Policing and Crime Bill

Lord Rosser Excerpts

Committee: 5th sitting (Hansard): House of Lords
Wednesday 16th November 2016 Lords Chamber

[Lord Faulks (Con)]

My Lords, I am most grateful to the noble Baroness, Lady Grender, for mentioning my small part in the acceptance of revenge porn as part of the list of criminal offences that the Government accepted ought to enter the calendar of criminal offences. The Government looked carefully at this and, in many ways, some of the conduct that was embraced within so-called revenge porn was probably covered by existing criminal offences. However, it was accepted that such was the need to identify specifically this sort of behaviour that it was appropriate to include it as part of the Criminal Justice and Courts Act 2015.

While I entirely accept what lies behind these amendments and the evil that they are directed against, I think that one has to bear in mind that we have had only a very short time for this legislation to bed down. I am glad that there have been prosecutions; it appears that there was a need and the prosecuting authorities have acted accordingly. But I am not sure that I am, at the moment, satisfied that there is a need to go further in terms of definition. For example, Amendment 217 talks about threats to disclose. The Minister will no doubt correct me, but all these areas are probably covered by existing criminal law—for example, blackmail, threatening behaviour, theft or other offences. A threat may be something substantial but it may be something very trivial and we do not want to have relatively trivial matters embraced in what is often a very serious offence.

As to Amendment 218, of course, on the face of it, it seems attractive that there should be some compensation. I am a little concerned, however, about a judge in a criminal case having to assess anxiety and the degree of anxiety in terms of the appropriate quantum of damages. How is he or she going to do that? Will there be evidence from somebody expressing how affected they were, and the degree of the affection—whether, for example, it caused them to go to a doctor? There is a slight danger that we could lose sight of what is really important—a criminal offence, rather than whether there should be compensation.

Quite apart from the questions of appeal raised by my noble friend Lord Hailsham, there is some work to be done on this. On the question of appeal, surely there would be an appeal from the magistrates’ court to the Crown Court as of right, and to the court of criminal appeal in appropriate, and possibly restrictive, circumstances. It may be that in due course there would be some informal tariff, perhaps involving the Sentencing Council—but I would not like it to be thought that the criminal prosecution of matters should be used as some proxy for obtaining compensation.

[Lord Rosser (Lab)]

My Lords, I will be brief. These amendments cover a serious and disturbing issue that has received considerable publicity in recent months. The purpose of the amendments, as I understand it, is to tighten and extend the reach and scope of the law in respect of disclosure of private sexual photographs and films without consent and with malicious intent. They include new clauses on compensation and anonymity for victims. At this stage we will listen with interest to the Government’s response, including the extent to which they consider that the law as it stands is sufficient—or, alternatively, needed—to deal with any or all of the issues addressed in the amendments.

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

My Lords, as the noble Lord, Lord Marks, has explained, this group of amendments all relate to what is commonly referred to as revenge porn, as provided for in Section 33 of the Criminal Justice and Courts Act 2015. Amendments 216 and 217 seek to extend significantly the scope of the offence, but the Government consider that the offence is working well. I am pleased to see my noble friend Lord Faulks in his seat; as he said, there have been more than 60 convictions for the offence since it came into force in April last year.

The offence is deliberately tightly drafted to target those individuals who have disclosed private and sexual images without consent, and with the intention of causing distress to the individual depicted. We are not persuaded that a sufficiently strong case has been made for broadening the scope of the offence, as proposed by the two amendments.

The general effect of Amendment 216 would be to significantly extend the range of material that could be considered private and sexual for the purpose of the offence. Currently, the offence is drafted to capture material that is sufficiently sexually explicit that its dissemination would be likely to cause real distress to those depicted. The offence also provides that images that are photoshopped—for example, so that a non-sexual image of an individual becomes sexual—should not be covered by the offence. This is because the disclosure of such an image, though still distressing, does not have the potential to cause the same degree of harm as the disclosure of an undoctored photograph showing images of the kind referred to in Section 35(3) of the 2015 Act. The noble Lord, Lord Pannick, made some interesting observations to that end. To alter the definition of “sexual” as proposed in Amendment 216 would, in our view, unjustifiably extend the scope of the offence.

