will be turned into statutory guidance. I have one question for the Minister: what is the likely timetable for that statutory guidance to be available to be reviewed by Parliament?

On Amendment 114E in the name of the noble Lord, Lord Moylan, I have a genuine question, and this is not a party-political point: how would his amendment have an impact on domestic abuse cases? As I have said before to the House, I sit as a magistrate in both family court and the criminal court, and I deal with a lot of cases related to domestic abuse. While non-hate crime incidents are not recorded on the police national computer, we see information on call-outs and it is common to see information on text records between the parties, usually a man and a woman. Sometimes those text records go on for pages and are relentlessly abusive. How would that information be affected by his amendment?

[Lord Moylan (Con)]

Without having myself looked at the wording of the amendment, the original wording, which I think is preserved in the current amendment, would have excluded disclosure in relation to individuals but not in relation to groups. In the context of the original amendment, therefore, I think that point would have been covered. The noble Lord makes a very good point, and if I were pressing the amendment or the Government were intending to take it forward in any way, of course it would need to be reviewed to ensure that his point was properly addressed.

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Moved by

[Lord Ponsonby of Shulbrede]

114A: After Clause 55, insert the following new Clause—
“Urgent review of offences under section 61 of the Sexual Offences Act 2003
(1) The Secretary of State must establish a review into the prevalence of, and the response of the criminal justice system to, the offence of administering a substance with intent under section 61 of the Sexual Offences Act 2003, within one month of the day on which this Act is passed.(2) A review under this section must consider—(a) incidence rates and rates of reporting by victims;(b) charging and prosecution rates for the offence;(c) the adequacy of sentencing guidelines for the offence;(d) the adequacy of police investigations into reports of the offence;(e) reoffending rates, and rates of offenders who commit one or more other sexual offences following a charge or sentence for administering a substance with intent;(f) the impact of the offence on victims.(3) A report on the findings of the review under this section, and any associated recommendations, must be published within six months of the day on which this Act is passed.(4) Where a report is published under subsection (3) a Minister of the Crown must make a statement to each House of Parliament on the contents of the report and associated recommendations.(5) Within three months of a report being published under subsection (3) a Minister of the Crown must make a statement to each House of Parliament on action that has been taken in response to recommendations made.”

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, this amendment was debated on Wednesday, so I intend to speak very briefly to it. The purpose of the amendment is to ask the Government to set up a review of drinks spiking and needle spiking in pubs and clubs. In her response, the Minister said that the Home Secretary has asked the National Police Chiefs’ Council to review the scale of needle spiking. My amendment is very modest; all it does is require the Government to go one step further and set up a review of this practice, about which there is much public concern. I wish to test the opinion of the House.

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[Baroness Chakrabarti (Lab)]

My Lords, your Lordships’ House can be proud tonight for seeking to prevent injustices well into the future, but in seeking to support the noble Lord, Lord Best, we can try to act on injustices that are nearly 200 years old.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we will be supporting the noble Lord, Lord Best, if he chooses to press his amendment to a vote. If I may refer briefly to my experiences as a magistrate, it is indeed true that we do not actually see this charge brought very often—of course, we do see beggars, but it really is not that often. It seems to me that there is widespread cross-party support for repealing the Act. A compromise has been put forward by the noble Lord, Lord Best, and I will be interested in hearing the Minister’s response. If the noble Lord does choose to press his amendment, we will support him.

[Baroness Williams of Trafford (Con)]

My Lords, I will join other noble Lords in trying to be brief, given the lateness of the hour. I thank the noble Lord, Lord Best, my noble friend Lord Young of Cookham, and the noble Baroness, Lady Thornhill, for their commitment on this issue. I can only apologise that the letter was so late in returning to them.

I assured noble Lords in Committee, and I do so again now, that the Government firmly agree that no one should be criminalised simply for having nowhere to live or for sleeping rough. The Government’s dedication to supporting this group has been at the centre of our response to the pandemic, as the noble Lord, Lord Best, has said. We have also recently provided £28 million to local authorities to support them to promote vaccination among people sleeping rough and to provide emergency accommodation to get people off the streets. That builds on the success of the Everyone In programme.

The Government are fully committed to reviewing the Vagrancy Act, but the review has been delayed by the pandemic and by our resulting endeavours to protect vulnerable individuals. In Committee, I explained that rough sleeping and begging were complex issues, and that we therefore must give due consideration to how and why the Vagrancy Act was still used to tackle begging and what impact any changes to the Act will have. This includes consideration of any legislative gap left by repeal that may impact the police’s moves to deal with begging.

