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.

--- Later in debate ---

[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.