Police, Crime, Sentencing and Courts Bill

Lord Wolfson of Tredegar Excerpts

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

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

My Lords, I begin by placing on the record my apologies for not being in my place at Second Reading for personal family reasons. I also place on record my thanks to many noble Lords for their kind and supportive words and messages; I am very grateful.

Turning to the substance of the matter before the Committee today, Clause 2 of the Bill proposes an increase in the maximum penalty for the offence of common assault and battery when that offence is committed against an emergency worker. The definition —this is important—of “emergency worker” is set out in Section 3 of the Assaults on Emergency Workers (Offences) Act 2018. The pandemic has reminded us, if we needed reminding, that the vital front-line role that our emergency workers play, and indeed always have played, is of immense importance to our society. But we have recently seen an increasing number of assaults being committed against emergency workers in the course of their duties. This will simply not be tolerated.

Last summer, we delivered on our manifesto commitment to consult on this issue. We found that the large majority of respondents supported our proposal to double the maximum penalty to two years. This will ensure that the law provides our police and other emergency workers with sufficient protection to carry out their duties and will enable the courts to pass sentences that reflect the severity with which we view these offences. This measure builds on previous legislation introduced by the Government back in 2018. We have enhanced already the protection of emergency workers where more serious assaults such as ABH and GBH are committed—I think the noble Lord, Lord Paddick, made this point. These more serious offences obviously carry higher maximum penalties than common assault. Where such offences are committed against an emergency worker acting in the course of their duties, this is regarded as an aggravating feature of the offence, warranting a higher sentence.

Let me deal first with the amendment from the right reverend Prelate the Bishop of Gloucester. I am grateful to her for tabling the amendment, and to the right reverend Prelate the Bishop of Durham for acting as her spokesman this afternoon—I was going to say, “as the Aaron to her Moses”, if I may put it in those terms. The purpose of her amendment is to broaden the definition of “emergency worker” to encompass all staff in custodial institutions. The Committee will be aware that all prison officers, prisoner custody officers and those who exercise functions associated with these professions are already included in the existing definition of “emergency worker” from the 2018 legislation.

The problem is that broadening the definition of “emergency worker” can have unintended consequences. The broader definition would capture anyone employed or engaged to carry out functions in a custodial institution, which can extend to prisoners who undertake jobs within the institution. The amendment would then place this group of convicted prisoners on the same statutory footing as prison officers, constables and NHS staff. That would be unacceptable.

By means of increasing the maximum penalty for the assault of an emergency worker, we want to protect those who protect others. That is why it is right that emergency workers are on a different statutory footing. Clause 2, therefore, does not seek to amend the underlying definition of “emergency worker” that was accepted by Parliament when passing the 2018 legislation. I acknowledge the point made by the noble Baroness, Lady Fox of Buckley, given the work of the Bar Council in this area, but it is right, I suggest, that we acknowledge the special position of emergency workers, as Parliament did back in 2018.

Of course, that is not to say that any form of violence in custodial institutions is acceptable; it plainly is not. We want to make sure that our prisons are safe for all staff, as well as all prisoners. Picking up on the point from the noble Lord, Lord Ponsonby of Shulbrede—

[Lord Bassam of Brighton (Lab)]

I have a pertinent question. I am troubled by the rather lame excuse that the noble Lord offers from the Dispatch Box about the “unintended consequences”. Surely it would be very simple to put in place an exemption that barred prisoners from benefiting from that clause. I cannot understand why the noble Lord is so resistant to this particular move; there must be a workable way round it. I have been a Home Office Minister and have had lame excuses written for me—this sounds like one of those.

[Lord Wolfson of Tredegar (Con)]

I am afraid that the noble Lord appears to have missed the point of principle that I made before making what he characterises as a lame excuse, but which I thought was in fact rather a good point. The point of principle is that we have a definition of “emergency worker”, which Parliament accepted back in 2018. It is a good working definition, and we shall stick with it; that is a point of principle. The point on this amendment was that it goes too far because it has those unintended consequences. The noble Lord should not lose sight of my first point by concentrating only on the second, which he regards as lame and which I regard, from a legal perspective, as quite a nice point—I do urge upon him the point of principle as well.

I was coming to the point that we value prison officers. The noble Lord, Lord Ponsonby of Shulbrede, laid down the gauntlet and asked that we do so from the Dispatch Box. Of course we do. Our position on this amendment has nothing to do with not valuing prison officers or the work that anybody does in prison.

The right reverend Prelate the Bishop of Durham asked what we were doing to protect prison staff. Those who carry out corresponding functions to prison officers and prison custody officers are already included in the definition of an emergency worker. Offences against those people will be treated as an aggravating factor in sentencing guidelines. That is what I wanted to say in response to that amendment.

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[The Lord Bishop of Durham]

I am sorry—I thought very carefully about whether I should intervene. I was genuinely so taken aback by the Minister’s reference to prisoners being included that I nearly leapt up immediately. The question was then asked, but I have tried to replay it in my head. I absolutely understand that the Minister meant no offence but, out of context, I fear how it might be understood by those workers, such as chaplains, tutors and so on. By, in a sense, lumping them together with prisoners who have been employed, it could easily be misheard outside this House. I know that was not the Minister’s intention, but I ask him to put on the record that it was not what he meant.

[Lord Wolfson of Tredegar (Con)]

I am extremely grateful for the opportunity to do that. As I am sure everybody recognises, that was not the point I was making. I appreciate that it was regarded as lame by some people, but the point that I sought to make was that the distinction and purpose of the amendment was to expand the definition from prison officers to other people working in prison. My point was that from the way in which it is drafted—and I appreciate that it could be redrafted—it could and would be read so broadly as to include prisoners who were doing jobs in prison. It was certainly not what I was saying to place prisoners doing jobs in prison with chaplains and others who are working in prison. I am grateful to the right reverend Prelate for giving me the opportunity to make that clear, if it was not already.

[Lord Brown of Eaton-under-Heywood (CB)]

I seek one matter of clarification, although I should not need to. Is there no way, apart from raising the maximum sentence by legislation, by which government could bring to the attention of the prosecuting authorities, sentencing courts and so forth the aggravating features that cover all these amendments? There are the emergency workers in the first place, and the nauseating offence of potting, which I confess not to have heard of before, and assaults on prison officers. There are those who find themselves, in the ordinary course of their employment, exposed in these highly vulnerable circumstances to miscreance of an obvious character. Is there no governmental input to the Sentencing Council? Can the Government not influence those sorts of bodies to isolate the fact that these are manifestly aggravating circumstances, which should go to raise not only the likely sanction being imposed but the likelihood of prosecution?

[Lord Wolfson of Tredegar (Con)]

As the noble and learned Lord knows far better than I do, one has to distinguish between aggravating and mitigating factors and the likelihood of prosecution. With regard to the Sentencing Council, I am confident that it already has that point on board. The question before the Committee is that of maximum sentence rather than aggravating or mitigating factors. I have also said—and, I hope, explained—that there is clear guidance in place to make sure that, when these offences are committed, they are dealt with either through the courts or through prison adjudication.

[Baroness Chapman of Darlington (Lab)]

I just want to take the Minister back to the comments made by the right reverend Prelate the Bishop of Durham on the definition of prisoners as workers. I cannot think of any other legislation where a prisoner enjoys the same rights as a worker. There are many rights that workers enjoy in this country, but none of them that I am aware of apply to prisoners. There must be a way around this, perhaps by a government amendment or some sort of redrafting, that would allow the suggestion made to be incorporated.

[Lord Wolfson of Tredegar (Con)]

I think I made it clear earlier that I was making two points in response to this amendment. The point that we are focused on at the moment is whether we could have more—and I say this respectfully—felicitous drafting than the drafting of the amendment that we currently have. I have accepted in principle that one could, and I made that clear in my previous answer and my answer to the right reverend Prelate. However, I do not want us to lose sight of my first response, on the point of principle: we have a definition in the 2018 Act of “emergency worker”, and that was regarded in 2018 as suitable and fit for purpose. It treated that definition as a separate status and a distinct group, and the Government’s position is that definition was good in 2018 and remains so now.

[Earl Attlee (Con)]

My Lords, I am grateful to all noble Lords who have taken part in this debate. On Amendment 11 from the right reverend Prelate, I am aware of the problem that he describes, but I did not make my new offence cover other Prison Service staff. I deliberately excluded probation officers just for reasons of simplicity, but if I managed to make my potting amendment find favour with the House, I would have to decide who was to be protected by it.

I am slightly disappointed by my noble friend’s response, because I thought that I was offering him the best thing since sliced bread, but he turned me down. The problem for the Minister running the Prison Service is that he cannot direct the police force to investigate these issues and, as he carefully explained to the Committee, he cannot direct the Crown Prosecution Service to pay greater attention to these offences either. My noble friend has no tools to protect prison officers—so I suspect that the Prison Officers’ Association will be a little bit disappointed with his approach.

I think we identified the underlying issue, which is the probability of being prosecuted for these sorts of these offences, and we need to have another look at that. I shall, of course, withdraw my amendment, subject to the usual caveats and discussions with the Opposition Front Bench.

Police, Crime, Sentencing and Courts Bill

Lord Wolfson of Tredegar Excerpts

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

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

My Lords, perhaps I should first begin by apologising to the noble Lord, Lord Marks of Henley-on-Thames, for standing up at the same time as him. I am not sure whether I stood up too quickly or the noble Lord stood up too slowly, but we got there at the same time.

This group of new clauses relates to primary carers in the criminal justice system, and first I thank the right reverend Prelate and noble Lords for tabling these amendments. I know they were proposed in a recent legislative scrutiny report on the Bill by the Joint Committee on Human Rights, and this topic has been an area of interest to the Joint Committee during this and previous Parliaments. As set out during debates on the Bill in the other place, the Government support the principle behind these amendments. I hope, therefore, I will be able to provide to the House the reassurance that the noble Lord, Lord Carlile of Berriew, asked for. I can assure the noble and learned Lord, Lord Falconer of Thoroton, that we do take these points very seriously. More generally, I can assure the noble Baroness, Lady Massey, that when it comes to our sentencing reforms, we do consider the impact on children. However, the reason the Government do not propose to accept these amendments is that they do not consider them to be necessary, for reasons I will seek to explain.

When sentencing or considering the grant of bail to a defendant who is a primary carer of a child or who is pregnant, courts will consider principles established in relevant case law. There is a wealth of case law on this point. We have heard the contribution from the noble and learned Lord, Lord Thomas of Cwmgiedd, and I am reluctant to get into the details of criminal law in his presence. But it can perhaps be conveniently found in a case called R v Petherick in 2012—let me give the reference for Hansard: “EWCA Crim 2214”.

In that case, a single mother with a boy of 16 months was convicted—she pleaded guilty—of causing death by dangerous driving and driving with excess alcohol. The court set out nine points of specific and clear guidance—nine principles—which had to be taken into account with regard to sentencing. If I may summarise those in a sentence or two with no disrespect to the court, they make clear that the aims of custody have to be balanced against the effect that a sentence can have on others. That is the case both with regard to sentencing and with regard to pretrial detention. When I say, “on others,” this point is not limited to children, as a number of contributions to this debate have highlighted—particularly those from my noble friend Lord Hailsham, the noble Baroness, Lady Jolly, and, again, the noble and learned Lord, Lord Thomas. It does have broader application, and the court will obviously want to consider the effect of custody or pretrial detention on others who are dependent on the person who might go to prison. This is a point, therefore, with more general application.

I have talked about sentencing and remand in custody. When it comes to sentencing, the principles I have just set out, in broad terms, are reflected in detailed sentencing guidelines issued by the independent Sentencing Council. Courts are required by law to follow those guidelines, and the guidelines specify that being a “Sole or primary carer for dependent relatives” is a mitigating factor when sentencing an offender. The effect, therefore, is that the fact that the primary carer is such can tip the scales. What would otherwise have been a proportionate sentence if it was a sentence to custody can, if the person is a primary carer, become disproportionate. It can tip the scales.

As we heard from my noble and learned friend Lord Garnier, to whom I am grateful for his kind words, recorders and judges give—to use his word—anxious consideration as to whether a custodial sentence is required. Again, the position in law can be summarised like this: a custodial sentence can be imposed only where the court is satisfied that an offence, or combination of offences, is so serious that neither a fine alone nor a community sentence can be justified. Even where a court is of the opinion that the seriousness of an offence would ordinarily warrant a custodial sentence, it still has discretion to impose a community sentence after taking into account wider considerations. Community sentences are part of the important background to this debate. I think we will come to them later on in the Bill and I look forward to the thorough endorsement of the noble Lord, Lord Marks, of our proposals on community sentences, given what he said in this debate. That is the position with regard to sentencing.

On defendants awaiting trial, there is a general right to bail unless it is necessary for the protection of the public or the delivery of justice that the defendant be remanded in custody. A defendant accused of an imprisonable offence can be refused bail only where there is specific justification for that refusal, as specified in legislation. A number of noble Lords talked about the information which is available to the court about the personal circumstances of the defendant. The bail information report includes information about the direct effects on an individual and any dependants, should they be remanded in custody.

With regard to pre-sentence reports, which were also mentioned, guidance was introduced in 2019 for probation practitioners, in addition to the legislation already in place, which sets out that a request to the court for an adjournment in order to prepare a pre-sentence report is considered mandatory in cases involving primary carers with responsibilities for children or other dependants, and for those at risk of custody. An aide-memoire highlighting key areas for practitioners to consider when assessing the diverse needs of women in the context of offending was also issued in 2019 to assist probation practitioners to prepare those pre-sentence reports on women. We are currently running a pilot in 15 magistrates’ courts that specifically targets female offenders, as well as two other cohorts which have specific needs, for fuller written pre-sentence reports.

The noble and learned Lord, Lord Falconer, spoke about the importance of the courts giving reasons why they were refusing bail, for example, or sentencing somebody to custody. That duty is, with respect, unnecessary to impose on courts because they are already required by law to state in open court their reasons for deciding on a sentence. Moreover, where there are dependent children, sentencing guidelines, as I have said, require the courts to consider the impact on them at various points in the sentencing process. That is the effect of Section 52(1) and (2) of the Sentencing Code.

I turn to data, about which the noble Baroness, Lady Massey, my noble and learned friend Lord Garnier and the noble Lord, Lord Bradley, made points. I underline the point again from the Dispatch Box that data is critical. My noble and learned friend was very kind, but the fact is that I am quite keen on data. I am not the only person in the Government who is, but I certainly am.

I assure the noble Baroness, Lady Massey, that we have already committed to improving our work on data collection concerning primary carers in prison. That work is already under way. We already collect information on parental responsibilities but the current questions do not identify dependent children of primary carers using the correct definitions. We are therefore making changes to the questions to enable us to identify prisoners with primary carer responsibilities on their entry to prison, and to enable access to that information centrally—a point made, I think, by the right reverend Prelate.

We are already looking at how we can deliver our commitment to improve national data collection through changes to what is called the basic custody screening tool. That is completed shortly after somebody goes into prison and we want to capture more robust and reliable data on parental responsibilities. Responding to earlier reports from the Joint Committee, the Government have committed to collecting more data centrally and using that to inform policy and improve our services for prisoners with primary caring responsibilities.

[Lord Falconer of Thoroton (Lab)]

The first report of the Joint Committee on Human Rights in 2021 details in section 2 the concern expressed by the committee in 2019 that there was no data about carers who were in prison. The Government gave an assurance that they would do something about it in 2019. The committee produced another report in 2020, saying “You’re still not collecting that material”, and a Minister gave another assurance. In 2021, the committee wrote a third report—this report, containing these suggestions—saying that none of the previous assurances has been complied with. Why should we accept the assurances the Minister is now giving in relation to the 2021 report, when all previous assurances given to that committee have not been complied with, as detailed by the committee in its report, and as the Ministry of Justice has not denied?

[Lord Wolfson of Tredegar (Con)]

Work still has to be done, of course, but I hope that the noble and learned Lord will accept that we are doing more than we have done before. As I have tried to explain, we have put in place a process to identify what we need to collect and how we are going to do it. One must also take into account—the noble Lord who made this point will forgive me for not remembering who did so—that it can be difficult to get this information from people in prison. Some people do not want to provide information about dependent children and others who rely on them. I am not using that as an excuse, but one has to be alive to that point as part of the data collection service. All I can say to the noble and learned Lord is that I have this firmly in my sights. In this part of the criminal justice system, as, I would say, in others, data is really important and I am certainly focused on it.

I was going to make one other point on data, which I hope the noble and learned Lord will be pleased to hear. We will also consider not just the collection of data but what data can be published. It might be that not all data we collect can be published because of confidentiality issues, but we will certainly ensure that we publish what we can.

[Lord Falconer of Thoroton (Lab)]

This is a separate point. Amendment 215 would require the court to

“make inquiries to establish whether the offender is a primary carer for a child”

and, if it discovers that the defendant is, to then order a pre-sentence report about the circumstances of that child and the impact. Is the Minister asserting that that provision is currently in the sentencing guidelines?

[Lord Wolfson of Tredegar (Con)]

I hope I made that clear earlier; let me go back to my notes. I do not want to mislead the noble and learned Lord. As I understand it, the position is this: guidance was introduced in 2019 for probation practitioners, in addition to the legislation in place, which sets out that a request to the court for an adjournment in order to prepare a pre-sentence report is considered mandatory in cases involving primary carers with responsibility for children or dependants. The noble and learned Lord shakes his head—

[Lord Falconer of Thoroton (Lab)]

I am not disputing what the Minister says, but I read him as saying that that position is not reflected in guidance. He is saying something different: that if somebody asks for an adjournment to make inquiries, one has to be granted. That is obviously different from the amendment.

[Lord Wolfson of Tredegar (Con)]

I was going to come to the detail of pre-sentence reports a little later. Let me come to that and if the question is still alive, I will give way again.

I think I had completed what I was going to say about data, apart from one point. The right reverend Prelate asked about pregnancy data. In the time I have had available, I have been able to get the following response, but I am obviously happy to continue the conversation. In July this year, we published a national figure—for the first time, as I understand it—for self-declared pregnancies in the women’s estate and the total number of births that took place during the period in three categories: prisons, transit and hospital. That is found in the HMPPS Annual Digest. I do not know whether that has fully answered the question from the right reverend Prelate on specific data. If it has not, I am very happy to continue the discussion.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful to have the opportunity to respond to this short but focused debate. I am particularly grateful to the noble Lord, Lord Beith, for the measured way in which he introduced the amendment, which raises difficult issues, as I think all speakers have recognised.

The Government’s aim in this area can be briefly stated. I understand there to be relatively little or perhaps no disagreement across the Committee on this point, certainly in the light of what the noble Lord, Lord Ponsonby of Shulbrede, has just said. The aim is this: we seek to protect children from those who might take advantage of their position to sexually abuse them. The provisions we put in the Bill followed detailed review and consideration. We feel they provide the best protection for young people while still balancing—this is a critical point—where possible their right to fully consensual sexual relationships. I must underline that point at the outset, because it is very easy to overlook it.

The positions of trust offences set out in the Sexual Offences Act 2003 were never intended to apply in all scenarios in which a person might have contact with or a supervisory role in respect of somebody aged under 18. If you do that, in effect you raise the age of consent by silence. If we are going to have a debate about the age of consent, let us have one—but let us not have an inadvertent, sub silentio raising of the age of consent by having too wide a category of positions of trust.

I acknowledge that this is a very complex area. With respect, the noble Baroness, Lady Jones, said that this was a first for her because she quite liked a Henry VIII power. I am not sure whether it is a first for me that I am agreeing with her from the Dispatch Box; I think I have done it once before, but if it is not the first time it certainly does not happen too often. But I do agree with her that this is a very complex area, because we are trying to strike the right balance between protecting young people and respecting the right of those aged 16 or over to engage in consensual sexual activity.

Therefore, although it is very tempting to say, “Well, there’s been a case here and a case there, let’s widen the definitions”, we have to act on the available evidence—not anecdote, supposition or a case here or there, but real evidence. The question therefore is, as I think the noble Lord, Lord Beith, put it, if I can summarise his speech in five words, “Why these and not others?” I heard him say that I am unlikely to persuade him. I remember when judges said that to me. I rarely did persuade them—but let me have a go anyway.

The answer is this: we have looked across the field. We have spoken to a whole load of stakeholders, which I will not read into the record, but the number is vast. We have concluded that those who teach, train, supervise, instruct or coach in a sport or religion are particularly influential over a child’s development. That is why they should be captured in the positions of trust provisions. The reason is that those settings allow for roles that involve very high levels of trust, influence, power and authority. Particularly in the case of those involved in a religion, the figures are often also well-established, trusted and respected in the local community. Both sport and religion provide a child—a young person, I should say, as this goes to 18—with a strong sense of belonging, whether to a team, a squad, a community or a faith group. As noble Lords will understand, deep feelings held by the young in respect of those groups can provide unique and special opportunities for predators to exploit or manipulate them.

Another factor that we have taken into account is that when we come to sport as usually understood—for present purposes I do not want to get into the question of whether chess is a sport; that is perhaps for another government department—the physical nature of that activity means that coaches have legitimate reasons physically to touch in perhaps a more general sense than just touching, in other words putting their hands around, moving, manipulating and repositing the body of the young person they are coaching. A sports coach therefore has far more opportunities for physical contact than other roles. This again can be manipulated by abusers.

The amendment focuses on drama and music as further settings. Again, I hope it is clear from what I have said so far that I absolutely understand the motivation for these amendments but, without strong evidence to support their inclusion, I respectfully suggest to the noble Lord that there is no reason to include drama and music and exclude other settings in which adults work with children. I underline the point that it was never the intention that all settings where adults interact with children would be engaged. I suggest that it is dangerous to say, “Because there’s been a case here or a case there, we should include them.” We heard from the noble Baroness, Lady Brinton, that there had been a case involving chess in the United States. “Does that mean that we include chess here?” I ask rhetorically. I suggest the answer is no.

I will make one point on ballet—I am not sure whether that is a sport, an art form or perhaps both—of which I am obviously fairly ignorant. On the inclusion of dance, I suggest to the noble Lord that our definition of sport in Clause 45 includes types of “physical recreation” engaged in for the purpose of “competition or display”. I consider that this definition of sport would include dance. That might deal with the ballet point specifically, although I accept that the noble Lord’s point goes wider than just ballet.

I think the noble Lord, Lord Paddick, accepted that, in a number of these cases, there is no hard evidence—but we do have isolated cases. As I hope I have explained, we are seeking to rely on what appears to us to be the available evidence. To pick up the question, “What evidence would make you include new categories?”, the only answer I can give is that we are not limiting the nature of the evidence that will make us happy to consider other categories. I do not want to limit or straitjacket the sort of evidence we might look at in advance. If we find that new evidence emerges that might justify legislating further, we will do so. That is why we have put the Henry VIII power into Clause 45, so that we can add further activities if it appears appropriate—I emphasise “appropriate”—in the light of new evidence.

To come back to my main point, what we seek to do is strike this balance between safeguarding young people and, on the other hand, protecting the rights given to them by Parliament to engage in sexual activity on a consensual basis once they have reached the age of 16. I fear I might not have persuaded the noble Lord, Lord Beith, of the correctness of the Government’s position, but I hope I have explained it to him. I none the less invite him to consider withdrawing his amendment.

[Baroness Hamwee (LD)]

My Lords, before my noble friend responds, I feel very uncomfortable at the proposition that we should wait for examples of problems in specific sectors before there are provisions to deal with them. I think I have said enough, actually.

[Lord Wolfson of Tredegar (Con)]

I will reply very briefly to that point. When I say “new evidence”, I am not saying that there must be, God forbid, an incident. I am not circumscribing or limiting the nature of new evidence. If there is new evidence without there being an incident, we will look at that as well. I am certainly not saying that we will legislate only when, God forbid, there has been a terrible case. But one has to be careful. If one draws this net too widely, the effect is, sub silentio, to raise the age of consent. That was never the intention behind this provision.

[Baroness Hamwee (LD)]

My Lords, may I pursue that? What evidence are we talking about, then? We are all giving examples of where somebody in a position of trust might be by themselves with the person who trusts them. I do not follow what the evidence might be. I keep thinking of examples that have not yet been mentioned. Art lessons is another. I have been in an art lesson where the tutor has helped me to produce what I have ineptly tried to produce on a piece of paper. One could go on. What is “evidence” in this context?