Regarding the extension of the offence proposed by Amendment 217, we see no need to capture those who threaten to post such images. The offence, rightly, deals only with the act of actually disclosing private and sexual images, as it is the disclosure of the images that causes the harm which criminalising this behaviour seeks to prevent. As my noble friend Lord Faulks says, threats to disclose could, depending on the circumstances, be captured by existing offences that tackle harassment, malicious communications or, of course, blackmail. It is also difficult to see what would be gained by including an intention to cause fear or alarm to the victim, as distress is sufficiently broad a term for these purposes. Amendment 217 also seeks to make it possible for the offence to be committed recklessly as well as intentionally. The offence is targeted at those who deliberately seek to cause distress to victims through the dissemination of private and sexual material. This malicious intent—the revenge element of revenge porn, so to speak—is a key feature of the offence and we believe it would be wrong to dilute this by applying the offence to conduct that is the result of recklessness rather than a deliberately malicious act. Similarly, the proposal to extend the offence to those who,

“knowingly promote, solicit or profit”,

in relation to revenge porn material would shift the emphasis from those who disclose the relevant images with malicious intent, the mischief which this offence is intended to address.

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[Lord Marks of Henley-on-Thames]

My Lords, I support the amendment, although there should of course be amendments to the drafting. I accept the point made by the noble Lord, Lord Pannick, about anonymity acting to the detriment of the accused without his consent. I suggest that consideration be given to redrafting the amendment to permit the accused to waive the right to anonymity. On reconsideration, I should add that I consider my earlier intervention on the noble Viscount, Lord Hailsham, to be ill advised: the amendment does not in fact cover communication privately by police officers and I accept that it should.

There has been widespread discussion in the press of the independent review by Sir Richard Henriques into the failure of Operation Midland, the reliance placed on accounts given by, in particular, one unreliable witness and baseless allegations that had been made. Those allegations were, as has been said, permitted to do untold harm to the reputations of a number of prominent men who had given their lives to public service.

The noble Lord, Lord Pannick, reminded us that Sir Richard makes the case for increased anonymity, but his recommendation is that there should be anonymity only pre-arrest. He draws back from recommending anonymity at all stages prior to charge. His reasoning, in paragraph 1.67 of his report, is as follows:

“I consider it most unlikely that a Government will protect the anonymity of suspects pre-charge. To do so would enrage the popular press whose circulation would suffer”.

If that is the reasoning behind his conclusion, I disagree. He goes on to say:

“Present arrangements, however, have caused the most dreadful unhappiness and distress to numerous suspects, their families, friends and supporters”.

In that, Sir Richard is plainly right.

The question of when anonymity should be lost is one of balance. For my part, I do not believe that protection ought to be lost at the date of arrest, when the arrest can be made—as the noble and learned Lord, Lord Judge, points out—on reasonable suspicion only. I accept that the consideration that comes into play is whether, as he suggests, anonymity should apply only to sexual offences, rather than more widely. In my view, the particular position relating to sexual offences justifies the difference when we weigh the balance. He is of course right to say that what needs to come into the balance is the risk of injustice flowing from anonymity, just as there may be—indeed, we know there is—a risk of injustice flowing from the exposure that comes from the lack of anonymity.

As we all know, suspicion—even reasonable suspicion sufficient to ground an arrest—can turn out to be entirely misplaced. There may be a reasonable and truthful explanation for the circumstances that give rise to the suspicion justifying an arrest. While those circumstances may demand that explanation, an arrest can legitimately take place before the suspect has had a chance to give the full explanation required. When a suspect is charged, however, it is on the basis of a different test and different circumstances. First, the police must have the evidence that they believe will sustain a prosecution and conviction, if not refuted. Secondly, the suspect will generally have had a full opportunity to give a considered explanation of the circumstances, if there is one. Public exposure damages a suspect’s family life, his privacy and his reputation—for we are talking about men predominantly. The damage is largely irreversible, even where allegations are later withdrawn or found to be baseless. Death has sometimes made the damage and injustice total.