The noble Lord spoke about the way the Anti-social Behaviour, Crime and Policing Act 2014 can be used to deal with certain types of begging, but that Act is not always a suitable alternative. Begging is complex and does not always meet the legal tests in the 2014 legislation to allow the police or local authorities to tackle specific forms of begging where intervention may still be useful, specifically passive begging, where there is no associated anti-social behaviour but where, none the less, there might be an impact on communities as well as the individual. For example, someone who is sleeping rough might engage in passive begging and might use that money to survive on the street. They might be resistant to taking up offers of support, and this might have an indirect impact on communities or businesses. In such circumstances, there would be nothing the police could do to help compel the individual to take up support.

There are also international examples of different approaches taken to tackle begging, including passive begging, that we should consider. For example, should the police be able to intervene if begging affects businesses or, as in some countries, if begging is opportunistic, for example near an ATM, or fraudulent, such as feigning injury or illness?

The Government think that enforcement, when coupled with meaningful offers of support and close work with other agencies, can form an important part of moving people away from the streets. It is vital that the police can play their part here and that they have effective legislation at their fingertips, but this position does not negate the Government’s firm view that rough sleeping should not be criminalised and, where an individual is truly destitute, it is paramount that a multiagency approach is taken to provide that necessary support. To ensure that the response is effective, we need legislation that complements the delivery of services and allows for constructive engagement with vulnerable individuals. I recently wrote to the noble Lord with more information on the detail of our position.

As it stands, an outright repeal of the Vagrancy Act might leave a gap. That is why, as I explained when I met with the noble Lord, once the necessary work has been concluded, the Government are committed to repealing the outdated Act and replacing it with much more modern, fit-for-purpose legislation when parliamentary time allows. Until we have completed this work, it would be a bit premature to repeal the Act. In the light of the commitment that I have outlined, confirming that the Government will consult on what the appropriate legislation should look like, I ask the noble Lord to withdraw his amendment.

Police, Crime, Sentencing and Courts Bill

Lord Ponsonby of Shulbrede Excerpts

3rd reading
Tuesday 25th January 2022 Lords Chamber

[Lord Clarke of Nottingham (Con)]

My Lords, I feel very guilty that I was unable to arrange my diary to take any part in the Bill as it went through because this is the part of the Bill in which I would otherwise have taken an active part. I have already apologised to the noble Lord, Lord Blunkett, outside this House for the fact that in the end I was not able to offer him any assistance.

I add only, as my noble and learned friend just has, my support and simply record that I was the Lord Chancellor who abolished indeterminate sentences in 2011 with the wholehearted support of the noble Lord, Lord Blunkett, who was then in the House of Commons with me and defused any attempts to preserve this stain on the statute book, which he had accidentally introduced without any expectation that it would be used as it was and resolve into a problem.

If you had told me when we abolished this sentence that there would be thousands of people in the position that they are now, 11 years after abolition, because they were left over to be dealt with, I would not have believed it. What I proposed was simply a change to the burden of proof that the Parole Board had to apply when deciding whether it was safe to release somebody, but that was never implemented. The fact that all these years later we face these problems is something of a disgrace. I thank the Minister for making this modest move, but I certainly agree with what everybody has said about the modesty of it. It needs urgently to be addressed by the Select Committee in the other place.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I too would like to echo the thanks for the Minister. He has, in a sense, been a lobbyist within the Ministry of Justice to get this modest amendment over the line. The noble Lord, Lord Moylan, summed up the position very well when he described it as the first crack in the wall. I was alarmed by the figures he quoted from his Written Question, where he seemed to indicate that there would be more prisoners in jail because of recalls, so the problem is likely to get worse and not better.

The noble Baroness, Lady Burt, referred to the Minister’s reference to Newton’s second law—that it is easier to move an object that is already in motion. My first degree was in physics, and I would phrase that slightly differently, in a way that is relevant to the politics: the rate of change of movement is proportional to the impressed force. We on this side are certainly interested in increasing the impressed force on this object which is currently under way.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful for the kind words a number of noble Lords have said. This may be a modest start, but it is a start, and I am sure that the conversation will continue. In particular, as I said when we discussed this matter substantively, I am well aware that the Justice Select Committee is looking at this matter. It will be reporting soon and, while I cannot go quite as far as my noble friend Lord Moylan would want me to by saying that, if the committee recommends, for example, changing the qualifying period from 10 years to five years, the Government will adopt it, I can say—which I hope would be obvious anyway—that we will take anything that comes out of the Justice Select Committee extremely seriously and look at it with very great care.

