Police, Crime, Sentencing and Courts Bill

Lord Thomas of Cwmgiedd Excerpts

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

[Lord Thomas of Cwmgiedd (CB)]

It was a privilege to add my name to this amendment, which has been so ably moved by the right reverend Prelate the Bishop of Durham, speaking the words of the right reverend Prelate the Bishop of Gloucester. I associate myself with everything that has been said and particularly with the work being done by Revolving Doors and the Centre for Justice Innovation.

This particular amendment raises a problem with this part of the Bill. One can understand why putting in a condition or requirement in relation to the victims might appeal to a certain type of politician, but they forget that, if you are legislating, you need balance. Why put something in about victims without putting something in about the whole point of this, which is to try to deal with offending?

The reason that I put my name to this amendment goes to the way that the Bill has been structured. I apologise again for not being in my place last Wednesday. I am extremely grateful to the noble Lord, Lord Paddick, for moving the amendment that I put in. This point raises exactly the same problem: we have a framework Bill. We do not have the draft regulations or, more importantly, the draft code of practice.

I entirely support this reform, but I do not think that many people realise what a critical role cautions play in the operation of the criminal justice system and, as the noble Lord, Lord Paddick, has said in relation to an earlier amendment—I did not rise then because I thought that I could make the point now—the incredibly important constitutional and rule-of-law issues, which I underline. These relate to the relationship between the legislature, and how much detail it should go into on this, and the Executive—because the police are part of the Executive branch of government—and to what extent they should be allowed to punish, which has generally been the province of the courts.

I welcome these reforms because this is an important part of the sentencing regime—and it is part of it, whatever epithet one wishes to apply. But it seems to me that a much better approach to the Bill would be if this was brought together as a whole, so that we could say, “This bit ought to go into the Bill. That is dealt with in regulations. This should be dealt with in the code of practice”. We should have it all before us, so that we can make a sensible decision. I do not understand why this has not been done, but I hope that, before the Bill comes back on Report, we see draft regulations and a draft code of practice. Otherwise, we will all be plagued on Report with this type of really serious concern.

There are many more issues—the noble Lord, Lord Paddick, has raised some of them this morning—such as the point that the Minister made very eloquently this morning about being able to alter levels of fines. Of course, in an age where we are perhaps going to see a lot of inflation, that is important, but why alter the number of hours? The gravity of the sentence with which a particular person should deal ought to be fixed.

Therefore, I hope that the Minister will look at, first, putting this amendment into the Bill and, much more seriously and importantly, at bringing the draft code of practice and the draft regulations, so that we could review the whole thing and do a proper job, as Parliament, consistent with the rule of law.

[Lord Beith (LD)]

My Lords, I am very glad to support the right reverend Prelate and the noble and learned Lord who has just spoken. The right reverend Prelate gave us a very careful analysis of the reasons that such an amendment would improve Clause 88 of the Bill, and the noble and learned Lord, the former Lord Chief Justice, reminded us of the constitutional context and the fact that the way that the Bill is structured, and the sheer complexity of it, are not really very satisfactory, especially when so much related material is not available to us at this stage. I hope that note will be taken of what he said on that latter point.

My feeling was that, as drafted, Clause 88 does not cover the ground properly, and that the inclusion of the requirement in this amendment—that consideration should be given to what provisions can be made for the “offender to desist” from crime in the future—would give the clause a necessary balance; a phrase that the noble and learned Lord used. The clause’s emphasis is very much on finding the victim’s views, which is entirely appropriate but limited in scope.

It is of course relevant to remember that, very often, one of the strongest views that victims have is that no one else should have to suffer what they have and that something should be done to make sure that the person who has done it does not do anything like that again and cause that sort of harm in the future. So these two things are not in opposition to each other: it is a complementary requirement for the clause to include a direct reference to measures to try to make it possible for the individual to desist from crime. There is a wide range of measures, but, in the context of this clause, the right reverend Prelate mentioned drugs and drug treatment. Of course, alcohol is also a very significant factor in many of the sorts of crimes that we are talking about.

This brings back memories of an incident that occurred during my time in the House of Commons, when some teenagers pulled down and stole the union flag from outside my office. They then made the mistake of exhibiting it around the pubs of the town, which led to the police catching them pretty quickly. The sergeant rang me up and said, “I do not really want to issue a formal caution because one of them wants to go into the Army, and that may prevent him doing so. I suggest that they club together, pay for its replacement and all write to you to apologise”. That was the kind of practical policing that, nowadays, is so surrounded by rules and requirements that it is often more difficult to do. But it was the right solution. I had some delightful letters, most of them insisting that their families had always voted for me. But it made a sufficient impact on the individuals—it was just a minor thing—making them less likely to commit crimes in the future. That is the emphasis that we need to add into this clause—an emphasis on trying to ensure that that individual commits no further crimes in the future.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

Well, we did have that exchange. I went through the way that it has been piloted in various police forces, and we had an interesting exchange. I am happy to look again at the record and see whether there is anything else that I can add, but I am not sure that will necessarily persuade the noble Lord in any event. Again, I am not sure it is helpful to go through those fundamental points each and every time we come to one of these amendments.

I hope I have responded substantively—and, I hope, substantially—to the amendments tabled by the right reverend Prelate. For the reasons that I have set out, I ask him to withdraw them.

[Lord Thomas of Cwmgiedd (CB)]

Before the noble Lord sits down, and to go back to the fundamental point about the code of practice and the regulations, is there not even a framework or some outline that we can look at so we could work out what is necessary in primary legislation and what is necessary in a code of practice? I must say that it is wholly contrary to the rule of law for a democratically elected body—I include the whole of Parliament in that—to pass legislation that has not been properly gone into.

Here we are dealing with the liberty of the subject. I think that most people do not appreciate the seriousness of a caution. When I was Lord Chief Justice, we had a number of cases where people found out years later the problem with having accepted a caution. In one case, for example, a person who was young and had no convictions of any kind could not go to America. There are other cases where a caution for a minor offence makes you into a “person of bad character”. These are matters that go to the liberty of the subject and they are of fundamental importance.

It is quite contrary to the rule of law to ask us to pass legislation for which there is no urgency. As the noble Lord, Lord Ponsonby said, this is a long-standing problem. Could the Minister not reconsider? I entirely sympathise with the civil servants at the MoJ because they are hard-working. Of course, they have to work hard because of all the Government’s cuts to the Ministry of Justice; they are not responsible for that and nor is the Minister, who I am sure would like as much money as possible. Could we not, in this vital area of the liberty of the subject, do some proper work on it rather than wasting a lot of time debating principles? It would be so much more efficient, on an issue that is not urgent, if we could have a draft, a framework or something to look at.

[Lord Wolfson of Tredegar (Con)]

My Lords, of course I understand the point made by the noble and learned Lord. We could have an interesting debate about whether that is properly encompassed in the phrase “rule of law”, but I take the underlying point that he makes. I have sought to set out where the code of practice would be relevant, where the Act ends and the code of practice begins. I am happy to have a further discussion with him on that point.

I agree that cautions are an important part of the criminal justice system. They can have consequences, as the noble and learned Lord set out, and not being able to go to America is just one of them. That is why in a later part of the Bill, which we will come to, the question of when a caution is spent is so important. We have sought to build that into the Bill, which I hope meets, at least in part, the point that he makes. I am happy to discuss this point with him further.