When striking a balance between the right of a suspect to be protected from that damage and the right of the public to know, the balance tips, in my view, in favour of the public’s right to know at the point of charge, not at the point of arrest. I am not persuaded by the argument that pre-charge anonymity will prevent other victims coming forward altogether. It may be that there will be a delay in such victims coming forward and they will do so after charge, rather than after arrest. That gives some opportunity for witnesses to come forward—as in the case of the murder client of the noble and learned Lord, Lord Judge, which of course could happen in the case of a sexual offence client as well. There is delay to the stage at which anonymity is lost, but it is not lost for ever and there is no reason to suppose that others will not come forward at that stage. My noble friend Lady Brinton’s point, that there should be protection also for the victims from early disclosure until it is established by charge that there is going to be a case, is an important one. I agree with my noble friend Lord Beith that the point made by the noble Lord, Lord Pannick, on gossip and speculation, applies wherever there is going to be anonymity at any stage. The argument that we have to address is at what stage anonymity should be lost.

The only reasonable point that can be made against this amendment is that there may be cases where further witnesses might come forward with legitimate and admissible similar fact evidence which might justify the charge where otherwise no charge would be brought. However, for my part, I have concluded that such cases will be rare and that most can be met by the proviso included—though perhaps to be redrafted—in the amendment. It is a question of balance but, in my view, the possibility of similar fact evidence being lost and justice thereby being thwarted is of lesser weight than the inevitable damage caused by premature exposure of an innocent suspect’s identity.

[Lord Rosser]

My Lords, as we have seen from this debate, this issue raises strong feelings. I will say before I go any further that the overwhelming majority of those who have spoken so far will not be in agreement with what I have to say. It has not been our policy, as my noble friend Lord Campbell-Savours in effect said, to support anonymity for rape suspects before they are charged or indeed those suspected of other sexual offences. There are almost no cases, at least as I understand it, where suspects are specifically granted anonymity in this way in our legal system. I appreciate that the amendment enables a judge to remove the restriction on identifying the person concerned where they are satisfied that doing so would be in the public interest. But we have yet to be convinced that this test will not in reality lead to fewer prosecutions and fewer victims of sexual assault coming forward than is the case even now. Granting anonymity specifically for those suspected of sexual offences could imply that a person making a complaint in respect of such an offence was not to be believed in the same way as someone making a complaint involving another individual in relation to any other kind of offence, such as child cruelty.

During the passage of the Sexual Offences Act 2003, one reason we gave for not changing the law was precisely to avoid giving the impression that there is a presumption of doubt about the credibility of the complainant in sex offence cases, as well as the fact that naming a suspect in such cases can lead to other victims coming forward—as it did, for example, in the cases of Rolf Harris and Stuart Hall, and the case for a credible and successful prosecution was enhanced as a result. Many of Jimmy Savile’s victims said they thought they were the only ones, and doubted whether anyone would have believed them if they had come forward, bearing in mind the celebrity status of the offender. The position, and their approach, changed somewhat when they found out, through the absence of pre-charge anonymity, that they were not the only ones.

In the light of what has been said in the debate, perhaps it is worth stating that the victims of sexual offences have, of course, also had their lives darkened—not least when the sexual offences were committed by well- known public figures. Of course, the victims themselves rarely are well-known public figures.

I understand that the coalition floated plans to introduce anonymity for rape suspects in 2010, but after carrying out an assessment they concluded there was insufficient evidence to justify a change, and that a change would be likely to have a negative impact on justice for rape overall.

The argument is made that without anonymity, those suspected of sexual offences would suffer shame and harm to their reputation—usually as a result of how the media choose to report such cases even if the person has not been, and never is, charged with any offence. That may be quite true in some cases—more so if the police mishandle their investigation in the way highlighted in the report on the Metropolitan Police released a week or so ago. This argument would also apply, presumably, if someone were accused of murder, serious assault, child cruelty, major fraud or other forms of serious dishonesty and corruption—as we saw with the naming in the media of an alleged suspect, who had not committed the offence, in a particularly unpleasant murder case in Bristol a few years ago. The police have discretion over the naming of suspects, and should do so only when they have good reason to suspect that doing so might produce corroborating evidence that would increase the likelihood of a successful prosecution.