The action plan has been provided to the Justice Select Committee. We will review it again following the publication of its report to take account of our consideration following its recommendations. I hope the House will forgive me if I do not respond to everybody who contributed. I am conscious that we are at Third Reading and there is other business before the House. But I thank everybody who has contributed to this short debate. In particular, I respectfully thank the noble Baroness, Lady Burt of Solihull, for our conversations and the correspondence we have had, which she knows I have been dealing with.

I am conscious that Newton has now been invoked on a number of occasions. I am not altogether sure whether Newtonian physics applies to government action, but I will proceed on the basis that it does. I will try to push things as far as I can, but for present purposes, the only things I will immediately seek to move are these amendments.

Police, Crime, Sentencing and Courts Bill

Lord Ponsonby of Shulbrede Excerpts

Consideration of Commons amendments & Lords Hansard - Part 1
Tuesday 22nd March 2022 Lords Chamber

[Baroness Kennedy of Cradley (Non-Afl)]

My Lords, I declare my interest as director of Generation Rent. I will speak briefly to Motion M. Campaigners have argued consistently for a specific offence to more easily prosecute predators who seek to exploit women and men, including renters, by asking for sexual favours in return for a roof over their heads. It is disappointing that the Government did not accept the Lords amendment. It is not right that a victim has to be defined as a prostitute for justice to be served. The fact that there has only ever been one prosecution is proof that the current law is woefully inadequate.

However, movement has been made on this issue: there is recognition that it needs addressing and, of course, we welcome the public consultation as a step forward. In welcoming that, I ask the Minister—I am sure that other noble Lords will want to know the answer too—when the timetable and the terms of reference for the consultation will be published.

Regarding action against online platforms and hosts, for too long the tech firms have not been held accountable for hosting harmful and abusive content. Instead, they have been able to facilitate the exploitation of renters through sex-for-rent ads, completely without consequence. The Minister confirmed that this will be dealt with in the online safety Bill. Can she confirm that paragraphs 16(a) and 16(b) of Schedule 7 will mean that sex-for-rent ads will be classed as priority illegal content and will therefore be dealt with under the schedule? Can she confirm the sanctions that will be used to deter tech platforms from hosting sex-for-rent ads and the consequences if they continue to do so?

I appreciate that, as a Minister in a different department, the noble Baroness may not know the full detail of the DCMS Bill to answer my specific questions about sex for rent and Schedule 7, but if she could commit that she or someone else will write to me to explain exactly how the online safety Bill will deal with online sex-for-rent ads under the “Priority offences” schedule on illegal content, I would be very grateful. Will these online safety provisions be part of the public consultation or will the consultation deal solely with the criminal justice aspects of sex for rent?

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I open by thanking the noble Baroness, Lady Williams, for the way in which she introduced the two government Motions.

First, on Lords Amendment 70 in my name and the Government’s Amendment 70A, it is fair to say that the Government’s response goes wider than my original amendment. That is a good thing. It is indeed true that the Government are considering the issue in the round. Sexual motivation is not the only reason why people are spiked through their drinks or through needles; there may be any number of motivations for people doing it, so it is reasonable to look at this matter in the round and that is what the Government are proposing to do through their amendment. I thank the noble Lord, Lord Paddick, for his support on this matter.

Moving on to sex for rent, I pay tribute to my noble friend Lady Kennedy, who has played a leading role in this House in promoting Amendments 141 and 142. She showed her knowledge in this area in the questions that she put to the Minister about how this matter will be taken forward regarding the online safety Bill. She put some pertinent questions and I hope that I can be copied in on the answers regarding the timetable and whether particular aspects of the DCMS Bill will address the sex-for-rent issue.

The further concession, if I can use that word, which the Minister has made is that there will be a public consultation, which will launch by the Summer Recess. Of course that is welcome but, as she fairly pointed out, there are a number of elements to this. It is not an issue for one department or one that is easy to solve. Indeed, it is not easy to quantify, although there is no shortage of horrific examples that one can see online on any number of websites where people seek sex-for-rent arrangements.

I thank the Minister for the way she introduced the Government’s Motions. We will support them if they are put to a vote.

[Baroness Williams of Trafford (Con)]

I thank the noble Lords, Lord Ponsonby and Lord Paddick, for their very constructive comments, and the noble Baroness, Lady Kennedy of Cradley, for her always very constructive approach in bringing these matters forward.