[Lord Wolfson of Tredegar (Con)]

The art lesson may be a good example. With respect, there is a huge gulf between the relationship of somebody to their art teacher, if they go to an art group, and the sort of intimacy that a physical sports coach has with somebody or the sort of power, control and sense of authority that a religious leader has over a young person.

I shall give one example of evidence, picking a made-up country from private international law. Let us say that, in Ruritania, there is a huge number of cases of a particular category. It might well then be said, “We can see there is a problem with this category. It has happened in Ruritania. The circumstances are the same as in the UK. You should add that.” That is just one example. I do not want to limit the evidence that we would rely on but, with respect, we cannot say that, because there has been a case in an art class or a case here and a case there, we will include all these categories. We should not include every circumstance in which adults have close contact with under 18 year-olds. I think the noble Lord, Lord Paddick, wants to come in.

[Lord Paddick (LD)]

I am grateful to the Minister for explaining the Government’s position but I do not understand the argument that we are surreptitiously changing the age of consent. If a 16 or 17 year-old wants to have a sexual relationship with their music teacher, they had better find another music teacher; the solution is quite simple. They should not continue in a professional relationship and have a sexual relationship at the same time.

[Lord Wolfson of Tredegar (Con)]

With great respect, the point put to me by the noble Lord, Lord Paddick, shows that if we draw this too widely, we are limiting the ability of a 16 or 17 year-old to have a sexual relationship with that person. This the balance that we want to strike. At the moment, there is nothing to prevent a 17 year-old having a consensual relationship with a person with whom they have a tuition relationship or other kind of relationship. The question is: where do you draw the line? We say the line should be drawn at sport and religion. If you draw it too widely, you impact on that person’s ability to have a sexual relationship with other adults.

[Lord Beith (LD)]

My Lords, I start by answering one of the Minister’s questions: what would constitute evidence? The answer is: the same kind of evidence that was sufficiently persuasive for the Government to include sport and religion in this definition. I would expect it to be on exactly that level, bearing in mind the context, the professional relationship and how it operated.

I start where I agree with the Minister. We are not seeking to change the age of consent in this legislation; it would be the wrong place to attempt such a thing, even if there were strong arguments for doing so. What should determine the position that the law provides in this area should not be the selection of certain sports because there appears to be more or less numerical evidence of abuse; nor should it be an attempt to import some new age of consent; it should be on the same basis, whichever area of activity we are talking about.

The Minister said something very interesting which will cause us to reflect between now and Report. He said that, in the Government’s view, dance—or ballet, at any rate—is included. There is a compelling argument for that, which is one of the reasons I was inspired to put down this amendment in the first place. This is a very physical activity during which people who are themselves very skilled at it have to explain—and sometimes demonstrate or assist those they are teaching—some quite extraordinarily physical things. That is done by hundreds and thousands of ballet teachers, and has been for many years, with total propriety, but it is a context in which abuse can occur. In that respect, as the Minister obviously realised, it resembles the kind of definition he brought to bear for sport.

I agree also that there is a balance between, on the one hand, defining a position of responsibility and placing responsibilities and limitations on someone who has such a position, and, on the other, interfering with the rights of 16 and 17 year-olds who have reached the age of consent. My noble friend Lord Paddick highlighted the difficulties in achieving that balance when he pointed out that we would hardly welcome a situation in which it was generally accepted as okay for someone in that kind of professional relationship to continue a sexual relationship when attention was drawn to it. We would mostly expect the professional person to believe that they had to end the relationship, even if it were entirely consensual.

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[Lord Wolfson of Tredegar (Con)]

My Lords, this group of amendments focuses on criminal damage and the need for Clause 46 to stand part of the Bill. Clause 46 addresses a sentencing limitation in the existing legislation to ensure that offenders who vandalise, attack or destroy memorials serve appropriate sentences that fit the severity of the crime.

The present position is this: where there has been criminal damage to a memorial and the value of that damage is less than £5,000, the court’s sentencing powers are limited in that the offence must be tried summarily and can attract a maximum penalty of only three months’ imprisonment or a fine of up to £2,500, which does not reflect in all cases the severity of the crime and the harm caused. We must remember that we are seeking here to provide a maximum sentence, not a mandatory sentence.

Clause 46 therefore removes this restriction by amending Section 22 of the Magistrates’ Courts Act 1980 so that where damage or desecration of a memorial occurs and amounts to an offence of criminal damage, the court will no longer be constrained in its sentencing options where the value of the damage involved in monetary terms is assessed to be less than £5,000. These are important changes that will ensure that courts can sentence appropriately, given the facts of the particular case.

I turn to the amendment from the noble Lord, Lord Paddick, to remove new subsection 11B from Clause 46(2) on criminal damage to memorials. New subsection 11B provides that moveable items such as flowers, flags or wreaths that are left in, on or perhaps adjacent to a memorial and—this is important—have

“(or can reasonably be assumed to have) a commemorative purpose”

will also

“be regarded as a memorial.”

It is important to recognise that items such as these, when placed at a structure such as a gravestone or—let us pick a topical example—the Cenotaph for the purpose of commemoration, albeit temporarily, should be covered by the clause. If someone goes to the Cenotaph, takes all the wreaths and chucks them around and destroys them, the fact that the value of those wreaths might amount to £4,683 ought not to prevent the court treating that offence with the severity with which I think everybody would regard it.

In the summer of 2020 there were attempts to set fire to the flag on the Cenotaph. The sentencing of those who burn the flag on the Cenotaph should not be limited by the value in monetary terms of the piece of fabric consumed by fire that is part of the memorial—ditto damaging a poppy wreath. The problem is that under the amendment that the noble Lord, Lord Paddick, wishes to make, those acts of vandalism and damage would not be covered as damage to a memorial. That is not right.

There are occasions when moveable objects such as these, when placed on a memorial, gravestone or similar structures, constitute the very essence of a memorial. A rose, when placed on the tomb of the unknown warrior, ceases to be—if I can put it this way, with apologies to Shakespeare—just a rose; it is something else. Those items should get the same protection as the memorial itself.

I therefore strongly disagree, respectfully, with the noble Baroness, Lady Jones of Moulsecoomb, when she says this is just about culture wars. It is not. Let me be absolutely clear: this Government have no problem with discussion, debate or challenge. If you want to say that Nelson was a great man or a terrible man; if you want to focus on Churchill’s successes in World War II or his actions in the Bengal famine, that is absolutely fine. What is beyond debate, I am afraid, and puts you into the proper realms of the criminal law, is defacing monuments.

Let us take an example from law. I did a little research, and it turns out that both the Grey of Gray’s Inn and the Lincoln of Lincoln’s Inn were leading advisers to Edward I, who in 1290 published the edict to expel the Jews from Britain. Does that mean I should go around defacing bits of Gray’s Inn or calling on Lincoln’s Inn to change its name? No. Because we recognise that these are matters for debate.

We can debate and discuss, but here we are talking about defacing monuments: criminal damage. That is not a debate on history. That is destroying the cultural fabric of this society. I heard the noble and learned Lord, Lord Falconer, say very deftly, if I may say so, that if it is a memorial to—I think I jotted this down correctly—“a much-revered and loved person”, that ought to perhaps go to the Crown Court and not the magistrates’ court. I respectfully suggest that a much-revered and loved person to one group of people is perhaps entirely the opposite to another; I do not agree that that is a workable basis for the law.

We have to say that the monuments we have are the monuments we have; they deserve protection. If we want to change a monument and have it pulled down, there are ways to do that. We can have a debate in your local council or a vote—it depends who the monument is being put up by—but we cannot have a right to deface monuments knowing that the protection given by the criminal law is too low in certain circumstances and, I suggest, extremely low in these circumstances.

The noble and learned Lord will forgive me if I do not respond in this debate to the point about violence against women and girls; we will debate that on many other occasions.

I now turn to the noble and learned Lord’s amendment about damaging or destroying life-saving equipment. I say at the outset that the case he outlined is extremely distressing and appalling. I hope I may be allowed to say that my sympathies and the Government’s of course go out to the family. The fact that it had to be locked with a PIN is, as I understand it, the genesis of his argument and what provoked the amendment. We therefore understand and agree on the intention behind the amendment. It is almost incomprehensible that anybody would damage or destroy obvious life-saving equipment.

While I understand the need for an effective deterrent, I respectfully suggest that the amendment will not have the desired effect, for the reason he almost touched on: it is already an offence to intentionally or recklessly damage or destroy property, including life-saving equipment, under the Criminal Damage Act 1971. The maximum penalty is 10 years’ imprisonment. Additionally, Section 1(2) of that Act goes further and makes specific provision for an aggravated offence of criminal damage where the defendant intends to endanger life or is reckless to such endangerment. That offence already attracts the possibility of life imprisonment.

If in this case it could be shown that the defendant intended to endanger life or was reckless, we already have a maximum potential sentence of life imprisonment. If that is not already proving an effective deterrent, perhaps the better course of action is for the various government departments responsible for water safety, health and safety and law enforcement to come together, see what is not working and identify working solutions.

--- Later in debate ---

[Earl Attlee (Con)]

It seems pretty obvious that if you get hauled before the courts for damaging life-saving equipment, you are going to be in deep trouble. What you do not know is what the penalties are.

[Lord Wolfson of Tredegar (Con)]

We seem to be reaching a measure of agreement. I still say, with respect, that because we have that on the statute book at the moment, it is not appropriate to re-legislate in another place. I will take away the points put to me by the noble and learned Lord about more education and sign-posting, and clarifying and explaining to people what the law is. If people do not know what the law is in the Criminal Damage Act 1971, it is unlikely that they are going to be any more familiar with the Police, Crime, Sentencing and Courts Act 2021, as I hope it will be. If we have it in the law, however—and we do—with the reckless addition of a maximum sentence of life imprisonment, I suggest that that ought to be sufficient. On that basis, I invite the noble Lord not to proceed with the amendments. I hope that I have already responded to the amendment of the noble Lord, Lord Paddick.

[Earl Attlee (Con)]

My Lords, as usual, my noble friend has been very helpful, but what he has not convinced me about is why there is an increased deterrence value in having a maximum sentence of not, say, two years but one of seven years. I do not see why going to seven years is going to increase the deterrence value of the new offence.

[Lord Wolfson of Tredegar (Con)]

I am sorry, is my noble friend now back on the memorials point?

[Earl Attlee (Con)]

Yes.

[Lord Wolfson of Tredegar (Con)]

The short answer to that is that I did not make my argument on the basis of deterrence. Sentencing encompasses a number of factors: there is deterrence; there is the actual punishment for the offence; there is marking society’s disapproval at what was done. I hope that I made my argument very clearly on the first two. I was not suggesting that people would necessarily be deterred; I hope that they will be, but that is not the main basis of my argument.

[Lord Paddick (LD)]

My Lords, I thank all noble Lords for taking part in this short debate, particularly the noble Baroness, Lady Jones of Moulsecoomb, for her support, albeit coming at the issue from a slightly different angle to the one from which I was coming. I also thank the noble and learned Lord, Lord Falconer, for picking up on what I said, which is that this needs to be more targeted. I specifically said that Clause 46 “as drafted” is not suitable. It needs to be much more accurately targeted; otherwise, it enables people to make the accusation that I did not make, that this is about dramatically increasing the penalty for what could be very minor damage to a statue of a very divisive figure. In fact, I made reference to the fact that doing anything to a grave, for example, could be deeply distressing and it may be that the penalty needs to be increased for that particular purpose. Clause 46, however, goes far too wide and draws those who feel that it is about culture wars into the argument, where that would not be the case if it were more far more tightly drawn; but at this stage, I beg leave to withdraw my amendment.

Police, Crime, Sentencing and Courts Bill

Lord Wolfson of Tredegar Excerpts

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

[Earl Attlee (Con)]

My Lords, I rise briefly to support these amendments. The noble and learned Lord, Lord Falconer, told us roughly how many pets had been stolen. Can the Minister tell us how many prosecutions have taken place for theft of a dog?

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

My Lords, I rise to respond to an amendment about pet theft, but I will start by saying a few words about amendment theft. The noble and learned Lord, Lord Falconer, stole some of the Committee’s time to give us a lecture about the rule of law. I regard the rule of law as a matter of supreme importance, but let us remember what it is and is not.

First, it is not a law; it is a constitutional principle. Secondly, we can have a debate about the scope of the rule of law. The rule of law as adumbrated by Lord Bingham, for example, has a different scope from that set out by Lord Justice Laws in his book; there are different views as to the breadth of the rule of law. But everybody agrees that one has to abide by the law as set out by a court. There was no court in the circumstances set out by the noble and learned Lord. The only court involved is the court of Parliament and, with great respect, the other place was quite within its rights both legally and, I suggest, morally to set out its own procedures.

[Lord Falconer of Thoroton (Lab)]

Do I understand the Government’s position to be that there is no element of the rule of law engaged in complying with the court of Parliament, and in particular the requirements of Parliament?

[Lord Wolfson of Tredegar (Con)]

What happened today was Parliament complying with the rules of Parliament, because ultimately Parliament regulates itself. That is how it works. The phrase “rule of law” in the normal sense means a Government or an Executive abiding by the rule of a court. The only relevant court here is the court of Parliament.

However, I now turn to pet theft. I am sure we will come back to the rule of law, and perhaps the human rights issues, when we discuss the Judicial Review and Courts Bill. On pet theft, I thank the noble and learned Lord for tabling this amendment. As he set out, on this point there is actually very little between us. The topic of pet theft caused some consternation in the other place, and—again I agree with the noble and learned Lord on this—quite rightly so. Pets should not be seen as just property; that is at the heart of this issue. Pets are cherished members of the family, so it is right that we take time to consider, as the Government are doing, what measures we can and should take to tackle this abhorrent behaviour.

The Government’s Pet Theft Taskforce reported on its findings in September. It recommended a number of measures to address this crime, including a new offence of pet abduction. Your Lordships might ask why we should create such an offence when a simple pet theft offence might suffice. In that regard, I note that the noble and learned Lord’s amendment in large part mirrors the wording in the Theft Act 1968. However, I suggest to the Committee that we need to reconsider how pets are treated in law, because they are not just possessions or chattels. Therefore, I respectfully suggest that the wording of the Theft Act is inapt; it does not encompass the issue sufficiently. As the noble Baroness, Lady Bakewell of Hardington Mandeville, set out, that is particularly the case now we have seen so many cases of pet theft during the Covid period. We recognise that animals should therefore be treated as more than property. We are already bringing forward legislation to crack down on puppy smuggling and other cruel crimes, and I hear the points made by the noble and gallant Lord, Lord Craig of Radley, and my noble friend Lord Attlee.

In the new offence of pet abduction, we will seek to bring into focus not merely the taking of a piece of property or a chattel but the impact on the animal and its welfare when a stranger takes a pet away from its carer. This new offence, alongside the other recommendations from the task force, will make it harder for thieves to abduct and sell pets, make it easier for the police to catch them, and ensure that any welfare concerns can be appropriately reflected in the punishment given to offenders.

I will pick up two shorter and, I accept, more minor points which are relevant to this issue. First, the noble and learned Lord’s consequential amendment expands the scope of Section 17 powers under PACE. That section allows a constable to enter and search premises for the purpose of arresting a person for specified offences, and the amendment would include the new pet theft offence in that. We suggest that this is unnecessary. Because the amendment proposes to make the offence triable either way, the Section 17 powers would already be available.

Secondly, the noble and learned Lord has tabled an amendment in respect of Scotland. The Committee will be aware that crime and justice are devolved. Therefore, it would be for the Scottish Government and Scottish Parliament to consider whether they wanted a specific offence under the distinct operation of Scots law.

Coming back to the main issue, the Government have announced that they will take appropriate action. I am afraid I cannot put a date on that today, but I hear the strength of feeling on this issue. The Government have made their intentions clear, and I hope that, whatever future debates we may have on the rule of law, the noble and learned Lord will withdraw his amendment.

[Lord Falconer of Thoroton (Lab)]

Are the Government intending to table an amendment to this Bill to deal with pet theft?

[Lord Wolfson of Tredegar (Con)]

I cannot commit to that, but, as I say, I have heard the strength of feeling and what the noble and learned Lord has said on this topic. I am sure we can have future discussions on this point.

[Earl Attlee (Con)]

My Lords, will my noble friend take the precaution of instructing parliamentary counsel to draft suitable legislation just in case?

[Lord Wolfson of Tredegar (Con)]

My Lords, I shall put it this way: I am well aware that if we wanted to table the amendment to this Bill, we would need a properly drafted clause, and we know how to go about that.

--- Later in debate ---

[Lord Falconer of Thoroton (Lab)]

My Lords, we have witnessed a rather remarkable half an hour in the House where an overwhelming case was made. I pay a special tribute to the noble Baroness, Lady Hayman. I thought her case was overwhelming until I heard the noble Baronesses, Lady Brinton and Lady Cumberlege. I then thought, “Goodness me, there are more reasons than those which the noble Baroness, Lady Hayman, has given.” My mind then moved to the possibility of legal difficulties and whoosh, the noble Lord, Lord Pannick, came in and dealt with them all.

What is the reason for not doing this? The noble Lord, Lord Pannick, gave two possible reasons. He dealt with what might be the arguments in relation to the breadth of the amendment, and I completely agree, but if the Government have some good reasons for why this amendment should be changed, I am sure that the House will deal with them. The other reason given was the Law Commission. As the person responsible for the Law Commission over a long period of time, over 50% of its reports never see the light of day. It takes a long time to get there.

I ask myself another question. Can you imagine any provision or suggestion that the Law Commission would make which would cut across this amendment? I cannot. I would expect the noble Lord—sadly not the noble and learned Lord—the Minister, to give reasons why this will not happen, because like the noble Baroness, Lady Cumberlege, I was encouraged by the extract that she read of what sounded to be an incredibly understanding speech by Victoria Atkins in the other place, which was then dashed. The Law Commission is manifestly not a legitimate excuse. It should be treated with utter contempt if it is advanced as a reason. From the point of view of the Government, the work has been done by the campaigners, Stella Creasy and the crack squad of amenders that we have just heard from, so it costs the Government nothing to put it into the Bill. There will be some additional costs to the criminal justice system, and the police will deal with a number of cases, though I suspect not many, so there is not much public expenditure. The question for the Minister is: why not?

[Lord Wolfson of Tredegar (Con)]

My Lords, my noble friend Lord Attlee indicated that I should come along quietly. I am not going to do that; however, I hope that I will come along realistically and clearly in setting out the Government’s position. There is no dispute in this Committee that the behaviour we are talking about is absolutely abominable and indefensible. I therefore appreciate why a proposed new clause on this distressing subject of breastfeeding voyeurism has been tabled for debate. I start by expressing my unequivocal support for the mothers who have experienced this sort of appalling behaviour.

As the noble and learned Lord, Lord Falconer, said, we have heard a number of really outstanding speeches, some of which were very personal in terms of people’s history and families. I respectfully endorse the point made by the noble Baronesses, Lady Hayman and Lady Brinton, that this is not just a matter of protecting privacy or preventing distress; it is also important because we want to promote the very real benefits of breastfeeding. I take all the points made in that regard on board; I also take on board the point made by the noble Baroness, Lady Jolly, on the bonding time—the quiet time, if I can put it that way—that breastfeeding provides. On whether breastfeeding also benefits fathers because we do not have to get up at night, on that I will—if, as a Minister in a UK Government, I am allowed to dip into a foreign legal system for a moment—plead the fifth amendment.

To pick up a point made by the noble Baroness, Lady Hayman, I assure the Committee that, depending on the specific circumstances, it may be possible—I underline “may” because I accept that it will not be possible in all circumstances—to capture this sort of disgusting behaviour under some existing offences, including public order offences and offences dealing with harassment and stalking, along with the common-law offence of outraging public decency. However, this is not a complete answer; I do not put it forward as such. We recognise that the law in this area is not always clear, and that consideration should be given to improving it. That is why we asked the Law Commission to review the law around the taking, making and sharing of intimate images without consent, to identify whether there are any gaps—or, rather, what the gaps are—in the scope of protection already offered to victims. The review looked specifically at voyeurism offences and non-consensual photography in public places, including whether the recording and sharing of images of breastfeeding should be included in the scope of “intimate” images for the purposes of any reformed criminal law.

However, a change in the law here will not be straightforward. I will explain why in a moment. With an amendment such as the one moved by the noble Baroness, there may be a variety of situations in which it is still not an offence to take a picture of a person breastfeeding. That is why the Law Commission’s review is looking into intent, the definition of “image” and other circumstances relevant to this issue. As the Committee is already aware, the Law Commission’s work has gone at some pace. It obviously has an important eye for detail; that is why it is there. It intends to publish its recommendations by the spring of next year, so we are certainly not trying to kick this ball into the long grass. We are proactively considering what more can be done to tackle this behaviour and protect mothers now, ahead of the Law Commission’s recommendations for reform of the law in this area.

However, I respectfully disagree with the noble Baroness, Lady Hayman, that this issue is clearly defined in her amendment. I want to pick up on the point made by the noble Lord, Lord Pannick, if I may; we have had the benefit of some discussions. A number of points look like drafting points but are not, because they really go to the question of the scope of the proposed amendment and what it is seeking to encompass. Let me give a couple of examples, without turning the Committee into a legislative drafting session. Here is example A; I will try to use the initials from the amendment. A takes a photo of his wife, partner or girlfriend on a beach in her bikini, intending to use that image for his own sexual gratification. Another woman, B, is on the same beach, breastfeeding her baby, and is unintentionally caught by A in the picture. I heard what the noble Lord, Lord Pannick, said, but I respectfully suggest that this would be caught by the proposed amendment. A would have no defence as, first, he intended the picture for sexual gratification and recorded the image for that purpose. Secondly, he would have no defence of consent by B because B did not consent. A would also not be able to have the second defence of reasonably believing that she was giving consent because he had no idea at all that she was in the picture.

That is one example, but this goes further than drafting. Let us say that A was aware that B was caught in the background of the photo but was not aware that she was breastfeeding. Again, A would not be able to say that B had consented or that he reasonably believed that she had consented. Further, would an image of someone breastfeeding that did not actually include the act of breastfeeding—for example, a photograph capturing only a breastfeeding mother’s face—be captured under this amendment? What parts of the body, if I can put it that way, would we require the image to capture? As the noble Baroness, Lady Brinton, explained, this is different from the upskirting offence because the law there condescends to particular parts of the body that must be captured in a photo. Would we wish to capture images taken of breastfeeding regardless of whether it is in a private, semi-private or public setting?

I underline to the Committee that I do not raise these matters as drafting points or to be difficult. On the contrary, it is because this issue is so important that we must get the nature, boundaries and scope of the offence absolutely correct.

[Lord Pannick (CB)]

Does the Minister accept that his second potential problem would easily be dealt with by a drafting amendment to make it clear that the offence relates to a photograph or video of a breast? It would not be difficult to draft that. In relation to his first concern, which, as I understood it, was that if someone takes a photo of their wife or girlfriend breastfeeding for the purpose of sexual gratification and there is some other woman in the background—oh, I am sorry, have I misunderstood?

[Lord Falconer of Thoroton (Lab)]

Before the Minister answers that question, does he not also agree that we have perhaps seven or eight weeks before we get to Report, so the pettifogging points he is making could plainly be dealt with if we all sat round a table and agreed a draft?

[Lord Wolfson of Tredegar (Con)]

In drafting legislation, the first thing we need to do is make sure that we agree on the nature and scope of the amendment. I have tried to make it clear that I am not putting these points forward as pettifogging points of drafting. There are important points underlining this about what we want the amendment to cover. I do not know whether the noble Lord, Lord Pannick, was about to rise again; should I give him an opportunity to do so?

[Lord Pannick (CB)]

It may be thought by the Committee that the first example that the Minister gave was somewhat esoteric and unlikely to occur in practice. The risk of such esoteric events occurring is more than outweighed by the actual mischief that this amendment seeks to address. In any event, the same objections—the noble and learned Lord, Lord Falconer, called them pettifogging; that is his word, but I understand why he said that—could well be raised in relation to upskirting, in that pictures could be taken in whose background there is some other unfortunate woman. Perhaps the Minister might wish to reconsider these matters. We would all be happy to sit round a table and agree a draft that meets these points.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

We are all united in our admiration for the parliamentary counsel and draftsmen, absolutely—there is no doubt about that. I do not know whether the noble Lord, Lord Pannick, is an habitué of Instagram. If he were, he would appreciate that the example that I have given is far from unlikely: people take photos of their wives or girlfriends or, indeed, of people who they do not know, but who are not breastfeeding, for all sorts of purposes. Under the definition in the amendment at the moment, if a person is caught in the background of a photo breastfeeding, there would be an offence.