As for the concerns sometimes expressed about false allegations, I believe I am right in saying that the Crown Prosecution Service has found that the number of false allegations is no higher for sexual offences than for any other type of crime. Many would argue that the real problem is still the reluctance of victims to report rape and other sexual offences, and the reasons for that. It has been suggested—although I cannot vouch for this as the correct figure—that perhaps only 15% of rapes are ever reported to the police. Young people and children are targeted more than most by those who commit such offences, who are often repeat offenders. The report on child sexual abuse in Rotherham found that when offenders discovered, over time, that they could act with impunity and were unlikely to be challenged, they simply increased the scale and level of violence in their offending.

We understand why the approach called for in the amendment is being pursued. We do not argue that no case can be made for the amendment, but rather that the case that can and should be made against it is stronger and more powerful. Unless firm evidence can be produced that the terms of the amendment would not result in more perpetrators of sexual offences escaping prosecution because others who may have been the subject of similar assaults do not come forward—because they are unaware that the individual is being investigated, and instead feel that if they did come forward they would be on their own—the amendment cannot be supported.

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[Baroness Brinton]

My Lords, 11 years ago, my life, and the lives of a number of my colleagues, friends and supporters, was turned upside down when we became the target of somebody who began by politically harassing us and then moved into criminal damage and on to stalking. It took more than three years before the case came to a satisfactory conclusion, when he pleaded guilty to five offences and asked for 68 other crimes to be taken into consideration. Eight and a half years on from his court hearing, I still find it difficult to talk about it, not least because when I arrived in court I was placed, along with the only other victim who had decided to come, within an arm’s length of the dock. It was the first time that I had seen the man since the police had charged him, although I had believed for some time before that it was him, and clearly I was right.

That unfortunate experience in my life pales into insignificance compared with the experience of many victims of domestic violence, stalking and coercive control, but it was my experience of harassment and stalking that made me join the parliamentary inquiry into stalking in 2011 and led to the amendments to the Protection of Freedoms Bill in 2012. In the House of Lords, when we were considering the Commons amendments, I cited the then Home Secretary, who had said that the amendments put forward by the Government,

“will widen the … offence to incorporate behaviour that causes the victim serious alarm or distress that has a substantial effect on his or her day-to-day life”.

When she addressed the Commons, she said that the legislation would be kept,

“under review. The last thing we want to do is to find that the legislation is being misinterpreted”.

She set out examples which were,

“to send a message to people that that is all they are”.—[Official Report, Commons, 19/3/12; cols. 546-47.]

At the time of the debate in your Lordships’ House, I and other noble Lords asked for strong evidence that the Home Office and the Ministry of Justice would ensure that the softer elements that are essential to provide victim support were put in place, such as training throughout the criminal justice system to recognise the needs of victims, not just for the police but in court, where assistants might place people, as happened in my case, in some of the situations that cause extreme difficulties for victims. I know that noble Lords who are lawyers are not surprised by delays, but there are many things that happen day-to-day in the criminal justice system that cause victims real distress. There seems often not be very much joining up of agencies, let alone police forces. The requests for training that we made in 2012 seem not to have been applied across the board. There is some good but patchy training—and it is not consistent.

The result of that is that many victims of these serious and intrusive crimes feel that their victimisation continues as the case progresses through the criminal justice system. That is despite progress in the victim personal statements scheme that arrived in 2001, witness care units, the Code of Practice for Victims of Crime, the victims’ fund, Victim Support and the restorative justice service. A number of sources, including the organisation Victim’s Voice Survey, made it clear that all these were having little positive impact on victims, who seem to be routinely failed and face revictimisation by the whole of the criminal justice system.

The hour is late and I will not go into much evidence, but there is plenty of it from these surveys and the number of cases highlighted to show the gap between these policies and the day-to-day administration of practice. Currently, some victims’ rights, though not all, are covered by entitlements in the victims’ code, which was designed to make the system more responsive and easier to navigate. The problem is that this is not legally enforceable. It is a code, not statutory guidance. It places discretionary accountability on the agencies. Victim feedback strongly suggests that agencies often fail to apply the code. Agencies which should be guided by it are aware that a failure to provide the service does not make a service provider liable in any legal proceedings.