The point about someone having to identify as a prostitute is a really serious matter. I say again that anyone who makes a report to the police would benefit from the anonymity provisions in the Sexual Offences (Amendment) Act 1992. The Section 52 offence applies when an identified victim has been caused to engage in prostitution or incited to do so, whether the prostitution takes place or not. The Section 53 offence applies where a victim has on one or more occasions provide sexual services to another person in return for financial gain.

The consultation on this will be before the Summer Recess. We will write about the terms of reference once they are settled. The consultation will be confined to the case for a bespoke new offence.

On the online safety Bill and where it meets what we have been talking about, the legislation will define the harmful content and the activity covered by the duty of care. This includes illegal content and activity, harms for children and legal but harmful content, and activity for adults. The relevant offences, which are Sections 52 and 53 of the Sexual Offences Act 2003, have been included in that list of priority illegal harms in the Bill, demonstrating the importance that the Government attach to the tackling of these harms.

I hope that answers the noble Lords’ questions. Again, I thank them for their constructive work on this.

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[Lord Paddick (LD)]

My Lords, I rise with some trepidation as the first man to speak in the debate—sorry, after the noble Lord, Lord Russell, of course, the proposer of the Motion. Something seriously needs to be done about misogyny in society, as the noble Baronesses said. I think it was the noble Baroness, Lady Kennedy of The Shaws, who said that misogyny is not hatred of women. My understanding is that it is hatred of women who are not subservient to men and who do not allow men to do what they want because they can, because they are stronger or because they think they can get away with it.

I have to say that I do not understand the Law Commission’s assessment that having misogyny as an aggravating factor would undermine the investigation and prosecution of things such as domestic abuse and sexual violence. Racism is treated as an aggravating factor by the courts, yet black victims of domestic abuse and sexual violence are not disadvantaged by having racism as an aggravating factor. So why should women be disadvantaged were misogyny to be an aggravating factor? Perhaps the Minister can answer that question.

I agree with the noble Baroness, Lady Kennedy of The Shaws, that we must deal with misogyny in terms of the actions that have a detrimental impact on women—not the thought but the deed, not the prejudice but the discrimination against women.

Amendment 72B in Motion D1 would create a new offence of harassment or intimidation aggravated by hostility towards sex or gender, where the maximum penalty for the new offence is the same as the offence, under Section 4 of the Public Order Act 1986, of intentional harassment, alarm or distress without any aggravating factor. So there is an issue there.

There is a crisis of misogyny in society in general and in the police service in particular. Urgent, decisive action needs to be taken, notwithstanding the Law Commission’s findings. Creating a new offence, as suggested by the noble Lord, Lord Russell of Liverpool, in the form and with the penalties suggested might not be the right answer, but it is a vehicle to allow the Government to come forward with a better alternative using the Bill. We do not know when the next legislative opportunity will arise and we need to force the Government to take action now.

This urgency is reinforced by the fact that, as the noble Lord, Lord Russell of Liverpool, said, the undertakings given by the Government when we last debated this issue during the passage of the Domestic Abuse Bill—now an Act—to ensure that all police forces flag offences aggravated by hostility towards sex or gender do not appear to be happening. Even if the Government are not convinced that legislative change is needed, surely they must deliver on their commitment to ensure that the nature and extent of the problem of misogyny in society is measured by the recording of such offences by the police. Surely the Government must understand why police forces might be reluctant to record misogyny as a hate crime when there is clear evidence of a culture of misogyny in police forces. That is why they should be compelled to do so by the Government.

I am concerned that the Government, encouraged by the Law Commission, are going into reverse on the issue of misogyny, betraying women who suffer every day from male violence. If for no other reason, we should support Motion D1 and Amendment 72B.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, this has been an extraordinary debate in many ways. It has really gone to the heart of the issue. I pay tribute to the noble Lord, Lord Russell, in the way he moved his amendment.

I will start by addressing a specific point that the noble Lord, Lord Paddick, made about the way sentencing is done in courts. I speak as a magistrate who sits in London. When I sentence on a matter where there is racism as part of the sentence, I explicitly have to say in court what the uplift is because of the racist element. However, when there are other aggravating factors, be they misogyny or any other factor, such as the fact that the victim works in a public-facing way, I am not required to do that, but I can if I wish to. That is a very specific example of the difference in the way sentences deal with particular different types of aggravating factors.