Police, Crime, Sentencing and Courts Bill

Lord Wolfson of Tredegar Excerpts

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

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

My Lords, I am grateful to the noble Lord, Lord Berkeley, and others for speaking to these amendments. This group considers the sentencing of road traffic offences, and I propose to take each one in turn, if I may. I hope that the noble Lord will understand if I do not comment on the specifics of the particular cases he mentioned; not only do I not personally know about them but, as a matter of general approach, it is unwise for a Minister to comment on a court’s decisions in particular cases when they have obviously not heard the evidence and seen the facts. I do, of course, extend my condolences to the victims in those cases. I also acknowledge the moving contribution from the noble Baroness, Lady Hayter of Kentish Town, and her particular background in this area.

The noble and learned Lord, Lord Judge, reminded us that the law in this area is complex; it now fills a very weighty tome, Wilkinson’s Road Traffic Offences. I will come back at the end of my remarks to the question of an overall review, which the noble Lord, Lord Berkeley, also mentioned. Despite the fact that they perhaps take up more space than they ought to, I think it is fair to say that the current driving laws, while not perfect, work well in the vast majority of cases.

Importantly—this theme ran through the Committee’s debate and was a point made by the noble Baroness, Lady Jones of Moulsecoomb—we have to strike a balance between the culpability of the driver and the harm or consequences which they cause. That is particularly important in the area of driving, where a moment’s inattention can have such drastic consequences.

I will not comment on the other two areas of life which the noble Lord, Lord Russell of Liverpool, speaking unwhipped, put before us. However, it is often commented that the average person does think that they are an above average driver. Even my maths is good enough to realise that we cannot all be above-average drivers, at least not all the time.

The fact that some of these amendments seek to lower the culpability required before an offence is committed, and others seek to raise the level of culpability needed, might indicate that, broadly speaking, we have the balance about right at the moment. I will speak to the amendments in turn, but I can assure the noble Baroness, Lady Jones, that victim blaming is no part of my or the Government’s response to any of them.

Amendment 152, which aims to replace Clause 65 in the Bill, does two main things. First, it would replace—I think the noble Lord said it “redefines”, but it effectively replaces—the current objective test of what amounts to careless or dangerous driving with a new test which is, essentially, linked to breaches of the Highway Code. The new test would apply to all offences which relate to or incorporate careless or dangerous driving. Secondly, the new clause would replace the existing

“causing death by careless driving under the influence of drink or drugs”

offence with new offences of causing death “or serious injury” by driving under the influence of drink or drugs. The Government have serious concerns about the way this amendment would change the current law. We believe that it would render the current law inconsistent, unworkable and unjust. I will try to explain why we say that.

Given the particular nature of driving, bad driving offences are based not on establishing the intent of the driver but on considering the standard of the driving. The test in law compares the driving of the defendant to that of a notional careful and competent driver, so it is an objective test. If the driving falls below that of the careful and competent driver, the driving is careless; if it falls far below that standard, it is dangerous. This amendment seeks to replace that objective test based on the standard of a person’s driving, which is the current law, with a new definition of dangerous driving which applies to all offences of dangerous driving, including causing death or serious injury.

As we have heard, the proposed new test is linked to breaches of the Highway Code, and here the problem starts. Noble Lords will know that the Highway Code contains references to behaviour that gives rise to criminal offences, and that those offences are set out elsewhere in legislation. But it also contains advisory provisions which are not criminal offences. We should be clear that, when we talk about a breach of the Highway Code—when you do something which it says you should not be doing—you are not always referring to something which amounts to criminal offending. Indeed, often breaches of the Highway Code are not criminal offences.

As the noble and learned Lord, Lord Hope of Craighead, pointed out, under this amendment the standard for dangerous driving could be met by a breach of the Highway Code that causes no more than a little “inconvenience”—one of the tests in the amendment—to another road user. At the same time, the offences covered by dangerous driving attract significant custodial penalties, despite the attempt to limit this offence to “serious” breaches of the code. Serious breaches are, in turn—and, with respect, I suggest inappropriately and impractically—defined in relation to passing or failing a driving test. So where does that get us, when we put it all together?

--- Later in debate ---

[Baroness Hayter of Kentish Town (Lab)]

Is the Minister saying that if we drafted this slightly better, with “dangerous driving” included, he might accept it?

[Lord Wolfson of Tredegar (Con)]

I will be very careful here because the law in this area is really complex. I was going to say this later but will preface it now. I am very happy to have a discussion on these points. I am reluctant to reply to a drafting suggestion from the Dispatch Box but, if the noble Baroness writes to me, I will certainly write back and we can have a discussion. I hope that is helpful and answers her question.

On this part of Amendment 152, the five-year maximum penalty for causing serious injury also contrasts with the two-year maximum proposed for the new offence of causing serious injury by careless driving in Clause 66, although the culpability levels are broadly similar. Saying clearly what should not need to be said, we recognise the seriousness of driving while unfit to do so through drink or drugs, but we also must have laws that reflect the various levels of culpability of drivers across the piece. Perhaps it will be more useful to discuss this against another draft, if that is what the noble Baroness wants. This draft does not strike a fair balance and therefore we cannot support it.

Turning to Amendments 167 and 168, I assure the noble Lord, Lord Berkeley, that we take road safety seriously. The sanction of disqualification is a very helpful tool, an integral part of the overall approach to road traffic enforcement and, therefore, to promoting road safety. However, again the sanction of disqualification must be proportionate. He proposes amending disqualification periods for stand-alone offences from two years to five years. We are not persuaded that an increase of that magnitude is warranted for all the offences which the amendment would encompass. For example, two offences that would fall within the amendment involve causing serious injury to other road users, and another covers any offence where the driver has incurred a disqualification in the previous three years. The proposed increase is unduly harsh in these circumstances.

We would want to think carefully and coherently across the piece about amending the periods of disqualification for various offences. We want to keep sanctions at the right level, and we keep this under constant review. With respect, the noble Lord has much to contribute to the road safety debate. I would be very happy to meet him and others to discuss potential changes to the existing periods of disqualification. Perhaps we can arrange that. I heard what my noble friend Lord Attlee said, and recall that on the then Domestic Abuse Bill, we found that what we called a teach-in was quite useful. That might be a useful way of organising this, with specialist officials in the MoJ and/or the Department of Transport. I will be in touch with the noble Lord on that.

Also, in the context of disqualification, the noble Lord proposes reducing, from three years to two years, the timeframe for which offences would be regarded as repeat offences. As repeat offences, this would trigger a longer disqualification period, of two years rather than 12 months. Three years is the time for the totting-up process. We think that it is useful to keep the same period for repeat offences.

I turn to the amendments to the penalties for repeat instances of certain offences. The noble Lord proposes an increase in the minimum period of disqualification from three years to 10 years. Ten years is a considerable period of disqualification. It would affect not only the disqualified person but possibly their families in serious ways. We must remember that those convicted in these circumstances often also face a custodial sentence in addition to any driving ban that they receive. Therefore, one must look at the disqualification period in that context.

The length of a driving ban is at the discretion of the courts. They sometimes impose a lifetime ban. The noble Lord will know, but I will make it clear to the Committee, that the courts have a statutory duty to take into account the impact of a custodial sentence when imposing a driving ban, so it is not diminished by the period spent in custody. However, we do not think that a minimum period of 10 years would be proportionate in respect of the offences that currently carry a three-year minimum period of disqualification for repeat offences. The three-year period is a minimum. As I have said, the courts can disqualify in excess of that if necessary.

The noble Lord also proposes a minimum disqualification period of two years for drivers convicted of dangerous driving. A person who is convicted of dangerous driving is still subject to obligatory disqualification for a period of one year. That can be increased by a judge in light of particular circumstances. Again, we are not persuaded that a conviction of dangerous driving warrants a longer minimum ban, nor do we propose to accept the proposal to reduce the penalty for the offence of causing death by careless or inconsiderate driving from five years to two years. This is a good example of the balance I spoke about earlier. As the noble and learned Lord, Lord Brown, mentioned, when death results, the law often looks at things differently. When drivers cause the death of another person, a road user of any sort, through unacceptable behaviours such as careless driving, the penalties have to be sufficient to reflect the seriousness of their actions.

Turning to the amendments on the offence of driving while disqualified, if this sanction is to work effectively, people must be forced to adhere to the disqualification period. We know that that is not always the case. That is why we have a dedicated offence of driving while disqualified, which carries a maximum penalty of six months in prison. We consider that the right penalty for that offence. It is sufficiently effective in discouraging people from driving while disqualified and we do not believe that a longer period would be any more effective.

Finally, the noble Lord proposes an amendment which seeks to make it an offence to cause death or serious injury when opening a car door, with a penalty of a fine, imprisonment or both, obligatory disqualification from driving and obligatory endorsement of penalty points. We believe that the new offence is unnecessary, because causing death or serious injury when opening a door would already be covered by existing offences under Regulation 105 of the Road Vehicles (Construction and Use) Regulations 1986, which is brought into play in this context by Section 42 of the Road Traffic Act 1988.

More generally, while I recognise the importance of checking the road carefully before opening a car door, the penalty must be proportionate. The penalty for the current offence is limited to a fine and we do not have any evidence base upon which to agree or accept that the new and much higher penalties for the offence proposed by the amendment are warranted or justified. However, we are updating the Highway Code to improve guidance for opening vehicle doors carefully and safely to minimise any risk this may pose. We have been promoting what I think is called the “Dutch reach”, where you reach across—I will try to give an example from the Dispatch Box—to open the door with the hand which is further from it, because that forces you to look around.

There is another point here. It is called the Dutch reach because it comes from Holland, where a lot of people cycle. To pick up a point made by the noble Lord, Lord Rosser, cycling is good for people not just when they are cycling but when they are driving. If you are a cyclist, you can also become a better driver, because you are more aware of cyclists on the road. We certainly appreciate the point and are looking at it.

I will pick up two further points from the noble Lord, Lord Berkeley. First, on the example he gave, I am not sure I took it down accurately, but my initial reaction was that alcohol is always an aggravating factor. However, I will check Hansard and can perhaps write to him with a specific response on that point. Secondly, on the 2014 review, that was announced and we have been working on it. We published a consultation on driving offences and penalties relating to causing death or serious injury and are now bringing forward proposals for reform of the law, which we committed to in our response to the consultation. My colleagues at the Department for Transport are taking that work forward on the broader issues of road safety.

Finally, the noble Baroness, Lady Randerson, said that she would pick up her point in a later group so, with respect, I or my colleague will respond to it then. My noble friend Lord Attlee asked about an increase in the prison population. The short point here is that people go to prison only when the court cannot impose another offence and they go to prison immediately only when it is sufficiently serious that the sentence cannot be suspended. I hope that gives him some reassurance. I am grateful for the support of the noble Lord, Lord Rosser, on Clause 65. I note his support for the amendments, but for the reasons I have set out, I hope those proposing these amendments will feel able to withdraw them.

[Baroness Jones of Moulsecoomb (GP)]

Before the noble Lord sits down, I point out that he is arguing for the status quo when we have already said that there is no rationale behind it. There is no rationale behind two years or three years. The fact that he thinks it sounds reasonable is really not good enough. It is urgent to get this review together. Which organisations have the Government taken advice from on this, before bringing in these new penalties? Who did they take advice from? It sounds as if they did not take it from people who understand the situation as it is on the roads.

[Lord Wolfson of Tredegar (Con)]

I am afraid that, with respect, the noble Baroness is wrong on both points. There are provisions in the Bill which change the law considerably; there are quite a few in this area. I am certainly not arguing for the status quo but rather for the provisions we have put in the Bill. I have sought to explain why, if we are going to change other parts of our road traffic offences, we need to do so carefully and make sure that there are no unintended consequences. I hoped my explanation of the new test for dangerous driving based on breaches of the Highway Code and the consequences that brings with it was a good example of that.

As to who we have consulted, I assure the noble Baroness that my department and the Department for Transport speak frequently to a range of stakeholders. Perhaps I can write to her with a list, exhaustive or possibly non-exhaustive, of the people we have spoken to.

[Baroness Jones of Moulsecoomb (GP)]

I also point out that when the Minister demonstrated the Dutch reach, he did so from the point of view of a Dutch car rather than an English one. Perhaps he would like to practise that at home.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

The noble Baroness and I are sitting on opposite sides of the House. If I was driving, I would normally open the door with my right hand, so I was turning round to open it. I think my example was right, but I will look at the video tonight and write to the noble Baroness if I was wrong.

[Earl Attlee (Con)]

My Lords, my noble friend has been very helpful, but I am slightly worried that he does not fully appreciate how difficult it is to secure conviction for dangerous driving. On the Dutch reach, could we not include this in the driving test, which would mean that driving instructors would have to teach their students how to do it? I like to think I am an experienced driver and I carefully check my mirror before opening the door. Not doing so is an easy mistake for a novice driver to make, but it would be easy to train those drivers to use the Dutch reach.

[Lord Wolfson of Tredegar (Con)]

I am certainly aware of the differences between dangerous driving and careless driving. Dangerous driving is reserved for those instances of driving which fall “far below” the objective standard. The question of whether the Dutch reach should be included in the driving test is a matter for colleagues at the Department for Transport. I will pass that suggestion on; I hope they will get back to my noble friend on that point.

[Lord Berkeley (Lab)]

My Lords, we have had a fascinating debate on these amendments and I have no regrets about tabling them. They came from the group that the noble Baroness, Lady Jones, mentioned—she has also thought about this very carefully. I would like some further information on whether they talk to each other. They will look at what the Minister has said tonight with great care and read the comments from the many other noble Lords and noble and learned Lords who have spoken. It has been fascinating to hear the different views.

One thing that we need to focus on is the need for safety. The Dutch reach is just one example. I have cycled in Holland quite often; motorists there tend to be much more careful when opening doors, but so are cyclists. In Holland, you do not get the kind of aggressive, Lycra-clad people who so many motorists in this country dislike. However, that is no excuse for causing any danger to them.

What also follows from the Minister’s comments is that there needs to a reflection on getting people to think before they offend, because a lot of people do not, and when they offend say, “Oh, it was a mistake,” or whatever. People need to be responsible for their actions.

Thirdly, there is a wide lack of enforcement, which noble Lords have alluded to, covering motoring, cycling and occasionally walking. Some of my amendments reflect the feelings of people at the vulnerable end of the spectrum that there is a lack of enforcement, and they would like to see things tightened up and balanced.

Lastly, I am concerned, and have been for many years, about how the Minister’s department and the Department for Transport work together, or occasionally possibly do not. I have no evidence that they have not worked together on this matter, but it would be helpful to hold discussions with both departments before Report. I see that the Minister does not like my amendments. We do not like some of his. We are a long way apart, but it would be helpful to try to move together. On that basis, I beg leave to withdraw my amendment.

--- Later in debate ---

[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.

[Lord Wolfson of Tredegar (Con)]

My Lords, the noble and learned Lord, Lord Hope, objects to Clause 66 standing part of the Bill and has tabled Amendment 155 in its place. We have had a very interesting and more wide-ranging debate than we perhaps anticipated when the amendment was put down. Thanks to the noble and learned Lord, Lord Falconer of Thoroton, we have got on to gross negligence. In the time available, it reminded me that it was Lord Cranworth in Wilson v Brett, back in 1843, who said that gross negligence is actually only

“negligence with a vituperative epithet”

attached. That is a little legal chestnut about what gross negligence actually is—in the civil context, I accept.

We need to focus on the fact that we are looking at driving offences, and I will come back later to whether it was a valid comparison put forward by the noble Lord, Lord Thomas of Gresford. The amendment we are dealing with here is perhaps the reverse of the approach taken in the earlier group to Amendment 152. Some of the speeches made in that context, such as that made by the noble and learned Lord, Lord Judge, are also applicable here. With Amendment 155, the noble and learned Lord, Lord Hope, hopes to add additional requirements, thereby raising the threshold for the new proposed offence of causing serious injury by careless driving.

As I said on the previous group, we are back to the issue of relatively low-culpability offences that can attract custodial sentences because the consequences can be catastrophic. Of course, I hear the point made by the noble and learned Lord, Lord Hope—it was a sort of “There but for the grace of God go I” point, if I can summarise it in that way—but, as I have said, there is a balance to be struck between the culpability of the driver and the harm that they cause. The Government believe that the current position—whereby a driver who by careless driving has caused serious injury, including perhaps very serious or life-changing injuries, may only be fined—is wrong. That is why we have created this new offence and why we believe it should be incorporated in the Bill.

I respectfully agree with the point made by the noble Lord, Lord Beith, that we have to have sight of, and due regard to, the consequences of the driving. If I may, I will come back a little later to the other point the noble Lord made, about whether prison is the only way to respond to that.

Having said that, we recognise that the standard of driving required for this offence is relatively low. Careless driving can sometimes amount to no more than a short period of inattention—we had the example of the wasp on the back seat—but we do not agree with the noble and learned Lord that we need to add a requirement explaining what we mean by “causing serious injury”, or that the definition should provide that the notional “careful and competent driver” would know that their driving was likely to cause serious injury. I am grateful for the support—at least on this amendment—of the Benches opposite and of the noble Lord, Lord Ponsonby. He also asked whether prison is the right response, and I will come back to that too.

I make three substantive points in response to the proposed amendment and the clause stand part proposal. First—I will make this point relatively softly, because I think the noble and learned Lord, realistically, if I may say, accepted that there may be drafting issues with the amendment and the scope of it—it would create inconsistencies in the law and that is because this additional test would apply only to this new offence of causing serious injury by careless driving and does not, for example, apply to the offence of causing serious injury by disqualified driving, where it might be argued that the level of culpability is even lower, because there is nothing actually wrong with the driving there at all. I will come back to that in another context.

--- Later in debate ---

[Lord Pannick (CB)]

With his enormous experience of various areas of the law, can the Minister think of any example of where a sentencing court has decided that it is appropriate to send someone to prison, whether in a health or safety context or in any other context, merely because of carelessness? I ask this out of genuine innocence and ignorance.

[Lord Wolfson of Tredegar (Con)]

I wonder whether health and safety is not, in fact, an example. This is not my area of the law, and I am reluctant to give examples from the Dispatch Box, but I think we have to balance the degree of culpability with the consequences. As the noble Lord, Lord Beith, said, and as the responses to the consultation showed, it is very difficult to look in the eye the family of somebody who has been killed through careless driving, where the standard has fallen below that of a competent driver—not far below; that is dangerous—and say that the most we can do is fine the driver.

[Lord Pannick (CB)]

I understand the Minister’s argument. My question is whether there are any actual, practical examples of people being given a prison term because of carelessness. Maybe the Minister does not know. I entirely understand that. I would be grateful if he could write to me with an answer.

[Lord Wolfson of Tredegar (Con)]

Of course, and I will write to the noble Lord with an answer. I just want to be clear what exam question he is setting me. I assume that he is excluding recklessness. He is putting that in a separate box from mere carelessness.

[Lord Pannick (CB)]

I am considering the proposed offence of carelessness. To be clear, my question is whether there are practical examples of sentencing courts sending people to prison for acts of carelessness. Maybe the noble and learned Lords, Lord Judge and Lord Hope, know the answer. I do not. I suggest it may be relevant.

[Lord Judge (CB)]

I would much rather the Minister answered that question.

[Lord Wolfson of Tredegar (Con)]

The noble and learned Lord, Lord Judge, is very kind. I was going to say that, because I am standing up, I will spare the blushes of the noble and learned Lords, so that they do not have to get up. We will look at the exam question from the noble Lord, Lord Pannick. We have to be careful with our terms. It may come back to the point that I made to the noble Lord, Lord Thomas: we must be careful not to confuse “careless”, as in careless driving, with negligence. It is not necessarily the same concept.

I think I was about to sit down and allow—

[Baroness Randerson (LD)]

I simply wanted to add that, when the Minister writes to us, perhaps he could give due consideration to the word “inconsiderate”. One could, unusually, be sent to prison for it.

[Lord Wolfson of Tredegar (Con)]

I am happy to deal with that in the letter.

[Earl Attlee (Con)]

My Lords, on a couple of occasions, my noble friend the Minister has said that the only disposal available to the courts is a fine. Surely, disqualification is available? For most of us, that would be a very severe penalty.

[Lord Wolfson of Tredegar (Con)]

I accept that it may be a severe penalty. It depends who you are dealing with, and the circumstances. There are other factors which the courts have to bear in mind when considering the particular effects of disqualification on a particular driver.

[Lord Hope of Craighead (CB)]

I hope the Minister has sat down, because I thought it was time for me to wind up. I am very grateful to all noble Lords who have contributed to this debate.

I hope the Minister will appreciate—I think he does—that my Amendment 155 is simply an attempt. I said that it was not cleverly drafted, and he has made it clear that it has problems attached to it. The essence of my intervention is on Clause 66 and imprisonment. Disqualification is fair enough. I can see that taking people off the road meets almost every situation. The same is true with fines. It is quite remarkable that there are no other non-custodial penalties. What about other orders, such as retraining, community service, or something of that kind? They are not mentioned here. As the noble Lord, Lord Beith, pointed out, the emphasis on imprisonment as the alternative is endemic in the Government’s approach. It is seriously wrong in this situation.

Two phrases came up in the course of the discussion. The noble Lord, Lord Ponsonby, said that only in an “exceptional case” would a custodial sentence be thought appropriate; I understand that and entirely follow it, of course. The Minister said that he contemplated a “serious, life-changing injury” where he might find it difficult to look into the eye of the victim and say, “We cannot equate it to the sort of sentence that involves imprisonment. We cannot provide a custodial sentence to make up for the devastating consequences of the injury.”

The problem is that, as it stands, the clause is completely open-ended. There is absolutely no qualification to narrow down the situation described by both noble Lords. That is what I was trying to do with my Amendment 155, and is part of my complaint. If you introduce sentences of imprisonment, you really have to think about whether the nature of the offence or the circumstances that give rise to that kind of penalty should be more carefully defined. Otherwise, we are at the mercy of magistrates, who vary and may misunderstand the situation.

Of course, as I mentioned in my earlier speech, the mere threat of imprisonment is a devastating situation. I go back to example given by the noble and learned Lord, Lord Judge, of the mother in the car. Her children will ask, “Mummy, does that mean you’ll have to go to prison?” The family must live with the possibility of imprisonment and all its consequences until, eventually, the moment arises when the sentence is pronounced. Even when there is no imprisonment, the fact that this hovers over a family in that situation is devastating enough.

I hope that the Minister will think more carefully. Perhaps the noble Lord, Lord Ponsonby, will also think more carefully about his party’s approach to this problem, because there is more to it than was thought at first sight. I welcome the suggestion of ongoing discussions; I hope that, with the noble Baroness, Lady Randerson, we will be able to have a discussion with the Minister to see whether some attempt can be made to qualify the open-ended nature of this offence to make it a little less devastating.

For the time being, I beg leave to withdraw the amendment.

Police, Crime, Sentencing and Courts Bill

Lord Wolfson of Tredegar Excerpts

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

Let me add just one other point about the so-called scrutiny that is now going on: there is not one official in the Box to provide assistance to the Minister. I have no complaint about that, but it is in my experience unprecedented.

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

Just for the record, and because the officials have worked extremely hard, I have a WhatsApp group with them. In fact, I have been doing all this work without officials there. They are on the ball; they are online; they are providing assistance.

[Lord Falconer of Thoroton (Lab)]

I am very glad to hear that. It is the first time in my experience—and I am not complaining, because the officials have worked incredibly hard on this—that the Box is entirely without officials.

To go back to the debate about delegated powers, this is what the Delegated Powers Committee said in general about this:

“We are particularly concerned that the Bill would … allow Ministers—and even a non-statutory body—to influence the exercise of new police powers (including in relation to unauthorised traveller encampments and stop and search) through ‘guidance’ that is not subject to Parliamentary scrutiny; … leave to regulations key aspects of new police powers—to restrict protest and to extract confidential information from electronic devices—that should instead be on the face of the Bill; and …allow the imposition of statutory duties via the novel concept of ‘strategy’ documents that need not even be published … We are disappointed that the inclusion of these types of delegations of power—on flimsy grounds—suggests that the Government have failed when preparing this Bill to give serious consideration to recommendations that we have made in recent reports on other Bills.”


