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.

--- Later in debate ---

[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%.