The complaints and right to appeal process within the code is lengthy and very difficult to navigate. There is clear evidence the victims are deterred from engaging in the complaints procedures because of their complexity. This misses any opportunity to identify ongoing issues that victims are facing and to improve services.

The original victims’ code was clearly a well-intentioned document, but there was widespread agreement, including from the current Government, that it was not delivering all that had been hoped. The new code is similar to the original but makes it all the more difficult to see where improvement to services for victims might come from. There seems to be widespread failure to adhere to the guidance that the code offers, with lack of information and support for victims continuing to be a critical concern.

I should like to give an illustration. During the passage of the Protection of Freedoms Bill I spoke about Claire Waxman, who had at that point been the victim of stalking for considerably more than one decade. She reported that when, after 18 months of harassment, she first went to her local police force, the officer she met laughed at her and told her that she was making a fuss and should be flattered by the attention. She described how, in incident after incident, paperwork was missing for court and the CPS was ill-equipped to cross-examine the stalker in court because it had no idea what the case was about, as the prosecutor had received the files only a few minutes prior to the trial.

On one occasion she received a knock on the door at 10 pm from a uniformed police officer. He informed her that she was due in court the next day as a witness in the ongoing case. The court date had been moved and they realised very late at night that she had not been notified of this change. She was so shocked to be told that she was due in court the following morning that she had no time to prepare herself, or even to inform her work. However, she said that it showed her how much of an afterthought victims really are in this process.

That is a brief illustration of the evidence provided to a group of Peers at a seminar we held in October. A victims’ rights Bill introduced in the House of Commons last October by Sir Keir Starmer has all-party support. Many of the amendments that we are laying before your Lordships now are incorporated into the Private Member’s Bill. These amendments would create a balanced and fair justice system for all who participate, and should restore public confidence in the criminal justice system.

There is one other key point that I want to make. Many of the problems that victims face are due to inefficiencies in the system. If these alone were remedied, there would be a considerable saving to the costs of running the court system. I speak today for victims, but there is a much more important element here that would save the public purse an enormous sum.

We outline a statutory framework for victims’ rights. In summary, we believe that the right to information at every stage of the justice process should be natural, as should the right not to be discriminated against or prejudiced from accessing justice. There should be the natural right not to be subjected to any unnecessary delay and to challenge decisions that impact directly on the victim’s personal safety. There should be a revision of offences that can be appealed on the grounds of leniency. There is a separate amendment later on the non-disclosure of victims’ names to perpetrators in cases of serious sexual offences, where the perpetrator has targeted a stranger. There should be the right to attend and make representations to any pre-court hearing to determine the nature of the court proceedings.

I end on two incidents that were addressed at the hearing, which also set the context of why this is not just about inefficiencies in court. Alleged suspects have many rights once they are brought into a police station. They are entitled to meals, blankets, breaks, tea, coffee, doctors and, where necessary, alcohol and drug workers. All the victims at the seminar that day, when asked whether they had even an offer of tea or coffee when making their formal statements, reported that they had not.

Another incident was more about the police force involved absolutely abrogating its responsibility. A woman who was initially slapped by her husband, who had a history of domestic violence, was thrown on to the bed. He then violently raped her. Their eight year-old son came to the door and he assaulted him to get him out of the way. When the local police came to investigate, they decided that it had to be referred to three different branches of the police: to the CID for the initial slap; to the Sapphire unit for the rape; and to safeguarding for the child’s issue. The victim in this case—the mother of the child—had to make three separate statements and be kept updated with three separate sets of proceedings, and each time relive the experience.

While the victims’ code as it stands has the best of intentions, it is not good enough and we need to strengthen it. I beg to move.

[Lord Rosser]

I will be very brief, not only because of the lateness of the hour but because the noble Baroness, Lady Brinton, has already been through the case for these amendments.

The noble Baroness said that a victims’ rights Bill was introduced in the House of Commons last year by the then shadow Home Office Minister, Sir Keir Starmer, and it had all-party support. Currently, as we know, victims’ rights are for the most part covered by entitlements in the victims’ code and affected by various other initiatives in recent years. But that code is not legally enforceable and feedback from victims suggests, as has already been said, that agencies often fail to apply the code, perhaps because they are aware that a failure to provide the service does not make a service provider liable to any legal proceedings. Lack of information and support to victims are major areas of concern, with victims prioritising the right to information, protection, treatment and support as the highest priorities.