In relation to this group of amendments, the committee makes complaint about three sets of delegations. The first is in relation to what could be suitable for community cautions. As I indicated, community cautions are for less serious offences. The Bill provides that they cannot be given for the most serious, indictable-only offences, but it gives the Secretary of State power to determine by affirmative procedure regulations the other offences for which they cannot be given.

The Government put forward a memorandum to justify this approach which said as follows:

“The list of offences which may not be suitable for”—


a community caution—

“is likely to change regularly”

and

“will be subject to continual updating and changing which makes it more suitable for secondary legislation”.

The Delegated Powers Committee report states:

“The Memorandum acknowledges that excluding offences from a community caution disposal ‘will have a significant impact on offenders, victims and the public’. It states that the affirmative procedure ‘is considered appropriate as it enables Parliament to debate the details of the restrictions [on community cautions]’.”


The Delegated Powers Committee report says that the Government are relying on a comparison with Section 130 of the Sexual Offences Act 2003 and then establishes, clearly rightly, that comparison with that Act is misguided and wrong. It says that the Government should follow the 2003 Act, but accurately and not inaccurately. What the Sexual Offences Act 2003 does is put in the Bill the excluded offences but gives power for them to be amended from time to time. Our amendments would follow the Delegated Powers Committee’s recommendations. I hope that the Government will feel able to accept that. If the noble Lord could indicate that, it would shorten that bit of it—sadly not.

The next group of problems is the conditions that are attached to a caution. A diversionary caution or a community caution must have one or more conditions attached to it. These can include requirements to carry out unpaid work, to attend a specified place for a specified purpose, and to pay a financial penalty. The complaint that the Delegated Powers Committee makes about this is that you need only the affirmative procedure where you are increasing the penalties but not when you are decreasing them.

The Delegated Powers Committee report says:

“We consider that the Government’s justification for its approach”—


applying only when penalties are increasing and not when they are decreasing—

“is flawed because it focusses solely on the impact of increases or decreases on the rights of offenders and on operational resources and fails to take into account the significant effect that decreases are capable of having on the way in which the policy works—and that making the new cautions less onerous forms of disposal may be something about which stakeholders (including victims of crime) and members of both Houses may have legitimate concerns.”

Again, we agree with that. The committee continues at paragraph 75:

“Accordingly, we consider that both increases and decreases in the maximum number of hours of unpaid work or attendance, or the maximum financial penalty, that may be attached to a diversionary caution or a community caution merit the same level of scrutiny”.


That is simply to quote what the Delegated Powers Committee says.

The final group relates to Clause 129 and Schedule 13, which gives the courts power

“to review community and suspended sentence orders, and … to commit an offender to custody for breach of”

such orders. The memorandum that the Government presented to the committee says that

“the aim… is to improve offender compliance with community orders and suspended sentence orders and to reduce reoffending. This is achieved through a multi-agency approach with links to wider support services, one element of which is providing for close oversight by a court of particular sentences being served in the community”.

The intention is to pilot for an initial 18-month period, and that may be applied to different cohorts throughout the country.

The committee report points out:

“The Secretary of State is given power to specify, by negative procedure … categories of community orders and suspended sentence orders that qualify for the review process”—


and it sets out certain things they can take into account in relation to it. The report continues:

“Where regulations specify a category for the first time, there must be an initial pilot period of 18 months … Both regulations that specify a category for the purposes of a pilot … are subject to the negative procedure … The Government’s justification for this is that ‘the principle of the provisions is made clear on the face of the legislation, and the power is limited by the legislation such that it may only be used to apply the provisions to different courts and cohorts of offenders … These matters are administrative in nature’.”


That is what the Government said in their memorandum.

The Delegated Powers Committee disagreed with that, saying that

“the categories of persons and the offences to which the review process will apply go to the heart of the underlying policy. The power gives the Secretary of State maximum discretion … but with minimal scrutiny … We therefore consider that regulations that provide for a category of community orders or suspended sentence orders to be subject to the review process on an indefinite basis should be subject to the affirmative procedure.”

That is what our third set of amendments does in relation to that.

I apologise for taking so long to go through this, but these are important issues.

[Lord Paddick (LD)]

My Lords, I agree with the noble and learned Lord about the importance of this part of the Bill. Although the noble and learned Lord has just apologised for the length of his opening remarks on this group, I must warn the Committee that that was nothing compared with my opening remarks on the next group, if the Government wish to go there this evening.

The noble and learned Lord, Lord Falconer of Thoroton, is right to demand that the list of excluded offences for which the police cannot give a community caution is in the Bill. This is yet another example of why this Bill is a shell, lacking in sufficient detail for noble Lords to give their consent to it. The Delegated Powers Committee agrees, as the noble and learned Lord has said.

He is also right that any changes to the maximum number of hours of unpaid work or attendance, or the maximum financial penalty that may be attached to a diversionary or community caution, should at least be subject to the affirmative resolution. But as the noble and learned Lord has said on previous groups, the House still has no ability to amend such an order. I will have more to say on that issue in a later group. Again, the Delegated Powers Committee agrees, as the noble and learned Lord has said.

Amendment 214B is about community orders and suspended sentence orders, and has, as far as I understand it, nothing to do with police cautions—I look for reassurance. I have no idea why it is in this group of amendments, other than that it is also covered by the Delegated Powers Committee’s report. I have no doubt that the noble and learned Lord is absolutely right about that as well, and the Delegated Power Committee agrees.

We support these amendments, mostly because they are right, and, in the case of Amendment 214B, because the noble and learned Lord is usually right.

[Lord Wolfson of Tredegar (Con)]

My Lords, I recognise that this group of amendments in the name of the noble and learned Lord, Lord Falconer of Thoroton, has come about because of recommendations from the Delegated Powers and Regulatory Reform Committee in its sixth report of the Session. It is a pleasure to discuss this matter, even at this hour. As to timing issues, I am sure the noble and learned Lord knows better than me with whom to take that matter up; I am not sure I am the correct post box for that.

I can assure the Committee that, even as the noble and learned Lord was speaking, I received a WhatsApp—I am not waiving privilege on all my WhatsApp messages—from the Bill team: “To reassure, we are here.” The team cannot answer back, but I can. I regret the way that the team’s their work ethic was impugned, unintentionally, I am sure.

[Lord Falconer of Thoroton (Lab)]

I made it absolutely clear that I was not for one moment impugning the Bill team’s work ethic. I was saying, quite legitimately, that they are not here because it is so late at night. My learned friend the Minister makes a poor point in suggesting that I was impugning them. I have nothing but the greatest admiration for that Bill team, and he should not try to distract attention from the problems of debating this at this time of night with a remark like that.

[Lord Wolfson of Tredegar]

It has nothing to do with the hour. On every Bill I have done, I have had the Bill team on WhatsApp, whether it was the Domestic Abuse Bill at 3 pm or this Bill at 11.29 pm. The fact they are on WhatsApp and I deal with them remotely has nothing to do with the hour.

[Lord Paddick (LD)]

If I can adopt a previous role that I had as a police officer and come between the two parties to try to assist, I noticed that earlier this afternoon when the Minister was leading on a group of amendments, there was nobody in the Box. I assumed that that must have been because the officials were working remotely. I have to say that on this occasion I agree with the Minister. Even at—I do not know what time it was, perhaps 4 pm this afternoon—there was nobody in the Box when it was an MoJ issue.

[Lord Wolfson of Tredegar (Con)]

We can move on. We do not need to raise the temperature at 11.30 pm. We have other things to argue about.

Let us get to the substance of this. The committee proposed a number of changes relating to the cautions and problem-solving courts measures in the Bill, as elaborated by the noble and learned Lord and the noble Lord, Lord Paddick. I shall make the central point that I want to make, because it goes to all the points that have been put down. I can assure the Committee, and in particular the noble and learned Lord, that the Government are looking at all the committee’s recommendations, which underpin these amendments, as part of our wider response to the committee, and we will revert to it in due course. I therefore hope that as time goes on, if I can put it that way, these issues will be highlighted, and I hope resolved to the noble and learned Lord’s satisfaction, but, if not, we can continue to discuss them.

I shall highlight just one matter, because I want to leave time for the noble Lord, Lord Paddick, to give us his full oration on the next group, if we have time for it. On Amendment 169D, on excluded offences in respect of community cautions, the committee, as the noble and learned Lord explained, recommended that these offences are listed in the Bill rather than set out in regulations. As he explained, regulations would then be made where further amendments became necessary.

With respect to the committee, we maintain the position that the offences that are to be excluded for the purposes of community cautions are to be made by regulations. We point out that this approach of using regulations to identify excluded offences mirrors the approach taken in the Criminal Justice and Courts Act 2015, which sets out that the simple caution, if I can call it that, may not be used in respect to offences specified by order made by the Secretary of State by secondary legislation. Just as there, so also here we believe that secondary legislation is the appropriate place for setting out the list of excluded offences, as the level of detail required may not be appropriate or suitable for the Bill. We suggest that that approach also allows sufficient time for essential engagement with stakeholders to identify those offences and to enable future changes to be incorporated without primary legislation.

I point out that the secondary legislation that we are talking about here is subject to the affirmative procedure, so the transparency that comes with that procedure will be maintained. I suggest that it would be a little bit clumsy and rare to use primary legislation for what has to be a fairly flexible approach to listing offences that should not be cautioned. We will of course discuss this carefully with stakeholders. The aim will be to bring an SI to Parliament that will be acceptable. I apprehend that I have not responded to the underlying point made by the noble and learned Lord, because I said that we will respond to the committee, but I hope he understands the thrust of my response and that for present purposes he is able to withdraw the amendment.

[Lord Falconer of Thoroton (Lab)]

First, in the light of the evidence given by the noble Lord, Lord Paddick, I unreservedly withdraw the suggestion that we are in any way disadvantaged by the officials not being in the Box. I thank the noble Lord, Lord Paddick, for bringing that to our attention.

What a disappointing response that was on the substance. First, I am grateful to the noble Lord, Lord Wolfson, for saying that there might be something more coming, although he did not indicate what that might be. We have had the report since September. Why has it taken so long to get to this? Secondly, in relation to the point which the noble Lord, Lord Wolfson, did address—about the offences that would be excluded from community cautions—the Delegated Powers Committee is saying, “Put your initial cut in the Bill”.

The noble Lord, Lord Wolfson, gave no reason why that was not to be done. He referred to the 2015 Act to which the Government had not referred when they put their memorandum to the Committee. I have not had a chance to look at the 2015 Act. It has only been mentioned now. Changing defence, as the noble Lord is doing, is always an indication of shambles on the part of the Government. What is the reason for not giving the Commons and the Lords the opportunity to debate the initial cut? It does not make the Bill too cluttered. It would not add much more than half a page. It is a ridiculous defence.

I hope that the Minister will have the time to think about it for when he comes back with the Ministry of Justice’s conclusions on this absolutely damning Delegated Powers Committee report. I beg leave to withdraw my amendment.

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[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?

[Lord Wolfson of Tredegar (Con)]

My Lords, the amendments we are talking to cover a little area and I will take them in turn if I may. I start with Amendments 170, 171 and 190. They remove the authority of a constable or investigating officer to be able to give a diversionary or community caution and in turn propose a set of preconditions that require that a prosecution authority be satisfied of the suitability, capability and training of a person before they are designated to issue a diversionary or community caution.

The position at the moment is that cautioning is mostly but not, it is fair to say, exclusively carried out by police constables. Cautioning by police dates back nearly 100 years and the police have become experienced in the application and use of cautions. At the moment, there are statutory restrictions around the use of simple cautions by the police and an existing statutory framework for their use of conditional cautions.

The framework provides a role for the DPP to authorise the use of cautions in particular circumstances. Police and prosecutors share responsibility for dealing with out of court disposals. The noble Lord, Lord Paddick, already knows this, but where police decide that an indictable-only offence should be dealt with by means of an out of court disposal, the case must be referred to a prosecutor to determine whether there is sufficient evidence for a realistic prospect of conviction and that it is in the public interest to deal with the case in this way.

These clauses do not change the approach set out in the director’s guidance and we believe this provides a necessary safeguard to the use of cautions for more serious offences. We believe that the police should be empowered as professional decision-makers, while being given clear statutory guidance as to the use of cautions. The question of the adequacy of training to fulfil those functions, which underpins these amendments, is really one for the policing authorities.

In that regard, coming to the point made by the noble and learned Lord, Lord Falconer of Thoroton, we believe that the code of practice is the appropriate place to set out any safeguards, checks and balances that should be in place before any caution under the new two-tier framework is given.

[Lord Falconer of Thoroton (Lab)]

What is the method of scrutiny of that code of practice by Parliament?

[Lord Wolfson of Tredegar (Con)]

I will come to that point. I will try to answer that question, but if I do not, I know the noble and learned Lord will remind me. However, I think I will come to it. I was just making the point that there will be safeguards, checks and balances under the new two-tier framework, an example of which may be a review by an officer of a higher rank before a decision to issue a caution is made.

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[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.

[Lord Paddick (LD)]

My Lords, it is completely unacceptable that the noble Lord has said on numerous occasions that, because of the hour, he is not going to go into detail in answering the issues that I have raised. We either scrutinise this Bill properly or we do not. I do not care what time of night it is; we will scrutinise this Bill effectively. That is the first point to make.

[Lord Wolfson of Tredegar (Con)]

To be clear, the only reason I made that point is because I have a very long answer—I am happy to read it—explaining the different ways particular police forces have responded to the point. Apart from that, I gave exactly the answer I would have done had it been four o’clock in the afternoon. I assure the noble Lord that I have not deleted one sentence from my notes on the answer.

Police, Crime, Sentencing and Courts Bill

Lord Wolfson of Tredegar Excerpts

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

[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.

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

My Lords, this group of amendments, proposed by the noble Lord, Lord Brooke of Alverthorpe, seeks to require that reasonable steps be taken to obtain and take into account details of any financial costs incurred by the victim as a result of the offence when deciding on the conditions to attach to a caution and when deciding on the amount of the financial penalty.

I will begin with the particular instance that the noble Lord set out. Both he and the noble Lord, Lord Paddick, used the word “distressing” and I agree with that entirely. I would go further and say that it was appalling; it is a horrific set of circumstances and I am sure everyone in the Committee would share that approach. I extend deepest sympathies to Mr McAra. I am very pleased to hear that his local MP has been helpful and supportive; I was also pleased to hear that she is a Conservative, although one of the glories of our parliamentary system is that all MPs from all parties extend that sort of support to their constituents. It is very good to hear that the system is working.

I also tend to agree that this would be unlikely to be a caution case. I am hesitant to say any more, because prosecuting decisions are independent and a matter for the CPS. I defer in this regard to the experience of the noble Lord, Lord Paddick, but it sounds to me as though this would be more than a caution case.

The Bill states that both the diversionary and community cautions must have conditions attached to them. Those may include rehabilitation and reparation conditions, financial penalty conditions or conditions related to certain foreign offenders. I assure the noble Lord, Lord Brooke, that I give this amendment and the points that he made a sympathetic hearing, as he wanted, but I will explain why as a matter of principle we cannot accept it. This is not because we disagree with the point that underlies it but for the reasons which I will set out. The starting point is that Clauses 79 and 88 already provide for the authorised person to make reasonable efforts to obtain the views of any victim of the offence and take those views into account when deciding on the conditions to be attached to a caution. This includes obtaining their views on financial costs incurred and any decisions on seeking compensation.

Under the current cautions regime, the code of practice for conditional cautions makes clear provision for this in specifying that financial compensation may be paid to a victim. In addition, where the offending has resulted in damage to community property—I appreciate that in the case we have discussed the damage was to personal property—reparation may also take the form of repairing the damage caused, reparative activity within the community more generally or a payment to a local charitable or community fund, which might be more helpful if an offender does not have the financial means to pay. The current code also states that compensation for the victim should be prioritised ahead of other costs or financial penalties.

As is the case with the current code of practice for conditional cautions, the code of practice for the new diversionary and community cautions is the appropriate place to set out further detail on how the conditions attached to a caution may be decided. Again, that will include obtaining and considering any financial losses and requests for compensation. The code will be drawn up under the delegated powers in the legislation. We will consult widely, as the noble Lord would expect, and it will be laid under the affirmative procedure.

Consulting victims goes beyond just cautions. It is a key principle of the victims’ code, point 6.7 of which says:

“Where the police or the Crown Prosecution Service are considering an out of court disposal you have the Right”—


that is, the victim has the right—

“to be asked for your views and to have these views taken into account when a decision is made.”

As I have sought to explain, that will encompass the financial circumstances as well.

Finally, without wishing to be too particular on the drafting but just for the record, I point out that, although the parts of Amendments 177 and 186 relating to Clauses 81 and 90 share the same underlying intention, those clauses relate to financial penalties paid to a court, which are punitive and are not the same as the rehabilitative or reparative conditions, which I know are really the focus of the noble Lord’s amendment.

--- Later in debate ---

[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.

[Lord Paddick (LD)]

My Lords, I thank the Minister for saying something. The whole point of not allowing it to be in regulations is that it is an important question of principle that once a crime gets to a certain level requiring a certain punishment, it should be for the courts to administer that punishment, in the same way that if a magistrate decides that the punishment they are able to give is not sufficient, they have to refer it to a higher court. These are the people with the experience, training and background properly to assess both the individual and the circumstances, and to apply the penalty. Therefore, it should be dealt with in primary legislation.

This should not be about providing maximum flexibility for operational partners. It should be about consistency and certainty, and citizens knowing that above a certain level of unpaid work, attendance at a training course or a fine imposed by the police, they cannot go without referring the matter to the courts. That is the whole point. I completely accept that the Minister has explained why it is in regulations and not in the Bill. However, he has not addressed at all the argument that it should not be that flexible.

Why is the accused’s ability to pay important? I was talking to my noble friend Lady Randerson about this amendment earlier today; like the noble Lord, Lord Ponsonby, she is an experienced magistrate, now retired. She said, “It is so important to take into account the accused’s ability to pay, because if you impose a fine, say, of £200 on somebody who has little or no income, it will almost guarantee that they commit a crime in order to get the £200 to pay the fine.” That is why that seemingly innocuous addition, which should be in the Bill, is in fact absolutely important. In the light of the Minister failing to engage with the heart of the amendments, we will return to this issue on Report, but in the meantime, I beg leave to withdraw the amendment.

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[Baroness Hamwee (LD)]

My Lords, does the Minister think that the Bill is so short that it would have spoiled it if the new provisions had been set out in full?

[Lord Wolfson of Tredegar (Con)]

My Lords, taking that last point first, one of the glories of our system is that the drafting is done by parliamentary counsel, and I will not criticise the way it has been done. However, I agree with the underlying point made by the noble Lord, Lord Paddick, that legislation ought to be—

[Viscount Hailsham (Con)]

Comprehensive.

[Lord Wolfson of Tredegar (Con)]

I was going to say “comprehensible” but that is a pretty high test— perhaps “as clear as good legislation can be”. I have to leave at least some space for my former colleagues at the Bar to have a career; if we make it too precise, we will do people out of a job. However, there is a serious point here, and I agree with the noble Lord, Lord Paddick, that legislation should be as clear as possible. I will set out what the words are seeking to do, and if it is thought that there is a better way of putting them to get to the same result, obviously, I will be happy to hear it. However, let me explain what they seek to do.

Clause 86 sets out the provisions of PACE and the modifications required to them that will apply upon arrest for failure to comply with any condition attached to a diversionary caution. The purpose of the clause is to ensure that the diversionary caution operates effectively within the existing framework of police powers; it mirrors the approach taken in the Criminal Justice Act 2003, which gives the police powers of arrest for failure to comply with the existing conditional caution.

The subsection of this clause ensures that someone arrested and detained by the police is subject to the same treatment as any detained person, and periodic reviews of their detention are carried out. Obviously, that is important. The same subsection also contains modifications to put specific matters in the Bill: the power to detain those who are unfit to be dealt with at the time of arrest; the power of arrest for detainees bailed for any breach—that is, non-compliance; and the power to search a detainee in police custody following arrest.

The modifications make specific reference to the diversionary caution. For example, the PACE power to search and examine a detainee to ascertain their identity is modified to ensure that the power will still exist where a detainee has failed to comply with any of the conditions attached to the person’s diversionary caution. Therefore, it provides—I was going to say “clarity” but perhaps that might be pushing the point a little—that these powers apply only to the diversionary caution and not also to the community caution, where there is no power of arrest or prosecution for non-compliance. That is why Clause 86(4) is needed. Without the necessary PACE provisions as modified, the powers for police to deal with breaches of a diversionary caution would be limited and that would undermine the effect of non-compliance with the conditions.

I do not know whether what I have said has reassured the noble Lord, Lord Paddick, that the clause is properly focused. I hope that I have explained what it is trying to do. I am not being flippant and I do appreciate that legislation needs to be as clear as possible and that it is important that people understand what it encompasses. However, when one is legislating against the background of other legislation, it can be quite difficult to do it other than by cross-references back. If there is a better way to achieve the same result without adding pages and pages, I should be very happy to hear it, but I hope that I have explained what the clause is focused on and why it is drafted in the way it is. I therefore invite the noble Lord to withdraw the amendment. However, I am happy to discuss this matter between us if there is another way of doing it.

[Lord Paddick (LD)]

I am very grateful to the Minister. Perhaps I may gently suggest that if something akin to what the noble Lord said was contained even in the Explanatory Notes explaining that part of the Bill, we would not have to spend time in Committee trying to understand what it was about. I know that my noble friend Lady Hamwee and I have looked everywhere possible to try and decipher what that meant—to no avail. It may be that to parliamentary draftspeople it is as clear as day—but for us lesser mortals it is not. I beg leave to withdraw the amendment.

--- Later in debate ---

I support the overall objective of having an effective caution regime, but I share the scepticism of the noble Lord, Lord Paddick, about the reasons for putting this regime in place. One should not be misled into thinking that any particular regime would immediately have better results than previous regimes or the current regime.

[Lord Wolfson of Tredegar (Con)]

My Lords, I hope it is in order to pick up one point that was put to me at the end of the last group and say a word on it. I hope the Committee will forgive me. It goes to all groups, in some ways, because it is about how legislation is put online. Legislation.gov.uk has a facility to look at the original texts and unscramble the later amendments, so to speak. A point that occurred as the noble Baroness, Lady Hamwee, was speaking was whether one could put in hyperlinks to take you through different pieces of legislation. I am happy to look into that, but I now turn to this amendment.

My noble friend Lord Framlingham asked what a diversionary caution is. To try to sum up a large part of the Bill in about three sentences, I say that there is going to be a lower-tier disposal called a community caution and an upper-tier disposal called a diversionary caution. Conditions must be attached to both, aimed at one of three objectives—rehabilitation, reparation or punishment. Restrictive conditions can be set, where they contribute to reparation or rehabilitation. In that regard, there is a similarity to the existing conditional caution regime. I hope that answers the question.

I now turn to the substance of the amendment in the name of the right reverend Prelate the Bishop of Gloucester—moved by the right reverend Prelate the Bishop of Durham—alongside the noble and learned Lord, Lord Thomas of Cwmgiedd, and the noble Lord, Lord Beith. It goes to the primary objective of the new two-tier statutory framework, which I have just explained, to provide, as a requirement of the community caution, meaningful court conditions to help an offender stop offending.

I am grateful for the broad support, as a matter of principle, of the right reverend Prelate for the aims of the Bill on out-of-court disposals. I respectfully agree with the point made by the noble and learned Lord on the importance of the caution regime in the criminal justice system. I also agree with the point made by the noble Lord, Lord Ponsonby, that cautions must be carefully considered to avoid the syndrome of repeated interventions.

While the amendment is obviously well intentioned, the Bill already makes provision for the purpose that underpins it in Clause 80 on diversionary cautions and Clause 89 on community cautions. The Bill asks the relevant person to focus on the position of the offender. Of course we all agree that one has to look at the position of the victim, but I agree with the noble Lord, Lord Beith, that one must also look at the offender. The Bill already does that.

While I agree with the broad thrust of the purpose of the amendment, I suggest that it is unnecessary. That is because, aside from the punitive option of a financial penalty, the conditions of both the diversionary and the community caution must be aimed at rehabilitation or reparation, thereby addressing the underlying causes of the offending. Importantly, the cautions enable referrals to support services where relevant as conditions of the disposal. Referrals at this pretty early stage of the criminal justice system could include referrals to relevant intervention services such as substance misuse services, mental health treatment providers or gambling addiction, or restorative justice referrals. All those help to address the underlying causes of offending behaviour and so help to reduce reoffending or the escalation of offending behaviour.

As I have said, a code of practice will accompany the legislation. It will be drawn up in collaboration with stakeholders and subject to a formal public consultation and to an affirmative statutory instrument. I respectfully agree with the noble and learned Lord, Lord Thomas, as he would no doubt expect me to, as to the fundamental importance of the rule of law in this and, indeed, other areas. I wonder whether actually the police are best viewed as being seen as part of the Executive; we could probably have an interesting debate on that. The answer might be that it depends on the purpose for which you are using the principle of the rule of law as to what exactly it would encompass.

To give the noble and learned Lord a bit more information, the way that the code of practice will be put together is that there will be an informal stakeholder engagement exercise with police forces, the National Police Chiefs Council, police and crime commissioners, the CPS and relevant third-sector organisations, which will help with drafting. We will then have a formal public consultation, which will take place next year. Importantly, the power to issue the code and the regulations is contained in the clauses of the Bill, so we will not have the power to do that until the Bill receives Royal Assent and is commenced.

I want to pick up the underlying points made by the noble Lord, Lord Paddick. I hope he will not take it amiss if I do not respond to those. There is a clear conceptual gulf between us, if I may put it that way, as to the purpose of the regime and whether it is soundly based. I set out the Government’s position on that earlier. I am not sure it is helpful if I just repeat those words each time because there is that gulf between us and I am not sure it is going to be bridged. I hope the noble Lord will therefore not take it amiss if I do not respond in detail.

[Lord Paddick (LD)]

It is not a conceptual gulf. It is a question of where the evidence is that cautions with conditions attached are more beneficial than cautions without conditions attached. I can answer that question for the Minister: there is no evidence, because the Government do not collect any. That is coupled with the fact that this House will be asked—this Committee is debating it now—to sign a blank cheque for all this when the detail has not been worked out. There will be public consultation and consultation with stakeholders, but we have no idea what this is going to look like in the end. That is no way for this House to proceed with this legislation.

[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.

Police, Crime, Sentencing and Courts Bill

Lord Wolfson of Tredegar Excerpts

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

[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.

[Baroness Chakrabarti (Lab)]

Does the Minister not agree that good law is about a combination of rules and discretion? I quite understand that he is here to advocate his new scheme and approach, which the Government have considered and think is the way forward, but why not have a little residual discretion for some of the examples that the noble Lord, Lord Paddick, gave? The Minister said that a simple caution is really a bare warning but, occasionally, is not a bare warning better than nothing at all in terms of a police officer, in reality—sometimes underresourced, in difficult times—doing his job in the community?

Why do we have to be so rigid that we make a simple caution—which of course is not ideal and does not have the diversions and other things suggested— impossible to give? In circumstance where there is a student who is annoyingly drunk but has not really harmed anybody—as in the example given—why not allow a bare warning rather than no warning and no action at all?

[Lord Wolfson of Tredegar (Con)]

Without turning this afternoon into a jurisprudential seminar, I certainly agree with the thrust of the point made by the noble Baroness that good law is often a combination of rules and discretion. At the level of generality, I would agree. However, it is not right to say that this is rigid; the conditions that can be applied are extremely flexible.

There are really two parts to the answer. First, within the new cautions regime, there is a great deal of flexibility as to the conditions that can be set out. If the noble Baroness looks at Clause 80 for diversionary cautions—which is mirrored in Clause 89 for community cautions—subsection (4) sets out the restrictive conditions and goes down to the one I mentioned in my response to the noble Lord, Lord Paddick, which is

“not to engage in specified conduct”.

That is, essentially, the lowest form of engagement when no other suitable conditions exist. That really creates a condition where the offender is expected not to commit any further offences. That is a very low level of engagement, and when that is suitable will be a matter for the code of practice.

The second part of the answer is to repeat the point I made earlier that other forms of out of court disposal are still available—I mentioned fixed penalty notices and community resolution—so, with respect, I do not agree that we are putting in place a rigid regime. The conditions are flexible and there are some disposals that are outside the cautions structure, even now.

I do not think I did so before, but I invite the noble Lord to withdraw his amendment.

[Lord Paddick (LD)]

Can the Minister clarify something? I think he said something along the lines that the lowest level of condition is that the offender should not engage in similar activity again. So, if somebody is arrested and cautioned and the police say to them “Don’t do it again”, is that a condition attached to a caution?

[Lord Wolfson of Tredegar (Con)]

As I said a moment ago, this relates to Clause 80(4) and Clause 89(4), if the noble Lord looks at the last condition in each of those subsections. The code of practice, as I said in response to the noble Baroness, Lady Chakrabarti, will make further provision for the circumstances in which that would be appropriate. Importantly, and I think differently from the simple caution, the police would still need to monitor conduct to ensure that someone had not reoffended, but that would be less onerous. This is a good example of where the new structure that we are putting in place preserves the best of the old regime but still has it on a more structured basis, focused on preventing reoffending as well as on the rehabilitation of the offender.

[Baroness Chakrabarti (Lab)]

Forgive me, but I sense an element of unworldliness about this. If it is appropriate in a given case for there to be just words spoken and a warning, and it would be proportionate, do we really need the constable in question to go through the process of the recording and the monitoring?

I say no more on that but, if the Committee will indulge me, I would like to mention that Mr Gareth Dowling, the doorkeeper, is retiring today after some years of service and I hope that the Committee, if not the whole House, will join me in congratulating him and wishing him all the best for the future.

[Noble Lords]

Hear, hear.

[Lord Wolfson of Tredegar (Con)]

May I first deal with the caution points? I do not want to run those two topics together. On cautions, there is a fundamental point here. The simple caution is really what it says on the tin: a simple caution. In circumstances where the officer decides that it is appropriate to give a community caution with the lowest level—the one that we are talking about now—importantly, to get there, the officer or the authorised person still has to go through the process of speaking to the victim, thinking about what other options are available and looking at what other conditions are available. That process is valuable in all cases. That is one of the strengths of the new regime. I accept that that requires more consideration, but you end up with a system which is more robust and suitable and which results in a more proportionate response. Quite separately, I join the noble Baroness in what she said about Mr Dowling.

[Lord Paddick (LD)]

I thank noble Lords who have participated in this short debate and am grateful for the qualified support from the noble Lord, Lord Ponsonby of Shulbrede.

If I heard the Minister right, he referred to public consultation and the proportion of respondents who said that they did not believe that out-of-court disposals reduced offending. Is he really saying that the Government are now legislating on the basis of public opinion rather than on the basis of evidence? There is no evidence that the two-tier system that has been piloted by a third of forces is any more effective, as I have quoted at length and repeatedly—which the Minister ignores. There is no evidence that this will be a better system for reducing offending. With the greatest of respect, just because the Government assert that it will be does not mean that it is.

I am struggling here. If we take the example of somebody who is arrested for being drunk and disorderly and who the police want to caution, they now have to attach conditions. Presumably, the lowest level of condition will be, “You should desist from behaving like this in the future.” Then the Minister says, “But of course the police will have to put measures in place to monitor the accused’s future behaviour.” I am completely at a loss as to what sort of monitoring the Minister has in mind in such circumstances. The more the Committee examines these proposals—perhaps I should say the lack of them, bearing in mind that we will not see whatever is contained in the code of practice until well beyond the Bill receiving Royal Assent—the more the whole thing begins to unravel.

Clearly, I will apologise to the Minister and to the Committee if I have misunderstood the legislation in terms of withdrawing the police’s ability to give fixed penalty notices for disorder. I hope that the Minister will do the same if it turns out that I am right and he is wrong. However, at this stage, I beg leave to withdraw the amendment.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

[Viscount Hailsham (Con)]

My noble friend clearly is right when he says that this is not a mandatory sentence, but does he accept that the purpose of this clause is to ensure that in the generality of cases, a custodial sentence is imposed?

[Lord Wolfson of Tredegar (Con)]

The purpose of a minimum sentence is that unless the threshold is met—we will debate in another group what that threshold should be—the minimum sentence is imposed. There is nothing between us on how it works; there obviously is on whether it is a good idea. I hope that is fair.

[Baroness Chakrabarti (Lab)]

I am sorry to interrupt the Minister but in sentencing law and in the criminal justice system, minimum sentences are currently referred to as “mandatory minimum sentences”, subject to thresholds and exceptions such as exceptional circumstances. That is a very long tradition. As lawyers we must be fair to lay Members of the Committee as well. It is unfair to say that the noble Baroness, Lady Jones, has missed the point. It is very common in the parlance of sentencing law and criminal justice law to refer to minimum sentences as “mandatory minimum sentences”, subject to whatever thresholds and exceptions there are.

[The Lord Bishop of Durham]

That is exactly what it says in the paperwork we have.

[Lord Wolfson of Tredegar (Con)]

The point I am making is very important and we will get to it in another group. I absolutely accept that people use “mandatory sentence” in a common parlance way, but when we get to a later group, we will discuss what the test should be. I will not delay the Committee now, but the figures for when the minimum sentence is not actually imposed are surprising. People using the phrase “mandatory sentence” would be surprised to hear that in a third and sometimes nearly half of cases, the minimum sentence is not given. If “mandatory” does not apply in a third of cases, I question whether it is the appropriate word. Therefore, we must bear in mind that we are dealing with a minimum sentence with a provision, whether that is “exceptional” or some other test. I certainly do not seek to criticise the noble Baroness, Lady Jones, for using the shorthand. I wanted to point out that it is a shorthand which can be misleading when one looks at the facts as to how such sentences are imposed.

[Viscount Hailsham (Con)]

What is the essential difference in my noble friend’s mind between exceptional and particular circumstances? Is not the truth of the matter that he wants the default position to be a custodial sentence, whereas there was greater discretion to the judge when the particular circumstances were what the law was to consider?

[Lord Wolfson of Tredegar (Con)]

As I say, there is a specific amendment on that point, so I will come to this in more detail then, if I may. The question is about when you depart from the minimum sentence. We are dealing here with the scope of the exception—that might be an unfortunate word, because one of the words we are using to qualify the exception is “exceptional”—and whether the exception is in circumstances which are just in the case, which I think is the gist of one of the amendments in a later group, or exceptional circumstances. I absolutely accept that one has a minimum sentence, which we can call the default, with an exception. It is always for the judge to decide, looking at the offence and the offender, whether the test is met. I will come in a moment to the words “exceptional circumstances” in particular.

What we want to do, to underline the point, is to ensure that courts depart from the minimum sentence only in exceptional circumstances. That reflects the seriousness of the offences and the risks posed to others. We believe that will create greater consistency in the statutory provisions on minimum sentences which apply to other offences. This change does not mean—

[Baroness Kingsmill (Lab)]

Is the Minister saying therefore that it will be a mandatory sentence unless there are exceptions?

[Lord Wolfson of Tredegar (Con)]

Unless the exception is met, this is the sentence that will be imposed. I do not want to split hairs with the noble Baroness, but it is not mandatory in that sense. It is a minimum sentence which has to be imposed unless the conditions are met.

[Baroness Kingsmill (Lab)]

It is awfully important in these kinds of cases that we are very clear and precise in our language. There is a difference between minimum and mandatory. I think what the Minister is actually saying is that this is a mandatory sentence unless there is an exception.

[Lord Wolfson of Tredegar (Con)]

It is not a mandatory sentence, because you can impose more. Let us be clear: it is a minimum sentence, which has to be imposed unless the exceptions are met. To take it outside this clause, if you have a minimum sentence of two years unless there is an exception, the first question is: is the exception met? If it is not, you have to give at least two years. You do not have to give two years; you could give two and a half years. I am not sure I am saying anything different. Reference has been made to America. In other jurisdictions, when they say mandatory, it can be mandatory without exceptional circumstances or any other provision. I am not sure we are saying anything different. I think we are all clear about what we mean. I would prefer to use the phrase “a minimum sentence”, which is the phrase used in the Bill, unless the exception applies.

[Baroness Chakrabarti (Lab)]

I am so sorry to elongate this, but it is important. The Minister, sitting in a Government with a massive majority, gets to rewrite the statute book, but he does not get to change terms that are well understood by lawyers and sentencers in this jurisdiction and others. He is proposing a mandatory minimum sentence subject to certain exceptions. The common parlance—perhaps not on the street, but in the profession and on the Bench—is that this is a mandatory minimum sentence. He can argue for it and say that it is good policy, but it is not helpful to the Committee, anyone outside it or anyone reading Hansard for us to suggest that this is something totally different from a mandatory minimum sentence subject to exceptional circumstances.

[Lord Wolfson of Tredegar (Con)]

I am really not sure that we are saying anything different. As I said, we will come in a later group to how many offenders do not get the minimum sentence with some sentences. There must come a point at which so many offenders do not get it that using the word “mandatory” to describe it is itself misleading. I suggest we are better off sticking to the terms used in the Bill, which are both accurate and appropriate.

I underline the point that the change we are proposing does not mean that all 16 and 17 year-olds will receive the minimum sentence. The courts will retain the discretion not to apply the minimum where there are exceptional circumstances which relate to either the offender or the offence and which would justify doing so.

[Viscount Hailsham (Con)]

That is out of the ordinary. It is a high threshold.

[Lord Wolfson of Tredegar]

I will come in a moment to the word “exceptional” as I think that was the point made by the noble Lord, Lord German. I have been a little diverted on the way, but we will get there.

What the courts will therefore do is to continue to take the child’s welfare needs into consideration. I also point out, of course, that the actual minimum sentence for 16 and 17 year-olds, when given, is shorter than that for over-18s when given: four months as opposed to six months. Applying minimum sentences to 16 and 17 year-olds—the older cohort of under-18s—recognises the increased maturity and development of this age group compared with younger children. Any custodial sentence is given as a last resort, but we believe that for older children who commit these particular offences, it should be mandatory for the court to consider carefully whether a custodial sentence is appropriate.

[Lord Beith (LD)]

I wonder if the Minister could be a little clearer. A moment ago he cited figures for the number of cases under existing law in which, apparently, mandatory sentences are not passed because judges took the circumstances into account. When you couple his description of those figures with the phraseology that he is using now about the merits of the Bill, the impression is very clear that the Government are not happy with the judges citing exceptional circumstances in failing to deliver the kind of sentence that the Bill would impose. Am I right to understand that he is, in fact, critical of the number of exceptions that are made at present and wants fewer of these in future?

[Lord Wolfson of Tredegar (Con)]

I am certainly not critical of any particular sentence passed in any particular case. What I do think the figures show is that we need a test that more clearly balances the minimum sentence on the one hand with the exception on the other. We think the test of exceptional circumstances—I know that the noble Lord, Lord German, is waiting patiently—meets that test.

I turn now to Clause 104 and 105, which both relate to children who have committed murder and will therefore receive the mandatory life sentence of detention at Her Majesty’s pleasure. I hear in this regard the words read to us on behalf of the right reverend Prelate the Bishop of Derby. When giving a life sentence, the judge sets a minimum amount of time that must be spent in custody before the offender may be considered for release by the Parole Board. This is known colloquially as the tariff. Judges use starting points to determine that tariff. They can set a minimum term higher or lower than the starting point by taking into account aggravating or mitigating factors. Currently, there is a 12-year starting point for all children who commit murder.

In this Bill, we are replacing the fixed 12-year starting point for all children—what might be called the mandatory starting point—with a range of starting points that take into account the child’s age at the time of the offence and the seriousness of the murder. The age groups are to reflect the different stages of development that a child goes through and that, although both in law are children, a 10 year-old is very different from a child of 17 years and 10 months. The different levels of murder, if I can put it that way, are based on the more nuanced system used for adults, which takes the seriousness of a murder into consideration. Therefore, the twin factors of age and the seriousness of the murder are then brought together. The higher the age and the more serious the murder, the higher the starting point, and the converse is also the case.

This amendment retains a range of starting points for children based on three age groups, but it does not distinguish between the levels of seriousness of a murder. Because murder can vary in seriousness in the criminal sense, we believe it is right that the starting points should reflect this as well. We do not agree that starting points should only be based on the age of the child; they should also reflect the seriousness of the murder. Moreover, the amendment does not address the gap in starting points between older children and adults. A child of 17 years and 10 months is very close to becoming an adult. The amendment would mean that the same category of murder would have a 12-year starting point for a 17 year-old, but a 30-year starting point for an 18 year-old. However, I underline the same point that I made about minimum sentences. The judiciary will continue to take the individual circumstances of a case into consideration and can give a minimum term higher or lower than any given starting point.

Let me address the review amendments. Children who are sentenced to detention at Her Majesty’s Pleasure are eligible to apply for a review of their minimum term. In this Bill, we are placing the minimum term review process in legislation. It allows children who are aged under 18 when sentenced to detention at Her Majesty’s Pleasure to apply for a minimum term review at the halfway point. We are restricting eligibility for further reviews to be available only to those who still aged under 18 at the time of the further review. By contrast, this amendment would allow those sentenced as an adult to apply for a review at the halfway point and continue to apply every two years. It would also allow adults who were sentenced as children, who have already had one review, to continue to apply for a review every two years. This amendment is neither necessary nor in line with case law. That is because, under the measures in the Bill, children who are sentenced to detention at Her Majesty’s Pleasure will continue to be eligible for a review at the halfway point of their minimum term.

That right has developed through case law. It recognises the unique rights of children and the fact that they develop and mature at a faster rate than adults. The review is an important part of confirming that the minimum term remains appropriate or determining if a reduction should be made. However, they should be eligible for a further review only if they are still a child at the time of that further review. This is because, as the right reverend Prelate the Bishop of Durham said on behalf of the right reverend Prelate the Bishop of Derby, children have the greatest capacity to demonstrate the significant changes to maturity and outlook that the review considers. Therefore, the opportunity for multiple reviews would be available only to younger children at the initial time of offending, as they are more likely to be under the age of 18 at the time of any further review.

Those who commit murder as a child but are sentenced as an adult have already had their age and maturity taken into consideration. Adults who commit murder are not entitled to reviews and so this Bill ensures that all offenders who are an adult at the time of sentencing are treated equally. It is important to remember that we are talking about the most serious offence, that of murder. The minimum term set by the judge takes into consideration a child’s age and maturity at the time of the offence and reflects the seriousness of the offence. That minimum period should therefore be served, except in exceptional circumstances.

That brings me to the question of the definition of exceptional circumstances, and I am grateful to the noble Lord, Lord German, for his patience. “Exceptional circumstances” is a phrase used all over the law and the criminal law. It is a matter that judges are well used to interpreting. It is a phrase in plain English. With the greatest respect to the noble Lord, it does not need, or would benefit from, a gloss from the Dispatch Box. The phrase means what it says on the tin. It is for the individual judge in the individual case, having heard the evidence, to decide whether the exception is made out.

[Lord German (LD)]

Can the noble Lord tell me the difference, then, between the current words, which are “particular circumstances”, and those that the Bill is proposing—“exceptional circumstances”? What is the difference between “particular” and “exceptional” to the fraternity of judges and lawyers who do not need it written down because they all understand it? For those of us who are non-lawyers, some definition would be helpful.

[Viscount Hailsham (Con)]

It is a higher bar.

[Lord Wolfson of Tredegar (Con)]

I hear the words, “higher bar”. I do not disagree that “exceptional circumstances” is a stricter test. There is case law on that, although the name of the case has slipped my mind, but I am happy to write to the noble Lord, Lord German. I see that the noble and learned Lord, Lord Judge, who may remember, is here. I am sorry to give him exam questions. “Exceptional” is a word that has been passed and interpreted by the courts at a high level. It is proper to leave it to them to decide what “exceptional circumstances” means. However, I will write to the noble Lord with the case law, once my memory comes back to me.

--- Later in debate ---

So, while I agree with the points that have been made, I put forward that particular exception where I agree with the appropriateness of that minimum sentence. Of course I agree with giving judges and magistrates discretion, so they are not tied down by minimum sentences, but I wanted to give that example of where I think a minimum sentence is appropriate. Having said that, I support the amendments put forward by the noble Lord, Lord Marks.

[Lord Wolfson of Tredegar (Con)]

My Lords, these amendments seek to ensure that the courts depart from imposing a minimum sentence, to use the words of the amendment, only where it would be

“contrary to the interests of justice”

to do so, “having regard”—and then it refers to the particular requirements in the Bill on the offender and on offending. “Interests of justice” is not defined. I do not complain about that, because the phrase is used elsewhere and the courts know what it means. I do not want to go over old ground.

It is already the case that a court has the discretion not to impose the minimum sentence where there are particular circumstances relating to the offender, the nature of the offence or, in the case of repeat offending, the nature of the previous offence that would make it unjust to do so. I underline the point that whether that exception, however phrased, is met is for the judge to decide, based on the particular facts of the case. It is for Parliament to set the minimum sentence, if it wants to, and to set the “exceptional” provision—whether that is exceptional circumstances or however else it is defined. It is then for the judge to apply what Parliament has said.

As I said on the previous group, concerns have certainly been raised that offenders too often receive sentences below the minimum term. That both fails to provide an appropriate level of punishment that reflects the severity of the offence and undermines any sensible use of the word “mandatory” in this context. Let me give a couple of examples. Among adult offenders in 2020, at least—and I will explain my “at least” in a moment—50% received a sentence below the minimum term for third-strike domestic burglary. I said “at least” because the figures do not indicate whether these cases include early guilty pleas, for which they could get a reduction of up to 20%. Even allowing for that, at least 50% received a sentence below the minimum term. Of adults convicted of repeat possession of a weapon or bladed article, at least 21%—over a fifth—received a sentence below the minimum term.

I heard what the noble and learned Lord, Lord Thomas, said and I am not going to beat about the bush, either. I am trying to be clear. There may well be a difference of opinion around the Committee, but at least let us identify it clearly. With this provision, we seek to ensure that courts depart from the minimum sentence only in exceptional circumstances. Those are clear words, and they mean what they say.

We believe that the test of exceptional circumstances is both suitable and important. Not only does it help to address problems that have been escalating in our communities for some years, especially with regard to knife crime, but it will create greater consistency in the statutory provisions on minimum sentences. The change is therefore intended to reduce the circumstances in which the court will depart from the minimum term, ensuring that this important safeguard is used only where the court considers that there are exceptional circumstances, pertaining to the offender or the offence, that would make the minimum sentence unjust.

The changes align the criteria used for these offences with the criteria for passing a sentence below the minimum term in relation to offences involving firearms, where the proviso of exceptional circumstances is already in the law. However, I underline that the judicial discretion for the court to fully consider the facts of the case before it and decide on the appropriate sentence in line with the statutory framework is therefore retained.

I listened carefully, as I know the noble and learned Lord would expect me to, to the noble and learned Lord, Lord Judge. I think we may stray into almost philosophical areas, albeit very important ones, as to what a sentencer ought to do and perhaps even what we mean by “unjust” and where justice lies.

Parliament sets out the statutory framework. If the Bill is passed, Parliament will say that the minimum sentence is X years and that the proviso is exceptional circumstances. It is then for the judge to apply what Parliament has set out. That is the way our system operates. We can have an interesting debate about whether, if a judge does that, the judge can be doing something that is “unjust”. I fully understand where the noble and learned Lord is coming from, looking at “unjust” in a broader sense, but there is a basic justice in Parliament, which is ultimately where power resides, setting out what the minimum sentence and the exception should be and then leaving it for the judge to apply that exception on the facts of the case.

I heard very clearly the point made by my noble friend Lord Hailsham about whether longer sentences actually help. Again, that takes us into a whole different area. I mean no disrespect by not replying to him at length but we believe the sentences here are appropriate and suitable.

When the noble and learned Lord, Lord Thomas, concluded by saying, “Are we not to require our judges to do justice?”, I do not know whether he was intentionally paraphrasing the famous argument of Abraham to the Almighty. When the Almighty is going to destroy Sodom and Gomorrah even though there are some righteous people there, Abraham says to the Almighty, “Will the judge of all the earth not do justice?” I hear very strongly that the ultimate requirement is to do justice, but I emphasise that in our system we start with the parliamentary legislation. That is why we collectively, here and in the other place, bear such a heavy burden. It is for us to set out the statutory framework and then for our judges and courts to apply that framework. That is ultimately the way, I suggest, that justice is done in our system.