The purpose of these amendments is to place victims’ rights in a statutory framework, and the noble Baroness, Lady Brinton, has already referred to a number of those rights that are covered. The amendments also place a duty on the Secretary of State to publish and implement a strategy to provide training for all relevant professionals and agencies on the impact of crime on victims.

In essence, these amendments lay down what support should be offered to victims, how that support is managed, what training is necessary to put this into place and how complaints can be pursued. I, too, hope that the Government will feel able to give a favourable response.

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[Earl Attlee]

My Lords, I have sympathy for the noble Baroness’s amendment regarding collection of ethnic minority data. I would like to pick up on the point about education. So long as we are not properly educating the Traveller community it will continue to be exceptionally difficult for it to engage exclusively in legitimate economic activity.

[Lord Rosser]

My Lords, I will add a few brief comments to what has been said, without seeking to repeat the arguments which have already been made. The noble Lord, Lord Alton, may have been quoting from a letter, dated 2 November, which the deputy chief constable of the Cheshire Constabulary, who is the NPCC lead for Gypsy, Roma and Traveller issues, wrote to Elizabeth Truss at the Ministry of Justice. In this, she drew attention to the amendments to the Bill which we are discussing tonight. I will give a further quotation from the letter. She says:

“It is my firm belief that the lack of robust and reliable data on the Gypsy and Traveller population is a major barrier to developing a coherent understanding of these communities and their social, economic, education and welfare needs. Updating the ethnicity monitoring systems in youth justice to include Gypsies and Irish Travellers would be an integral step in helping us to address the disproportionate number of Gypsy, Roma and Traveller children in both Secure Training Centres and Youth Offender Institutions”.

She concludes her letter to Elizabeth Truss by saying that:

“I hope you and your Department are able to support the amendments”.

I hope that when the Minister replies she may be able to tell us what Elizabeth Truss’s response is to that request from the NPCC lead for Gypsy, Roma and Traveller issues to support the amendments that we are discussing this evening.

I have also got a copy of a letter which the chairman of the Youth Justice Board for England and Wales sent very recently to Kate Green MP, in response to a letter that she had written to him about the collection of data on the number of Gypsy and Traveller young people in the justice system. He says in his reply that:

“The YJB currently records the ethnicity of young people in the youth justice system using the 2001 census categories, which does not include Gypsy, Traveller or Romany (GTR) as a category. Consideration has been given to changing information systems to capture the number of GTR young people but it is too costly at present to make the required changes to existing local and central case management systems to make this possible. This position will be reviewed as new IT systems are developed and implemented”.

I am not sure that that statement holds out a great deal of hope. Perhaps in her reply the Minister could say something about what the costs would be of making the required changes to the existing local and central case management systems to achieve the objective being sought, so that we can all form a view of whether that is too costly or not.

I also ask the Government to respond to one other thing. Since the position will, apparently, be reviewed as new IT systems are developed and implemented, are we talking about new systems that will be developed and implemented within the next six months, the next six years or the next 60 years? Once again, the letter does not make that clear. It is interesting that the letter from the chairman of the Youth Justice Board for England and Wales then goes on to assert that,

“it is not the case that no data exists in this area”.

He then refers to the fact that:

“The YJB and HM Inspectorate of Prisons publish an annual report, Children in Custody, based on surveys of children in Young Offender Institutions (YOIs) and Secure Training Centres (STCs)”.

That is an interesting observation since, as I understand it, certainly on at least one previous occasion the relevant Minister has expressed the view that, as not all young people return a completed survey, they cannot determine the actual number of GRT young people held in YOIs and STCs, or even know if the sample is representative. That would suggest that on previous occasions the Government have not regarded the data contained in Children in Custody—in those annual reports—as necessarily being particularly reliable or particularly helpful.

Like others, I very much hope that the Government will be able to give a helpful response to this amendment. If the argument is going to be all about the cost of doing it, we will really need to ask the Government for a full breakdown of those costs and when they expect to rectify the situation so that we can all form an assessment of the validity or otherwise of that particular argument.