I do not want to lecture the Committee any further on jurisprudential matters. I invite the noble Lord to withdraw the amendment.

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

My Lords, I am grateful for the speeches that we have heard in this interesting debate, particularly by those who have the most sentencing experience, the noble and learned Lords, Lord Judge and Lord Thomas. I am also grateful to the noble Viscount, Lord Hailsham, and to the noble Lord, Lord Ponsonby, for his indication of the Labour Party’s support.

While I will withdraw the amendment at this stage, I will return to it on Report. My concern is that the Minister, and I am grateful for the care that he gave to his response, failed to appreciate quite how loyal judges are to the law. Where the law requires a judge to find that exceptional circumstances exist before making a departure from the minimum sentence, he will do so loyally.

The point that both noble and learned Lords made is that it is simply wrong for the law to require judges, where they might have found that the circumstances of an offence or an offender dictate that the just sentence is less than the minimum, to be in the position that they have to say, “I cannot here find that the circumstances are exceptional—that is, completely out of the ordinary—and although I believe that the sentence I am constrained to pass is unjust in the sense that it is the wrong sentence, I nevertheless have to do it.” That is the result of the loyalty judges feel to the law—the noble and learned Lord, Lord Judge, mentioned the judicial oath—and is a weakness of this proposed provision, which puts political dogma above the need to do justice. Although I will withdraw my amendment now, I hope that, given the speeches we have heard, in the next few weeks or months, before Report—depending on when that is—we can talk to the Minister, take this matter further, and see if we can get some movement. Saying that, I beg leave to withdraw the amendment.

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[Lord Wolfson of Tredegar (Con)]

My Lords, this is obviously an important set of amendments. I thank all those who spoke on the arguments put forward. We agree across the Committee that sexual violence is a devastating crime that can have lifelong impacts on victims and survivors. The noble Lord, Lord Marks of Henley-on Thames, used the word, “scourge”. I do not disagree with that. He was also right to say that a change in culture is part of the solution here but also that these crimes have to be punished with sentences that match the severity of the offence.

As the noble and learned Lord, Lord Falconer, said, the group of amendments encompasses a number of such crimes. Let me take each one in turn. I will start with the Amendment 195, which would require the court to impose a minimum custodial sentence of at least seven years for a rape offence committed under Section 1 of the Sexual Offences Act 2003 unless, as stated in subsection (2), there are exceptional circumstances that justify not doing so. I respectfully agree with the noble and learned Lord that there is an important point here. He was making, it is fair to say, substantially the same point that I was making to the noble and learned Lord, Lord Judge, about the roles of Parliament and the courts. Just as the noble and learned Lord, Lord Falconer, has nothing but respect for the courts and judges, so do I. I should also say that my wife is a judge but she does not come anywhere near to sentencing anybody, so perhaps I do not have to make that declaration.

We agree on the principle that there are some cases in which it is right for Parliament to set out a minimum sentence with an exception, and other cases where it is appropriate to have greater judicial discretion. The real question is how we respond to each case, bearing in mind the scope of the sentences available to the sentencing judge.

Against that background, we have to remember that the maximum penalty for rape is life imprisonment. Quite rightly, rape offenders already receive significant sentences. I remind the Committee that in 2020, the average—I underline “average”—custodial sentence given to adult offenders for a Section 1 rape offence, where the victim was 13 or over, was almost 10 years. That represents an increase of almost 15% over the past decade. Also in 2020, over two-thirds of those offenders received a custodial sentence of over seven years.

Also, in certain circumstances, where offenders are convicted of a repeat serious sexual offence, including rape, the law already provides for a minimum sentence of life imprisonment. I should underline that the original offence, when we are talking about the repeat offence category, may not necessarily have been rape but one of a number of serious sexual and violent offences. In addition, in this Bill, and through legislation in the past year, the Government are ensuring that rape offenders sentenced to over four years must spend two-thirds of their sentence in prison, as opposed to being released at the halfway point.

However, as the noble and learned Lord, Lord Falconer, recognised in his Second Reading speech, it is important that we maintain judicial discretion for the court to consider the facts of the case before it and decide on the appropriate sentence. Perhaps I can provide some support on this point —or perhaps the noble Viscount may give me some support. It is important that, given the complex nature of this offence and the wide range of circumstances the court may need to take into account, we maintain that role for judicial discretion. We may both lack the appellation “learned” but I hope that that does not detract from the strength of the point we are making.

Although the sentence lengths for rape have increased, we have a serious problem. We have long recognised that the decline in the number of effective trials for rape and serious sexual offences is a cause for serious concern. I have said that from the Dispatch Box before. Let me take the opportunity to mention briefly some of the wider action we are therefore taking to support rape victims and improve the way rape cases are handled by all criminal justice partners.

We published the End-to-End rape review on 18 June. This sets out our ambitious plans to improve numbers of rape cases being referred by the police, charged by the Crown Prosecution Service and reaching the court. On 21 July, we published the cross-government Tackling Violence Against Women and Girls Strategy, to help better target perpetrators and support victims of crimes which disproportionately affect women and girls. As to sentencing, the maximum penalty for rape is life imprisonment, and it is already the case that the courts impose significant sentences. For the reasons that I have set out, we believe it is proper that the courts retain discretion to ensure that they can impose the appropriate sentence based on the facts of the individual case.

Turning now to Amendment 197 on the abduction, sexual assault and murder of a person, I read it as the noble and learned Lord intended, that it is all three. The amendment would expand the circumstances where a whole-life order would be the starting point to include cases of murder involving the abduction and sexual assault of a single person. While this Government obviously greatly sympathise and understand the concerns that underpin this amendment, I respectfully disagree with what is proposed. All those convicted of murder already receive a mandatory life sentence. For murders involving sexual or sadistic conduct, the starting point for the minimum term in prison is 30 years. Judges are able to increase or decrease a minimum term from this starting point according to the circumstances and relevant aggravating or sometimes mitigating factors. In addition, and as was demonstrated by the sentencing of Wayne Couzens for the horrific abduction, assault and murder of Sarah Everard, there is also an existing discretion to impose a whole- life order if the seriousness of the individual case is exceptionally high.

We are committed to ensuring that serious sexual and violent offenders serve sentences that reflect the severity of their crime. However, I believe that our current sentencing framework, a crucial component of which is judicial discretion, responds correctly at present to these horrendous cases. The courts can, and indeed do, impose extremely robust sentences where appropriate that fully reflect the gravity of this offending and the appalling—often lifelong—harm that it causes.

As I am on the topic of whole-life orders, I will go slightly out of turn chronologically to address the notice given by the noble Baroness, Lady Massey, and the right reverend Prelate the Bishop of Derby that they oppose Clause 103 standing part of the Bill. Clause 103 makes it possible for people aged 18 to 20 to receive a whole-life order where the crime committed is extremely serious. Clause 103 has to be read together with Clause 102, which expands the range of circumstances where a whole-life order must be the starting point to include the premeditated murder of a child. The current position is that whole-life orders can be imposed only on offenders aged 21 and over. This acknowledges the utmost seriousness of this punishment and its overwhelming effect on an offender’s future. We recognise, however, that there may be some rare cases where it may be appropriate to impose a whole-life order on offenders aged 18 to 20. We propose, therefore, to give judges the discretion to impose a whole-life order on an offender aged 18 or over, but under 21, in those cases.

We have set out an important clarification or criterion for when that sentence would be available. Clause 103(2)(b)(3C) makes it clear that the sentence will be warranted for offenders in the 18 to 20 year-old cohort only where the crime was extremely serious even by the standards of the crimes which would normally attract a whole-life order. We anticipate that this discretion would be exercised rarely. The expectation is still very much that offenders aged under 21 would not receive a whole-life order, but the change will allow judges to impose these sentences for these younger offenders, who are of course still adults, where that is necessary.

Let me turn finally to Amendment 196 which the noble and learned Lord, Lord Falconer, set out. As was stated in the other place, we are sympathetic to the objective of this amendment. The unlawful naming of people whose identity is protected by law ought to be appropriately punished. It is a crime which can have serious consequences and cause serious upset, concern and more.

However, with respect, our view is that the amendment does not go far enough. It is limited to breaches of Section 5 of the Sexual Offences (Amendment) Act 1992. That Act applies where an allegation of a sexual offence is made, and it imposes an automatic prohibition on publishing any material likely to lead to the identification of the complainant. It also covers alleged victims of human trafficking. This amendment would cover those types of victims, but there are many others whose identity is also legally protected, where the existing penalty for breach would be unaffected.

Sometimes the protection is automatic, for example for victims of female genital mutilation and forced marriage, where the breach offence is the same as that in the 1992 Act, or victims, witnesses and defendants under the age of 18 in youth court proceedings, something which I know the noble Lord, Lord Ponsonby, will be familiar with. In addition, reporting restrictions can be imposed at the discretion of a court, for example in relation to underage participants in a Crown Court trial or vulnerable adult witnesses. Since one reason for imposing these discretionary restrictions may be to protect the subject from injury, one should not assume that the discretionary imposition of restrictions is any less serious than the automatic ones.

Contempt of court may overlap with specific breach offences in circumstances where there is a potential impact on the justice process; that would have a two-year maximum. Therefore, we believe there is a strong case for examining this area of law as a whole, rather than amending legislation piecemeal. My right honourable and learned friend the Attorney-General has invited the Law Commission to undertake a review of the law of contempt of court, with particular reference to the interface between that and the criminal law, including the specific breach offences under discussion today. If the Law Commission takes on that task, it would provide a sound basis to look at this area properly and provide some real improvements in the protection the law offers to participants in the criminal justice process.

For the reasons I have set out, I invite the noble and learned Lord to withdraw his amendment and invite the Committee to allow Clause 103 to stand part of the Bill.

[Lord Falconer of Thoroton (Lab)]

I am obliged to everybody who took part in the debate. There was widespread support around the Committee for the increase in the penalties for the naming of an anonymous complainant. I thought the speech from the noble Lord, Lord Wolfson, was cruel, because it appeared to support it and then talked about the Law Commission. That is years away, so I think we will come back to this on Report. If the Minister would be willing to help me, we could expand the range if he thinks that is appropriate.

In relation to the question of a minimum sentence for rape, as far as the Government are concerned, there is already a minimum sentence of seven years for third Class A drug trafficking offences, a minimum of three years for third domestic burglary and a minimum sentence for offences of threatening with weapons or bladed articles. I am broadly in agreement with the proposition that minimum sentences should be exceptional, but if they are to apply to any case, rape must be the appropriate case.

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[Baroness Brinton (LD) [V]]

My Lords, I am pleased to support the noble and learned Lord, Lord Falconer, on Amendments 196A to 196D, and I thank him for so ably and eloquently presenting the importance of these changes. I am sorry that the noble Baroness, Lady Newlove, has been unexpectedly called away, but, as your Lordships’ House knows, she was the Victims’ Commissioner, and, through her work with victims, she has asked me to say that she is extremely supportive of this group.

I think that most people are aware of the fundamental right in our justice system to appeal a sentence handed down by a judge. Following a sentence hearing, a convicted offender will meet with their lawyer to discuss what comes next and what their rights are with regard to an appeal. This is a fundamental and correct part of our process, and we should hold it in high regard. But what many are not aware of—and this leads me to the necessity of these amendments—is the unduly lenient sentence scheme, which provides the right for anyone to appeal a sentence. This right is of particular importance to the victims of crime and bereaved family members, and the scheme is recognised as a key entitlement in the victims’ code of practice. Operated by the Attorney General’s Office, it provides this fundamental right, which is an important process for victims and bereaved families and can bring comfort and increased confidence in the justice system.

However, as we heard from the noble and learned Lord, Lord Falconer, these rights are not equal in policy or practice, and many victims find themselves learning of their rights by chance, too late or not at all, all of which can have a devastating impact on a victim’s recovery. The scheme, like an offender’s right of appeal, has a time limit of 28 days. This limit provides some assurance for those involved, which we think is important. However, this is where the parity between victim and offender ends, and the amendments tabled by the noble and learned Lord, Lord Falconer, would rectify the problem. While offenders are told of their right to appeal almost immediately following the sentencing, we know that many victims are never informed of their rights at all.

I will briefly tell you about someone who has been denied her rights under this scheme. Claire, a loving mother to a young daughter, was stabbed repeatedly and had her throat slashed by her ex-partner. Thankfully, Claire survived this most horrific of attacks, which was carried out in the presence of her daughter. The offender in the case was arrested and charged, and plead guilty to attempted murder earlier this year. He was handed a life sentence but with a minimum term of just eight years. No justice agency told her of the unduly lenient sentence scheme, and it was only while speaking to Tracey Hanson, whom the noble and learned Lord, Lord Falconer, referred to, that she became aware of it. She spoke to the police about it, and they incorrectly told her that she could not appeal due to the offender having received a life sentence.

The problem is the lack of clarity about this scheme, and the lack of responsibility for telling a victim meant that Claire was unable to request that the sentence be appealed within the 28 days. And so the man who slashed her throat her in front of her young daughter may be released in as little as eight years. We must stop failing victims who bravely come forward to bring offenders to justice and whom we repay with this appalling treatment and injustice.

The revised victims’ code of practice, which came into force in April and codifies the rights and entitlements of victims of crime, assigns this responsibility for informing victims to witness care units. While this is useful and important, it fails to realise that many victims and bereaved family members will have no contact at all with witness care units, leaving many still unaware of their rights. So we must ensure that victims and bereaved families are informed in good time after sentencing, because it is absolutely vital that they are able to use their right to appeal if they so want.

These amendments also seek that the Secretary of State conduct a review of eligibility under the scheme, opening up the possibility of including further serious offences, with the aim of delivering this vital right to more people. Gareth Johnson, MP for Dartford, speaking in the other place, talked passionately of the experience of his constituents: the family of Gemma Robinson, who was brutally beaten by her partner, who was the subject of a restraining order following a previous assault against her. Following this, her partner was arrested and charged with Section 18—grievous bodily harm—an offence recognised under this scheme. Tragically, Ms Robinson took her own life prior to his appearance in court and the charge was reduced to Section 20, malicious wounding. This offence, as it stands, is ineligible for the unduly lenient sentence scheme, so Ms Robinson’s family could do nothing as a sentence of just 3.5 years was handed down.

I thank the London victims’ commissioner, Claire Waxman, and her office for their tireless work in pushing for reform to the unduly lenient sentence scheme. I thank the noble and learned Lord, Lord Falconer, for tabling these amendments and making the possibility of reform a reality. I urge the Minister to support this amendment, not just for those whom the system has failed but for those whom it can stand to benefit in future—those victims and families who feel that in their case justice was not done.

[Lord Wolfson of Tredegar (Con)]

My Lords, the amendments all refer to the unduly lenient sentence scheme, which is set out in Sections 35 and 36 of the Criminal Justice Act 1988. It allows anyone to ask for certain sentences imposed by the Crown Court to be considered by the law officers where the sentence is felt to be unduly lenient. The law officers—it is ultimately their decision, for reasons I will come back to—may then decide to refer the case to the Court of Appeal. Once it gets there, it is a matter for the Court of Appeal to decide whether the sentence should be increased.

I should underline that it is not a right available to anyone to ask the court to reconsider the sentence. The way the system works is that the request is made to the law officers; their role is to ask the court to increase the sentence. That was set out deliberately and rightly in the scheme. We prosecute in this country in the name of the Crown; we do not have, with very few exceptions, private criminal prosecutions. The instances of the scheme going wrong or people not knowing about it, as we have just heard in the cases of Tracey Hanson and the appalling murder of her son Josh, and the terrible attack on Claire in front of her young daughter, are terrible to hear about. One can only imagine the consequences for those families.

I therefore understand the motivation behind Amendment 196A. It is critical that victims, prosecuting authorities and members of the public are aware of the ULS scheme. I heard the noble Baroness, Lady Brinton, talk about a lack of clarity. She quite rightly referred to the revised Code of Practice for Victims of Crime, or the victims’ code—I am grateful to her for doing so—which came into force on 1 April this year. It provides victims with the right to be informed about the existence of the scheme and includes, as we heard, a requirement for the witness care unit to inform victims about the scheme promptly when sentencing takes place. In addition, the Crown Prosecution Service references the scheme in its leaflet entitled Information for Victims. There is provision in place to ensure that victims and their families are informed of the scheme.

It is not the case that it is left to victims or bereaved families to contact the law officers. The Crown Prosecution Service can and does make requests directly to the Attorney-General for cases to be referred to the Court of Appeal in instances where the prosecuting authority considers the sentence to be unduly lenient. Those requests are considered by my right honourable and learned friend the Attorney-General in the way that she considers all such requests. While I understand the motivation behind Amendment 196A, I suggest that it is not required.

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Moved by

[Lord Wolfson of Tredegar]

205: Clause 107, page 94, line 36, leave out “may be imposed” and insert “could have been imposed (in the case of an offender aged 21 or over) at the time when the actual sentence was imposed”
Member’s explanatory statement
This provides that the longer period before release for sentences within new section 244ZA(4) of the Criminal Justice Act 2003 will apply only in relation to offences that were punishable with life imprisonment at the time of sentencing (not offences that are later made so punishable).

[Lord Wolfson of Tredegar (Con)]

My Lords, this is a drafting amendment to Clause 107. Its purpose, as I hope has been explained, is to prevent a prisoner who is serving a sentence for an offence which, at the time it was imposed, did not carry a maximum penalty of life imprisonment, having their release date changed retrospectively from the half-way to the two-thirds point.

Such an offender should not be made subject to the two-thirds release provisions of Clause 107 should the maximum penalty for their offence be increased to life at a later date, after they were sentenced. Let me give an example that I hope the Committee will find helpful. An offender is sentenced for an offence that currently carries a maximum of 10 years’ imprisonment. They receive an eight-year determinate sentence. That sentence is not caught by the two-thirds release requirements because the offence does not carry a maximum penalty of life imprisonment, so the offender is given a half-way release point. Now let us assume that, three years later, the Government increase the maximum penalty for that offence to life imprisonment. Without this amendment, the offender would have their release point retrospectively amended from the half-way to the two-thirds point of the sentence.

That was not the intention of Clause 107, and it is important that we correct this now. With this amendment, Clause 107 is future-proofed appropriately and as intended. It applies to those sentenced for offences that are increased to a life maximum in the future, but applies only to those sentenced after that increase in the maximum sentence becomes law. The amendment will ensure a fair and consistent approach to such offences. For those reasons, I beg to move this amendment.

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

My Lords, we support these amendments. It is obviously right to remove the retrospection and we congratulate whoever spotted the anomaly and brought the amendments to the Committee.

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Moved by

[Lord Wolfson of Tredegar]

207: Clause 107, page 95, line 24, leave out “may be imposed” and insert “could have been imposed (in the case of an offender aged 21 or over) at the time when the actual sentence was imposed”
Member’s explanatory statement
This provides that the longer period before release for sentences within new section 244ZA(5) and (6) of the Criminal Justice Act 2003 will apply only in relation to sexual offences that were punishable with life imprisonment at the time of sentencing (not offences that are later made so punishable).

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[Lord Falconer of Thoroton (Lab)]

My Lords, this is a very interesting proposal. I think we all agree, across the House, that where somebody is entitled to automatic release at half or two-thirds of their sentence, if there is proper material from which the conclusion can be reached that the defendant poses a significant danger to the public, then the automatic release date should not apply, and presumably the defendant should then be kept in prison until the end of the nominal sentence. As the Bill is currently drafted—putting it shortly—if there are reasonable grounds for the Secretary of State to believe that the defendant might pose such a risk, the Secretary of State can refer it to the Parole Board to decide.

What the noble Lord, Lord Carlile of Berriew, wants is that, if the Secretary of State forms that view, he or she should refer the decision to the High Court. The High Court would then make a determination on the substance of the issue: whether the prisoner constitutes a danger. The noble Viscount, Lord Hailsham, called it a drafting point, but as I understand the drafting here, if the High Court forms the view that the prisoner does constitute such a danger, the High Court does not determine whether or not the prisoner is released but refers the matter to the Parole Board. In his opening speech on the amendment, the noble Lord, Lord Carlile, said he believes that the operative decision should be made by the Parole Board, not the High Court.

Necessarily, that ends up with a situation where what the High Court is deciding, one way or another, is whether there are proper grounds for the Secretary of State’s belief that the prisoner may pose a risk. It would be necessary to amend the amendment to say that, because otherwise the operative decision is plainly being taken by the High Court, not the Parole Board—and the noble Lord, Lord Carlile, wants the decision to be taken by the Parole Board, which I understand. Once you get to that point—namely. whether there are proper grounds for the Secretary of State’s belief—then it is judicial review, so I am not sure what is added by this proposal.

I do not wish to give away any secrets, but I am sure there are Secretaries of State who, under press or political pressure, would refer such a decision to a body with the power to determine whether or not somebody should be released at the automatic release date. Whether the reference is to the Parole Board or to the High Court, honestly, Secretaries of State will still be guided by political considerations. As far as the Secretary of State is concerned in the notional example given, if they want to make a political point they will refer it to whoever the statute says they should, irrespective of their precise state of knowledge, for political reasons. The noble Viscount, Lord Hailsham, and the noble Lord, Lord Carlile of Berriew, are saying that they will be pushed into it by politics. Well, under his amendment, they will be pushed into referring it to the High Court, and under the Minister’s position they will be pushed into referring it to the Parole Board, which is where the noble Lord, Lord Carlile of Berriew, wants it to end up anyway.

I am not sure that this amendment achieves much, as it pushes you back into judicial review, which is where we are already. I am sympathetic to the position adopted, but—I put this advisedly—if the noble Lord, Lord Carlile of Berriew, was willing to put his money where his mouth is, surely the end point should be that the High Court decides. That would provide a much more effective safeguard. This does not quite get there.

[Lord Wolfson of Tredegar (Con)]

My Lords, we have had a very interesting debate. The last few speeches have highlighted the problems with the approach that I was going to set out. In short, where we end up on this amendment is, in effect, the High Court taking the decision and not the Parole Board. I shall come back to the “would” point made by my noble friend Lord Hailsham, which I was going to make as well and is absolutely right.

The amendment would require the Secretary of State first to refer high-risk offenders to the High Court. They could then be referred to the Parole Board only with the court’s approval. That is the structure that we are dealing with. The structure in our clause is that the Secretary of State refers directly to the Parole Board. If referral to the High Court is put in as an intermediate process, it would mean two things. First, the High Court may reject the referral from the Secretary of State if it did not agree that the offender would pose a risk of serious harm. My concern is secondly that, if the High Court did consider that the offender would pose a risk of serious harm, it would roll the pitch in a very serious way for the Parole Board.

I therefore have concerns about both the necessity and the benefit of involving the High Court in this process, but nothing I am going to say is intended to undermine two points on which I agree with the noble Lord, Lord German; first, on the importance of due process and, secondly, that we should limit arbitrary power. I suggest that the court does set out due process and limits arbitrary power.

The important point to bear in mind is that the new power is not a re-sentencing exercise. It is not the Secretary of State extending the detention of the prisoner. I fully accept the point made by the noble Lord as to the important boundary between Secretary of State and judge, between Executive and judiciary. I also want to have a strong and independent judiciary; I believe we do. That principle is not contravened by this clause, because it is the independent Parole Board that will make the final decision as to whether an offender is safe to be released early. The Secretary of State has the power to make a referral, but he or she must have a sound basis for doing so and must give the prisoner notice, which must include the grounds for making the referral and give the prisoner the opportunity to make representations to the Secretary of State.

As for the criteria in play, we will closely monitor and record how the power is used. We will publish a policy which clearly outlines the threshold that must be met and the principles which will underpin the Secretary of State’s decision-making procedure in determining whether to refer a case to the Parole Board.

[Lord German (LD)]

That was a good statement of intent. When do the Government expect to be able to produce that? Would it be before we have concluded this Bill, so we will know where we are going with it?

[Lord Wolfson of Tredegar (Con)]

I do not want to give an incorrect answer to the noble Lord. I know that there are different codes of practice and different sets of procedures in various parts of the Bill. Can I get back to him in writing on that point, so that the Committee knows where it is before Report?

[Viscount Hailsham (Con)]

On a related point—the obligation on the Secretary of State to give reasons—how detailed should those reasons be? Will there be some published code which ensures that the Secretary of State complies?

[Lord Wolfson of Tredegar (Con)]

I have said that we will publish the principles which underpin the Secretary of State’s decision. The other point that I make in this regard, which goes to the adequacy of reasons point—it was touched on by the noble and learned Lord, Lord Falconer, with his experience—is that judicial review of the Secretary of State’s decision would be available. My noble friend will be aware from the case law as to the relevance of reasons in a case where the decision can be challenged by way of judicial review.

In light of what I have said, I hope that the Committee will appreciate that this mechanism, which we expect to be used only in rare instances, will prevent the automatic release of offenders whose risk becomes apparent only after they have been sentenced.

Let me make one point. I apprehended at certain points in the discussion that there was perhaps a misapprehension, which I should clear up: that one could detain the prisoner beyond the end of the sentence as handed down by the court. We are not talking about that. To be clear, we are talking about the period between the automatic release point and the end of the sentence.

Police, Crime, Sentencing and Courts Bill

Lord Wolfson of Tredegar Excerpts

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

[Lord Falconer of Thoroton (Lab)]

My Lords, I have already spoken once. I speak very briefly to say two things. First, what an impressive debate this has been. I draw attention in particular to the speeches of my noble friends Lord Blunkett, Lord Hunt of Kings Heath and Lord Bradley, the noble Lords, Lord Moylan, Lord Ramsbotham and Lord Hogan-Howe, and the noble Baroness, Lady Burt. I draw attention to them because they are not lawyers; they are people who have had contact in other ways with this system and come to the conclusion that it should end.

Secondly, we on this side of the House support all the amendments. Some are alternative ways of dealing with a particular problem, but we support all the proposals. We are not, in the amendments before the House, going as far as some of the speeches went. We are not suggesting the immediate abolition of the sentence. We are saying: support for those in prison to try to get released; support for those who are released to get proper help; and an easier process of having consideration of the licence being got rid of.

As the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said, the one with the teeth is Amendment 208F. It says you get rid of these licences and release the person if they have served more than the sentence for the offence. If you have been sentenced to five years in prison, and that is the maximum sentence, once the maximum is reached, unless the detaining authority can prove that you are still a risk, you get released. If you are still below the maximum sentence for the offence for which you were convicted, but you have been in for 10 years, the same principle applies. It is an incredibly sensible way of ensuring the sentence goes for those who have got it, but you keep inside those who represent a severe danger, as long as the detaining authority can establish that they remain a danger.

I very much hope that the Minister will be able to give some words of comfort to the effect that these very moderate proposals will be taken up by the Government. If there are amendments to these proposals, of course, everybody in the House will consider them, but it is time for a change. These modest proposals require consideration for this Bill, because the biggest disappointment would be to be told that it is coming at some later stage.

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

My Lords, Amendments 208A to 208H relate to offenders serving sentences of imprisonment for public protection commonly known as IPPs. The noble Lord, Lord Pannick, who was very kind about my work as a Minister, invited me to put away the departmental brief. I am not going to do that, not least because it might mean that my work as a Minister here ends somewhat prematurely. But that is not inconsistent, I hope, with making it clear to the Committee that I have listened carefully to the debate and to the points raised around the Chamber. I will reread the debate in the Official Report as well.

Of course, I feel the mood of the Committee—that would be impossible to miss. The speeches have been powerful and sometimes heartfelt. Without wishing to ignore others, may I say the contributions from the noble Lord, Lord Blunkett, and the noble and learned Lord, Lord Woolf, about their personal part in the genesis of IPPs have been unusual and moving. This politician, may I say to the noble Baroness, Lady Chakrabarti—although I see myself still as a lawyer, not a politician—certainly is trying to get this right. I do not think this is an issue which admits of easy analysis. To use the words of the noble and learned Lord, Lord Judge, it is something of a puzzle, which requires looking at carefully and solving.

I am grateful to those noble Lords who have met with me and discussed the issue. I am sure we will have further discussions between now and Report. I should say that I read Matthew Parris’s column at the end of July as well.

I will go through the amendments and set out the Government’s position, then I will come back at the end to some more general points. Four of the amendments, Amendments 208A to 208C and 208E, the latter from my noble and learned friend Lord Garnier, would require the Government to conduct a review on matters such as sentence progression, resettlement and supervision of prisoners serving an IPP sentence, and to lay a report before both Houses of Parliament.

The Government recognise that work needs to be done in relation to this group of prisoners. I will set out the work that has been done so far. We have put together what I think has been a successful action plan dedicated to the rehabilitation and risk reduction of IPP offenders. We continue to work to increase opportunities for IPP offenders to progress through their sentences via this plan. A qualified psychologist leads a review of the case of every IPP prisoner who is not making the expected progress. Between July 2016 and September this year, which is about five years, just under 1,700—1,679—reviews were completed; 440 prisoners were subsequently released and a further 474 secured a progressive move to more open conditions.

My noble and learned friend Lord Garnier commented on the availability of courses for IPP prisoners to help them make that progress. It is right that during the pandemic there were fewer places on some group interventions. We asked offender managers to look at other sorts of interventions to draw evidence from them for the parole reports. However, we have now been able to ramp up the provision again. Not all IPP prisoners will require the same interventions, of course, but we try to make sure that each prisoner has a suitable pathway, as it is called, to a future safe and sustainable release. That is the focus of the programme. There is a range of interventions, including places on progression regimes, other accredited programmes and places in open prisons. Where a programme is not available for an offender, the prison offender manager would seek to have the prisoner transferred to a prison where the programme is available, subject to a risk assessment and available places. In the meantime, other work would be identified so that the prisoner could undertake that work.

We believe that the action plan is working. High numbers of IPP prisoners are being released each year and the proportion of positive Parole Board decisions remains high. I do not think anybody mentioned this, but let me put it on the record that the Justice Select Committee in the other place has recently launched an inquiry into IPP sentences. Its stated aim is to examine

“the continued existence of IPP sentences and to identify possible legislative and policy solutions.”

The Select Committee will scrutinise what the Government are doing. I have no doubt that it will provide recommendations, which the Government look forward to hearing. I therefore underline that we are doing work in this area. We do not believe that a separate government-led review is necessary at this time.

I turn to Amendment 208D from my noble friend Lord Moylan. Currently, an IPP offender may apply to the Parole Board to have their licence terminated once 10 years from their first release from custody has elapsed. To do that, the offender must give their permission to the Secretary of State to apply to the Parole Board for licence termination on their behalf. The first part of this amendment would therefore remove the legal requirement for the offender to give their permission. Instead, offenders would be automatically rereferred for consideration each year, were they unsuccessful. The second part would change the time period from 10 to five years.

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[Lord Falconer of Thoroton (Lab)]

None of the amendments would mean that there would not necessarily be a consideration by the Parole Board, including Amendment 208G, which is the two-year automatic end unless the Government made an application to the Parole Board, so I am not quite sure what the basis of rejection of that one is.

[Lord Wolfson of Tredegar (Con)]

I am not basing it only on what I have called automatic termination. The scheme set out in Amendment 208G would represent a very different approach to management on licence and, for the reasons I have set out, that is not a form of management which we think provides adequate protection to the public. I may come back to that.

Amendment 208H creates a power for the Secretary of State to release an IPP offender who has been recalled to prison, so long as the Secretary of State is satisfied that it is not necessary for public protection for the offender to remain in prison. The position at the moment is that the Parole Board has a responsibility to assess whether offenders are safe to be released into the community, even after an IPP offender is recalled to prison. They can take a decision to rerelease from only 28 days after the offender is recalled. We believe that the Parole Board’s expertise in determining whether offenders serving indeterminate sentences are safe to be released is, as I said, an essential tool of public protection.

If I may, I come back to where I started, with the words of the noble Lord, Lord Pannick. Again, I am grateful for his kind words. I agree that there are certainly problems with the current system; we are looking at it. We believe that our IPP action plan has achieved significant results and we keep it under constant review. The noble and learned Lord, Lord Judge, in what I have learned to be his habit of putting his finger on the point at issue, asked, “Well, what is going to be done?” I hope that I have made it clear that I have listened to the debate very carefully, and that I have no doubt of the mood and the strength of feeling of the Committee. I am also sufficiently acquainted with the ways of this House to anticipate what might or might not be moved on Report as and when we come to it. I can say this afternoon that I will continue to work on this issue—a number of noble Lords know that I have been working on it already—and to listen to the debate, but for the moment, I ask noble Lords who tabled this amendment to withdraw it.

[Lord Blunkett (Lab)]

My Lords, there can be no disagreement that this has been a thoughtful and deeply impressive debate—the kind of occasion that does massive good to the reputation of this House. I hope, therefore, that the Minister’s words at the beginning and end of his response will give us some hope for the future. On a lighter note, I have to say that the noble and learned Lord, Lord Woolf, gave me so much advice when I was Home Secretary that I have difficulty remembering which bits of it I took and which I did not.

On this occasion, I have said already that we clearly have got it wrong, and we now have the opportunity to put it right. The House of Commons Justice Committee has not yet started its process; even with the length of debate on the Bill and the number of days that will be added, it will not have reported in time for us to be able to use this vehicle, and I see no other vehicle coming down the road. We have a chance and, given the Minister’s opening and closing remarks, we may have the opportunity to get this right. It would be admirable and most sensible if the Government were able to bring forward their own proposals before Report, through amendments, guidance and any further regulation by subsidiary legislation they are prepared to use, but if we do not get some movement in time for Report, I believe there is unanimity across all parts of this House that we will have to take action. When we do, I hope that we will have the kind of unanimity we have had this evening. I beg leave to withdraw the amendment in my name.

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[Lord Falconer of Thoroton (Lab)]

My Lords, I support this amendment, and very much hope that the Government will either accept it or explain what they are doing in response to the report of the Prisons and Probation Ombudsman on the case of Miss A and her baby. The noble Baroness, Lady Burt, has explained the facts; it is worth looking at them in a little more detail.

Miss A, as she is called in the report, was remanded in custody on 14 August; she was pregnant. It does not say in the report whether the court knew that she was pregnant, but that is not what this amendment deals with. On 19 August, she was seen by a safeguarding midwife, who said that her estimated delivery date was between 24 September and 14 October. On 26 September, she was put on extended observation, which means she would be seen by a nurse in the morning, at lunchtime, in the evening and twice overnight. On that very day, 26 September, she went into labour. At 8.07 pm, 8.32 pm and 8.45 pm, she called for help and, in particular, called for a nurse. All three calls for help were ignored. At 9.27 pm and 4.19 am that night, she was inspected—I assume through a cell hatch—for a regular roll call, and nothing untoward was spotted. At 8.21 am the next morning, other prisoners reported that there was blood in her cell, and at 9.03 am an officer identified that she had given birth overnight and that the baby had died.

It is an absolutely terrible story, as the ombudsman describes. As the noble Baroness, Lady Burt, said, the ombudsman made specific recommendations, which are reflected in proposed new subsections (1) and (2) of her Amendment 209. It says that the Secretary of State must provide “appropriate midwifery care” within the female prison estate, and then defines “appropriate midwifery care” as meaning

“midwifery care that is appropriate to a custodial setting … maternity services that are suitably resourced to provide … an appropriately qualified midwifery lead in each prison to oversee all aspects of perinatal care … a maternity pathway for prisoners that includes a process for women who decline to engage with services”—

as Miss A may have done—

“access for prisoners to psychological and psychiatric services … training for staff in trauma-informed care … training for staff in neonatal and child resuscitation procedures; and … appropriate emergency equipment for children and neonates.”

A lot of those go beyond what would have made a difference in this particular case, but if those recommendations of the ombudsman had been given effect to, the tragedy almost certainly would not have occurred. This gives the Government the opportunity to respond in this House to those recommendations, all of which seem sensible and will not impose a substantial financial burden on the prison estate, because there are not that many women’s prisons. If the Government are not willing to accept these proposals, what are they going to do about the problem? Can they give a reason why a duty such as this on the Secretary of State should not be expressed in the legislation?

[Lord Wolfson of Tredegar (Con)]

My Lords, I am very grateful to the noble Baroness, Lady Burt, for tabling this amendment. As the explanatory statement makes clear, the amendment builds on the recommendations of the recent independent investigatory report by the Prisons and Probation Ombudsman into the death of Baby A—as we are calling the baby—at HMP Bronzefield.

I shall start by repeating what my honourable friend Victoria Atkins MP said when giving oral evidence to the Justice Select Committee’s inquiry into women in prison on 3 November. I quote her because I want to associate myself with this, word for word. We are

“very grateful to the ombudsman for her report. The facts as they unfolded in that report were truly shocking. And the fear that that young woman must have felt and the loss she is dealing with even today, we do not, we cannot contemplate anything of that nature ever again within the prison estate.”

My deepest condolences remain with those affected.

The death of Baby A was a tragic and harrowing event and has rightly been the subject of several investigations and inquiries, including that by the PPO, to try to ensure that all the necessary lessons have been learned to avoid a repetition in future. The Committee may be interested to know that there is a Question on this incident on, I think, Wednesday, which will be another opportunity for the House to look at this terrible event, and I believe I am going to be responding to it.

While I point out that we are not talking about sentencing here, and the noble and learned Lord, Lord Falconer of Thoroton, was right to say so, it is right to say that when it comes to sentencing, pregnancy is certainly a mitigating factor that is specifically taken into account in the sentencing guidelines. I should also say that it is exceptionally rare now for a woman to give birth in prison. The most recent figures, from July 2020 to March 2021, show that 28 births—90% of the total number of births—took place in hospital and none took place in prison. I understand that in the case of the missing 10%, the baby came out a bit quicker than anticipated and the birth might have taken place in the ambulance, but none took place in prison.

In response to the terrible disaster of what happened to Baby A, the previous Lord Chancellor, the right honourable Robert Buckland MP, commissioned the independent external investigation by the PPO. We have since accepted and acted upon all its recommendations for the Ministry of Justice and the Prison Service. We immediately put in place practical steps across the women’s estate, including providing all women with free phone access to local NHS pregnancy advice services and additional welfare observations for pregnant women in their third trimester. At that time we were already undertaking a fundamental review of national policy on pregnancy, mother and baby units and maternal separation in women’s prisons.

As the noble Baroness, Lady Burt, recognised and said she welcomed, that work led to a new policy framework, published on 20 September, which develops those immediate actions into national requirements for all women’s prisons, delivering on a wide range of reforms. The new framework has an extended policy remit covering requirements on perinatal care and maternal separation, in addition to mother and baby units. I hope that what I have said so far—although I will say something more—reassures the noble Baroness and the noble Lord, Lord Hunt of Kings Heath, that we are serious about our response to this matter. We are determined to take all necessary action to avoid a similar tragic event in the future.

I shall turn to the detail of the amendment and explain why, in the light of the current legislative framework, we are not persuaded that what is proposed is necessary. Currently, NHS England is responsible for commissioning almost all forms of healthcare for prisoners within both the public and private estate in England under Section 3B of the National Health Service Act 2006 as amended by the Health and Social Care Act 2012. That statutory obligation has to be read together with Rule 20(1) of the Prison Rules 1999, which states:

“The governor must work in partnership with local health care providers to secure the provision to prisoners of access to the same quality and range of services as the general public receives from the National Health Service.”


The requirement to commission healthcare services and to secure and ensure prisoners’ access to them therefore already applies to the provision of maternity services in the women’s prison estate, so we do not consider that there is any need to add a further separate obligation in statute as proposed by the amendment. What is important is that we ensure that it actually happens. I certainly do not mean to be flippant, but repeating something in statute is not the way to ensure that it happens. We are focused on ensuring that it happens. We already have the statutory obligation.

In fairness to the PPO, I should note that it did not recommend any change to the statutory framework. Rather, it said at paragraph 14:

“Overall, the healthcare offered to Ms A in Bronzefield was not equivalent to that she could have expected in the community.”


It is that provision that we are focused on—ensuring that expectant mothers in prison get the same care as they would have received in the community. The Government’s position is that we would rather focus on that than duplicate statutory provision.

[Lord Falconer of Thoroton (Lab)]

The amendment would not be duplicating anything because it contains specific provisions that are not referred to in the other statutory obligation, so it would be clear what was required.

[Lord Wolfson of Tredegar (Con)]

What is required is that women in prison have access to the same maternity services as they could expect in the community. My suggestion is that once that is set out, that is a sufficient legislative obligation and the Government need to ensure that it actually happens.

I hope that nothing I have said detracts from what I said right at the start, which is that we are appalled by what happened to Baby A. It must never happen again, and we are going to do all we can to ensure that it does not. However, for the reasons I have set out, I invite the noble Baroness to withdraw the amendment.

[Lord Hunt of Kings Heath (Lab)]

My Lords, before the Minister sits down, I would like to ask him about the relationship between his department and NHS England. What express work is now being undertaken to ensure that the NHS discharges the statutory responsibility that he has just referred to?

[Lord Wolfson of Tredegar (Con)]

I know that when it comes to the prison estate, there is a very close relationship between my department, the Prison Service and NHS England. Rather than read something off a screen, may I write to the noble Lord and set out a paragraph or two to assist him on that? I am happy to discuss that further with him—or it might be appropriate for the Minister in the department with particular responsibility for prisons to do so. Anyway, I will write to the noble Lord.

[Baroness Burt of Solihull (LD)]

My Lords, I am extremely grateful for the learned contributions that have followed my words today, particularly from the noble Lord, Lord Hunt, and the noble Baroness, Lady Jones. I have taken heart, to a degree, from what the Minister has said. I accept what he says about the difference between statute and practice. We cannot just enact laws and expect everyone to suddenly do as they are told—it does not work like that—so I think the intention is extremely important.

I shall take this away and consult the bodies that have advised me—particularly Women in Prison, to which I am very grateful. For the time being, I respectfully request to beg leave to withdraw the amendment.

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[Lord Falconer of Thoroton (Lab)]

An incredibly powerful case has been made. We support it and I am grateful to the noble Earl, Lord Attlee, the noble Lord, Lord Hodgson, my noble friend Lady Lister and, in her absence, the noble Baroness, Lady Bakewell, for tabling these amendments. I completely adopt what my noble friend Lady Lister said about the total inadequacy of the reasons given in the Commons for not supporting this. The first was that it would mean there would be bunching of releases on other days, but if a third are on Friday already that seems a completely hopeless point. Secondly and separately, it was said that it is not used very much in Scotland; if it is not used very much, then the Government would not have much to worry about. Why not do it?

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful for the various speeches which have been given on these amendments, which, as we have heard, seek in different ways to avoid the release of prisoners on a Friday. Obviously, I understand the distinction between the two, although it is fair to say that they are both aimed at substantially the same point.

The current position is this. Section 23 of the Criminal Justice Act 1961 provides that prisoners whose release dates fall on a weekend or bank holiday should be released on the working day which immediately precedes that weekend or bank holiday. In most cases, that is a Friday, which is why, to make the obvious point, we have “bunching” on Fridays. If one would expect release dates generally to fall over the week, given the law of large numbers, you have Saturday and Sunday pushed back to Friday, plus the occasional bank holiday. We are very aware of and alive to the challenges that this can create in accessing support and services in the community. We are taking steps to mitigate those difficulties; I will turn to those in a moment.

First, however, the amendments seek to reduce releases on a Friday or non-working weekday by either preventing the court setting a sentence length that is likely to lead to release on those days, or by providing greater flexibility for prison governors to avoid Friday releases by giving the discretion to release earlier in the week. I heard what the noble Baroness, Lady Lister, said about the responses given in the other place: that the Minister there was clutching at straws. I think the noble and learned Lord, Lord Falconer of Thoroton, has set me the challenge to be better than “completely hopeless”. That is a bar I hope to surmount.

I assure the Committee that I am open-minded and have listened very carefully to the debate. While I am sympathetic to the need to tackle this issue, I do not agree that it is necessary to legislate in the way proposed by the amendments, and I will explain why. To do so would either undermine existing sentencing principles by preventing the court passing a sentence which is likely to result in release on a Friday, or it would allow prisoners to be released even earlier from their sentence. Legislation provides that prisoners are released on the working day closest to their statutory release date and we do not believe it is necessary to go further than that.

I will deal with sentencing first. It is not realistic or achievable to require a sentencing court to try to work out on which day of the week an offender would fall to be released and adjust the sentence accordingly to avoid that being a Friday, weekend or bank holiday. I would have thought that that is self-evident. It is obvious because a prisoner’s release date is something of a complex calculation. It is carried out by prison staff and depends on a number of different factors that a sentencing court would not necessarily be able to take into account. These could include: any other concurrent or consecutive sentences the offender might already be serving; the correct amount of remand time to apply on all relevant sentences being served; and any added days imposed for bad behaviour while serving the sentence.

[Baroness Jones of Moulsecoomb (GP)]

I thank the Minister for giving way; that is very kind. Is he aware of how daft that sounds? We have just explained that the punishing of ex-prisoners is not acceptable. The bunching should not occur; find a way around it.

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[Lord Wolfson of Tredegar (Con)]

I am trying to deal with the amendments in what I hope is a logical way. At the moment, I am dealing with the amendment which provides that the sentencing court should have regard to the day of release. I am trying to explain—cogently, I hope, and with great respect—why that is not a sensible or workable proposition.

I have dealt with longer sentences; let me now deal with shorter sentences. It might be said that with a shorter sentence the court could identify the release date. I accept that it would be easier for the court to identify the day of the week on which the release would fall if the sentence is very short—let us say two, three or four weeks—and if no other sentences are involved, but the problem there is that if you bring that release date even earlier, percentage wise, that is a significant additional reduction from the sentence. I therefore suggest that these amendments are not the answer—

[Baroness Lister of Burtersett (Lab)]

The Minister may be about to come to the point I was going to make. The provisions in Amendment 211 are discretionary. If it is possible in Scotland, why is it not possible here?

[Lord Falconer of Thoroton (Lab)]

The Minister said that he was dealing with the amendments logically. He dealt with only Amendment 210 and did not deal with Amendment 211.

[Lord Wolfson of Tredegar (Con)]

I am coming to the point about discretion in Scotland. I will respond to that in a moment, if I may. First, I wanted to identify how we think we can best deal with the problems which bunching can give rise to. I absolutely agree that reducing further crime by those who have been released is critical. We have to cut reoffending and we know that a lack of suitable accommodation or sustainable employment, as well as substance misuse, can lead offenders to return to crime. Therefore, we need to ensure that people leaving prison on all days of the week, Fridays included, have access to services.

I will briefly identify four important things in this regard. In January this year, we announced a £50 million investment to reduce crime and tackle key drivers of reoffending. In July, we launched temporary accommodation for prison leavers at risk of homelessness in five probation regions, because we know that having access to transitional accommodation is very important. We have invested a further £20 million in the Prison Leavers Project, which tests new ways to reduce reoffending by addressing the challenges people face when they leave prison.

[Lord Hodgson of Astley Abbotts (Con)]

I am of course impressed by the list of initiatives being taken by the Government and the roll call of money being spent, but it has not answered the question. We are not asking to spend money; all we are asking for is an administrative change. It may be an administrative change whereby the flexibility has to reflect the length of the sentence. We surely cannot be in a position where we cannot give prison governors a day or two of flexibility to enable them to set up a system of the sort that has been described all around the House. It must be possible.

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[Lord Wolfson of Tredegar (Con)]

I am not suggesting it is not possible; I am asking whether it is the best way to deal with the problem. I hear “of course it is”, but I suggest that it is not. Take the example of Scotland, where they have a discretionary power. That is a model of discretion regarding early release, under the Prisoners (Control of Release) (Scotland) Act 2015. Scottish Ministers have the discretion to bring forward the release dates of people in custody by no more than two days for the purposes of benefiting a prisoner’s reintegration into the community.

A freedom of information application was made on 30 March this year to the Scottish Prison Service which showed that only 20 prisoners have been granted discretionary early release under that Act in the five years since its implementation. We are not aware of any problems with implementation. I will ask officials in my department to consult with our colleagues in the Scottish Government to explore that issue further. If I am provided with any useful relevant information as a result, I will write to the noble Baroness to provide further information on that discretionary policy. We think that the best way to deal with this matter is to put money and services in place to ensure that prisoners, whatever day they are released on, have access to the services they need.

I heard the point made by the noble Baroness, Lady Lister, about universal credit. She very fairly gave me the opportunity to reply in writing, because that matter is substantially outside my department. I also heard what the noble Lord, Lord Ramsbotham, and the noble Baroness, Lady Chakrabarti, said about that issue; I will therefore respond in writing. At the same time, I will try to pick up the point made by the noble Lord, Lord German, on bank account opening, in so far as it is relevant to the universal credit point.

We are certainly not setting people up to fail; we sincerely want them to succeed and not reoffend.

[Baroness Lister of Burtersett (Lab)]

The Minister has made a slightly better fist of it than the Government did in the Commons, but in a sense he is clutching at the same straws—his presentation is just a bit more articulate than they were in the Commons. Does he not accept that it is better, even if it is just a few people, to help a few rather than none? Is he going to be able to say how he is going to keep services open over the weekend, because that is the issue? We have heard terrible examples of people being put in fields and turning to drugs and so on because the services are simply not there. This wonderful list of all these things the Government are putting money into is great, but I have not heard anything that would explain how the Government will ensure that services are there on a Friday evening, Saturday, Sunday and bank holidays.

I am afraid the Minister has not convinced me and, given the shaking of the head behind him, I do not think he has convinced the mover of the amendment, so I really ask him to look again at this. Although, unlike the first group of amendments, we may not have taken two hours on this group, there is absolute unanimity throughout the House that we can do something practical and it will not cost money. I am sorry, I am making a speech, which I should not be.

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[Lord Wolfson of Tredegar (Con)]

I do not want to repeat what I have said. My focus is on ensuring that people have access to services on whatever day they are released, whether it is a Tuesday, a Friday or any other day. It is certainly not the case that, if we just moved people’s release day from a Friday to a Tuesday or a Monday, all our problems would go away. We must have those services in place, and that is what I want to focus on. I have said that I will look in more detail at the Scottish discretionary system, if I can call it that, and I will write to the noble Baroness. I do not want to repeat what I have already said, but I hope that I have addressed the substance of her point. I suspect that the noble Lords who spoke to the amendment have indirectly told me the answer before I sit down, but I none the less invite my noble friend to withdraw his amendment.

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The Government need not only to restate their opposition to short sentences but to reinforce it. For the support in principle for these amendments expressed by the noble Lord, Lord Pannick, to become a reality, the law needs more teeth than it has at present. These amendments provide those teeth.

[Lord Wolfson of Tredegar (Con)]

My Lords, it is important to remember what is in the amendments and what is not. We are not really debating whether short sentences are or are not a good thing; government policy on that has been stated frequently and I will restate it shortly. I am not proposing to make any sort of turn, whether a U-turn or a Z-turn. Instead, I will keep on the straight and narrow, if I can use that phrase in this context.

It is important to remember what the amendments seek to do. They would prevent the court passing a short custodial sentence unless it is satisfied that no other sentence is appropriate. They would also require the court, if imposing a short custodial sentence, to explain why alternative sentences were not considered appropriate. Let me be clear: I understand absolutely the sentiment behind the amendments and appreciate, as the noble Lord, Lord Dubs, made very clear, that this is not saying that there are no circumstances in which a short custodial sentence could be appropriate—I fully take that on board.

I agree that short custodial sentences can, in many cases, be less effective at tackling reoffending than community sentences. The noble Lord, Lord Ponsonby, was very clear about the importance that magistrates attach to community sentencing and how it is important that they have confidence in the community sentence regime. The words of the right reverend Prelate the Bishop of Gloucester that were read to us also questioned whether short custodial sentences were, to use her phrase, an effective remedy. I think I have dealt with that point. I listened with real care to the testimony I heard at the event she organised and which I was very happy to attend.

The Government cannot support these proposals because they reflect existing law which is sufficiently robust. With respect to the noble Lord, Lord Beith, when it comes to statute, I do not believe that saying something again makes it stronger. If something is already in statute and is not being done, it is critical to investigate why it is not being done, and not simply say the same thing again. I therefore gratefully adopt some of what has already been said to the Committee by the noble Lord, Lord Pannick.

Section 230 of the Sentencing Act 2020—let us just see how it works—places important restrictions on the courts imposing discretionary custodial sentences. It starts with a negative:

“The court must not pass a custodial sentence”—


the starting point is that the court cannot pass a custodial sentence; that is the default—and then continues:

“unless it is of the opinion that … the offence, or … the combination of the offence and one or more offences associated with it, was so serious that neither a fine alone nor a community sentence can be justified for the offence.”

Section 77 of the Act goes further and makes clear that even where the threshold for passing a custodial sentence has been met, the court may still pass a community sentence after taking into account any mitigation. Even then, where a court has formed the view that only a custodial sentence can be justified, even in light of any mitigation, it may still suspend that sentence so that it does not become an immediate custodial sentence, taking into account factors such as realistic prospect of rehabilitation, strong personal mitigation, which would obviously include the effect on dependants, as we discussed in earlier groups, and significant harmful impact on others of immediate custody. We suggest that, taken together, this provides a very robust framework which would ensure that short custodial sentences are passed only where there is really no other alternative for the court.

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

I am very grateful to the Minister for giving way. Does he take my point that none of those provisions focuses on short custodial sentences in particular, as opposed to custodial sentences in the generality?

[Lord Wolfson of Tredegar (Con)]

I accept that they do not refer specifically to short custodial sentences, but when the court is considering a short custodial sentence, the particular factors the court would have to go through before imposing it—and particularly before imposing an immediate short custodial sentence—would be all the starker. It is important that we have a consistent regime. For the reasons I have set out, I do not think it necessary or helpful to have a separate regime for shorter custodial sentences. The position on that, I suggest, is already absolutely clear, as is the requirement for a court to explain its reasons for passing sentence. It is important to recognise that the court has to explain its reasons for passing any sentence, not just a custodial sentence; otherwise, the Court of Appeal will have something to say about it. That is set out in Section 52 of the Sentencing Act.

I hear the point made by the noble and learned Lord, Lord Hope of Craighead, that when it comes to courts explaining the reasons for their sentences, it is very important that they are bespoke and not off the peg—if I can put it that way. That is very important, not least for the offender to know why that sentence has been passed. I will not say any more about the reasons given by the Supreme Court for refusing permission to appeal, but the noble and learned Lord was certainly right that I was all too familiar with receiving those reasons in my cases.

The amendment tabled by the noble Lord, Lord Ponsonby, goes further because it sets out a list of “principles” the court must take into account. I suggest to the noble Lord, who is very familiar with this area, that those principles are by and large set out very clearly already in the guidelines from the Sentencing Council. I suggest that the principles enshrined in legislation would not take us any further.

As the noble Lord knows, there are five statutory purposes when it comes to sentencing, set out in Section 57 of the Act:

“the punishment of offenders … reduction of crime (including its reduction by deterrence) … reform and rehabilitation … the protection of the public, and … reparation by offenders”.

A sentence can serve one or more of those purposes. The Act also states that, even when the threshold for custody has been passed, that does not mean that a custodial sentence is inevitable—particularly for offenders on the cusp of custody.

Imprisonment should not be imposed where there would be a disproportionate impact on dependants. We touched on that today. We looked at that in a lot more detail in an earlier group, so I hope the Committee will forgive me for not dealing with that in any more detail. I have set out the position in some detail already. It is fair to say that, when this amendment was tabled in the other place, Alex Cunningham MP fairly recognised that the principles are already accepted in the sentencing guidelines, which all courts are required to follow; they are not optional. I suggest that the amendment is unnecessary.

Proposed new subsection (3) of the amendment from the noble Lord, Lord Ponsonby, concerns the impact of custody on the children of primary carers or the unborn child of a pregnant woman. I think that is almost identical to an amendment we discussed earlier, tabled by the noble Baroness, Lady Massey, the noble Lord, Lord Dubs, and the noble and learned Lord, Lord Falconer of Thoroton. Again, I have responded to that in some detail already, so I am not proposing to say any more about that.

I will pick up two other points. First, the noble Lord, Lord Bradley, talked about Scotland. The position in Scotland is different. It has a very different sentencing regime from that of England and Wales. The Sentencing Code here, which I have set out, contains the requirements and protections which I have sought to explain. For those reasons, we do not believe that the amendment is necessary; nor, with respect, do we believe we get much assistance in this regard from looking at the Scottish law because there is a very different system for sentencing.

The noble Baroness, Lady Bennett, asked me about the JCHR recommendation. In the time I have had, I have an answer here for her. It is fair to say that it is slightly off-topic. Perhaps she would be happy if I were to write to her on this point, rather than take further time. I will set out the answer in writing; I hope that is acceptable.

For those reasons, we suggest that this is already covered in legislation and in the sentencing guidelines. I invite the noble Lord to withdraw his amendment.

Police, Crime, Sentencing and Courts Bill

Lord Wolfson of Tredegar Excerpts

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

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

My Lords, having heard the noble Lord, Lord Paddick, perhaps I can begin with two confessions. First, I frequently listen to and discuss issues with people with whom I firmly disagree including, on occasion, Members of your Lordships’ House. Secondly, I do not propose to change that approach.

This amendment from the noble Lord, Lord Blencathra, relates to the management of prisoners who have changed their legal gender by obtaining a GRC—a gender recognition certificate. The effect of the amendment would be that a prisoner with a GRC who is convicted of or on remand for a violent or sexual offence would be, and would have to be, held in a prison matching their sex at birth.

I assure the noble Lord, Lord Hunt of Kings Heath, that I and the MoJ take this issue very seriously but, and with no disrespect to any noble Lord whose speech has ranged more widely, we are in Committee on this Bill. I shall confine my remarks to the subject matter of the amendment rather than the broader questions, whether on Stonewall or related topics, interesting and thought-provoking though they were. The Committee will be aware that the MoJ left the Stonewall diversity scheme in June this year, but I reiterate the department’s commitment to diversity in all its diverse forms. Our policy is not driven by ideology; it is driven by compliance with the law of the land and to consider protection for all—I repeat all—the prisoners in our care.

Reference has been made to the 39-page policy. Let me just read what the section under “Outcomes” says:

“The high-level outcomes of the new Policy Framework are intended to strike an appropriate balance, ensuring”


first that:

“All transgender individuals are managed safely with their rights properly respected and in accordance with the law”


and, secondly:

“Decisions are informed by all available evidence and intelligence in order to achieve an outcome that balances risks and promotes the safety of all individuals in custodial settings and approved premises. This includes an assessment of risks presented to and by transgender individuals.”


The Committee will have noted the two references to balance in that section, as pointed out by the noble Baroness, Lady Falkner of Margravine. As the noble and learned Baroness, Lady Butler-Sloss, pointed out, two groups—perhaps at least two, I would say—need respect and understanding in prison. I suggest to the Committee that that policy is correct in law and, I believe, in principle too. With all due deference to my noble friend Lord Cormack, I suggest that it is morally correct as well.

This is about legality, safety and dignity, so in answer to the point put to the Committee by the noble Baroness, Lady Fox of Buckley, no: the world has not gone mad and it is a gross mischaracterisation of government policy to suggest that I or the Government have “no qualms” about letting rapists share living quarters with women. I assume that point was put because the noble Baroness does not understand what the policy is, so let me explain the actual policy to her and to the Committee.

The policy is that transgender prisoners are allocated to a prison matching their legal gender but can be held in a prison opposite to their legal gender where they would otherwise present an unmanageable level of risk to other prisoners. The current policy therefore allows for prisoners with GRCs to be held in a prison matching their sex at birth, where that is appropriate. I can therefore confirm, because I have had this checked, that contrary to the position set out by the noble Lord, Lord Blencathra, there are trans women with GRCs who are now housed in the male estate following the risk assessment process.

The critical point, as pointed out first, I think, by the noble Lord, Lord Pannick, and then adopted by others, is that that policy differs from that suggested by the amendment because the current policy is not a blanket approach. The amendment is a one-size-fits-all approach, or a blunt instrument, as I think the noble Baroness, Lady Chakrabarti, put it. We manage prisoners with GRCs on a case-by-case basis. That is absolutely right, because we want to make sure that there are no assaults in any prison by any prisoner on any other prisoner or, of course, on a member of staff.

The amendment would end the balanced approach. It would mean that a prisoner with a GRC would never be held in the part of the prison estate that matched their acquired gender, even though in some cases this would pose a manageable level of risk and would, on balance, be the safest and most appropriate course of action. It would lead to a prisoner with a GRC having to be kept in a prison that matched their sex at birth, even when that posed an unmanageable level of risk, which would be an utterly bizarre conclusion. It would mean, for example, that a prisoner who had transitioned from female to male and had obtained a GRC would be kept in a women’s prison, even if that posed an unmanageable level of risk to the women they were in prison with. We are very conscious, as my noble friend Lady Meyer pointed out, that women in prison are especially vulnerable. This amendment, I am sure unintentionally, might expose them to greater danger.

It is simply not possible to argue that holding transgender prisoners with GRCs in a prison matching their sex at birth is always necessary and proportionate in every instance. By far the better policy is the policy we adopt, which is to look at matters on a case-by-case basis. I also point out that the amendment applies only to prisoners with GRCs, which most transgender prisoners do not have.

Before I sit down, I will pick up two further points—first, the point from my noble friend Lady Meyer on Amendment 292G. I see that my noble friend Lady Williams of Trafford has come into the Chamber. I think that she or another member of the Home Office team will have the delight of dealing with that amendment on a future occasion and I do not want to steal her thunder on that this evening.

My noble friend Lord Cormack and the noble Lord, Lord Hunt of Kings Heath, said “talk to us”. I started by saying that I am always happy to talk to everyone, and I mean that. However, on this issue, when the most important information to provide is how the policy is operated, I suggest with respect to noble Lords that perhaps the best way forward might be to replicate something we did on the Domestic Abuse Bill and have what I think I called a teach-in from officials, who will be able to provide noble Lords with information and explain how it works. I have been able to check and they would be very happy to do that. We will arrange that in the normal way.

With that explanation of government policy and the offer of the teach-in, I invite the noble Lord to withdraw the amendment.

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[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.

[Baroness Brinton (LD) [V]]

I thank noble Lords for their contributions to this brief debate. The noble Baroness, Lady Newlove, spoke powerfully of the practical impact on victims of these fixated offenders after HDC has happened. I echo her thanks to Claire Waxman and her staff at the London Victims’ Commissioner’s office for their briefing and their assistance.

The noble Lord, Lord Ponsonby, helpfully reiterated the fixated behaviour of these offenders and how it is in their nature to breach orders. All the examples that the three of us have given show that they are likely to do so—and to do so repeatedly.

Police, Crime, Sentencing and Courts Bill

Lord Wolfson of Tredegar Excerpts

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

[Lord Falconer of Thoroton (Lab)]

I accept that the age of criminal responsibility should go up. I strongly endorse what everybody is saying about the Government and, in particular, I endorse what the noble Lord, Lord Marks, is saying about the Government showing leadership in this respect. I also endorse what he says about the Government needing to show leadership in standing out against campaigns that seek to criminalise people under 10 or, in the campaign that he was referring to, between 10 and 12. My point, which I keep coming back to, is that this Committee should not underestimate, or treat as simply got-up, campaigns concerning the justice system, which in some ways expands beyond the criminal justice system, in cases such as the Bulger case.

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

My Lords, these amendments concern youth justice matters. I will address each of them in turn.

Amendment 219B, tabled by the noble and learned Lord, Lord Falconer of Thoroton, would require the centralised monitoring of youth remand decisions made by the court and the laying of a report of findings before Parliament on an annual basis. I understand that the amendment’s purpose is to improve the scrutiny and monitoring of youth remand trends. However, that is precisely what our measures seek to achieve, as I will explain, while leaving the detail of operational processes to the various operational bodies. We think that this is the better way to do it.

The new measures will require the court to be explicit that they have considered not only the two sets of conditions but the interests and welfare of the child. Furthermore, while at the moment the court only has to explain the reason for remand in open court and specify it in the warrant and in the register, our new subsection (5)(za) requires that the court also gives the reasons in writing to the child, their legal representative and the youth offending team, which will enhance the ability of those justice partners to monitor the reasons for custodial remand.

Turning to the specific question put to me by the noble and learned Lord, Lord Falconer, on what arrangements are in place for monitoring courts’ decisions and whether statistics are readily available, as I have said, courts already state in open court their reasons for remanding the child to youth detention accommodation. That information is included on the warrant of commitment and the court register. Pronouncement cards from the Sentencing Council provide guidance to the judiciary on how to do that.

As for statistics, my department already publishes annual statistics on court outcomes on youth remand. The population on remand in the youth custody estate is published monthly. We have new IT systems being developed and, in light of those new systems, we will reconsider the best way to collect, analyse and, so far as is appropriate, publish the information that courts will now be required to provide in writing. However, it is best to leave that granular level of operational process to the entities doing the work on the ground, rather than to prescribe it in statute. Our intentions are certainly aligned. I am sure that the noble and learned Lord will appreciate the need for pragmatism in how best to achieve that.

Amendments 220, 221 and 221ZA seek to raise the age of criminal responsibility from 10 to 12 and to require the Secretary of State to complete a review of the age of criminal responsibility including, as my noble friend Lord Sandhurst explained, an assessment of the protected characteristics of children in detention, under the Equality Act. I listened very carefully to my noble friend and, I think it is fair to say, I set out the position on that in some detail on Monday. With respect, I am not going over that again. I hope I made the Government’s position clear on Monday.

I am grateful to the noble and learned Baroness, Lady Butler-Sloss for raising Amendment 220. I am aware, as she said, that she has brought this to the attention of the House on a number of previous occasions. As far as open ears are concerned, I assure the noble and learned Baroness that my ears are always open. I listened carefully to her speech and the speeches of the noble and learned Lords, Lord Brown of Eaton-under-Heywood and Lord Thomas of Cwmgiedd. I join other noble Lords in wishing the noble Lord, Lord Dholakia, who is absent, a speedy and full recovery.

I will set out the Government’s position on this issue. We believe that setting the age of criminal responsibility at 10 provides flexibility in dealing with children, allowing early intervention with the aim of preventing subsequent offending. Our primary objective when it comes to children, as I have made clear on previous groups, is to prevent children offending in the first place. Where there is offending, we need to provide the police and courts with effective tools to tackle it. Critically, having the age of criminal responsibility at 10 does not preclude other types of intervention—for example, diversion from the criminal justice system—where it would be a more suitable and proportionate response. To that extent, I agree with the noble Lord, Lord German, that diversion from the criminal justice system should be at the heart of how we approach children in the vast majority of cases.

When considering the most appropriate and proportionate response to offending by a young person, the maturity and needs of a child, as well as their age—to make the obvious point, a 12 year-old is not a 17 year-old—are always considered. We also consider protected characteristics in our work, as per the public sector equalities duty. This is borne out in practice. Most children aged 10 to 14 are diverted from the formal criminal justice system or receive an out of court disposal. The number of children aged between 10 and 12 years in the youth justice system has fallen dramatically since 2009, and we are keen for that downward trend to continue. Since 2010, which is more than a decade ago, no 10 or 11 year-olds have received a custodial sentence.

It is, however, important—to this extent, I adopt the remarks of the noble and learned Lord, Lord Falconer of Thoroton—to ensure that, when appropriate, serious offences can be prosecuted and the public protected. The horrific Bulger case has been mentioned by a number of noble Lords and I remember it clearly. I grew up in Liverpool and it shocked my native city to the core. Whether we are talking about the Bulger case or any case involving children, even the most serious, there is a distinct and separate sentencing framework for children aged 10 to 17, which recognises that they have their own specific needs that require a different and more tailored approach. That looks at age, so someone aged 13 is treated differently from someone aged 17 and a half. As noted by the noble Lord, Lord Carlile of Berriew, that pervades the approach of the criminal justice system to children. It is not a matter just of clothing, words or wigs; there is a fundamentally different approach tailored to dealing with children.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

I appreciate that there is a range of ages across Europe. We are at 10; some are at 12; some are at 14; some are at other ages. I have sought to set out why we believe that 10 is the correct age, given the way that our criminal justice system deals with children. I appreciate that what I have said will not have persuaded the noble and learned Baroness, but it is not simply a question of looking at the age but at how the criminal justice system as a whole responds to very young offenders.

As far as the United Nations Convention on the Rights of the Child is concerned, Her Majesty’s Government believe that we are in compliance with our international obligations. Indeed, as the noble and learned Baroness will know, that convention was the subject of a recent Supreme Court decision on the different ways in which England—or to be more precise, the UK—and Scotland, which wants to incorporate it into domestic legislation, have applied that convention.

[Baroness Sater (Con)]

I thank my noble friend the Minister for his response. On the jurisdiction of under-18 year-olds, it does not address the fact that they will not get all the wraparound services and support from the youth court and youth practitioners. Furthermore, if they go to the adult court, they will still not get a referral.

[Lord Wolfson of Tredegar (Con)]

I am grateful to my noble friend for the question, and for taking the time to discuss it with me in the past. Because the offender is 18 at the time of the case and of the sentence, the system has to respond to the fact that they are now adult. It may well be, in some cases, inappropriate to lump that adult in with children. Some sentences and responses that the youth court can give to children would be inappropriate for someone who is now an adult of 18. I suggest that the fact that the court starts with the sentence that would have been appropriate at the time of the offence, and then takes into account all other relevant factors, means that we deal with these cases suitably, bearing in mind the time gap before sentencing during which the offender has reached legal maturity.

[Lord Falconer of Thoroton (Lab)]

My amendment was the monitoring amendment and was not the heat and burden of this debate. I beg leave to withdraw the amendment.

--- Later in debate ---

Moved by

[Lord Wolfson of Tredegar]

222: Clause 139, page 128, line 15, leave out “pupils” and insert “students”
Member’s explanatory statement
This amendment changes “pupils” to “students” to refer to those attending a secure 16 to 19 Academy. No difference of meaning is intended; the change is to avoid confusion arising from the fact that “pupil” is defined in the Education Acts to refer to those attending a school (and a secure 16 to 19 Academy is not a school).

[Lord Wolfson of Tredegar (Con)]

My Lords, Amendments 222 and 223, which I move today on behalf of the Government, are technical amendments to Clause 139, which clarifies that 16 to 19 academies can provide secure accommodation and allows for the establishment and running of secure 16 to 19 academies to be treated as a charitable purpose. The amendments, as can be seen from the Marshalled List, are a technical tweak, and will have no practical impact on the children or young people placed in these secure academies, or on how the academies are run. They are simply there to ensure consistency with other education legislation. “Pupil” is defined in the education Acts to refer to those attending a school; 16 to 19 academies are not, in the legal sense, schools, and “student” is the standard term used in the context of such academies.

I am conscious that this group also contains amendments from the noble Lord, Lord German, on the organisations which can establish a secure school, and from the noble Lord, Lord Ponsonby of Shulbrede, on local authorities’ secure accommodation provisions. I propose, if the Committee finds it helpful, to pause my remarks now, having introduced my amendments, and allow other noble Lords to speak to those amendments, and then I will respond. I see some nodding heads. If that meets with the Committee’s approval, I will sit down, having formally moved my amendments.

[Lord Falconer of Thoroton (Lab)]

I am going to talk about Amendment 223B onwards; Amendment 223A comes first, but I am happy to start with those.

Amendments 223B to 223F have been suggested by the Mayor of London’s office to place a new duty on relevant local authorities in England to convene a new secure accommodation local partnership board that would assess the need for secure accommodation and develop a strategy for tackling any shortfall in secure accommodation. There is, as everybody knows, a significant lack of secure beds in London for young people who come into contact with the criminal justice system. This results in them being dispersed across the country, far away from their families and the professionals committed to their care and well-being.

While this is a particular concern in London, it is also the case in other parts of the country. There are only 15 secure children’s homes in England and Wales, and none in the London area. The recent decision of the Ministry of Justice to remove all children from a key institution detaining young offenders in the United Kingdom—namely, the Rainsbrook Secure Training Centre—meant that more London children were sent away from where they lived. They are being provided with neither the care nor the welfare that they need as vulnerable young people. The recent critical inspection report on the Oakhill Secure Training Centre, alongside the decision to close Rainsbrook, also raises worrying concerns about the future of this type of facility.

It is crucial that such provision is available for those who might be placed there on welfare grounds and for those within the criminal justice system. Amendments 223B, 223C, 223D, 223E and 223F, in the name of my noble friend Lord Ponsonby, give effect to this proposal.

--- Later in debate ---

[Lord German (LD)]

My Lords, I am very grateful to those who have spoken in this short debate. Clearly this amendment is at the centre of this group of amendments. In summing up what everyone has said, I would say that the direction everyone has travelled in is not that these schools or academies should be provided by local authorities, but that they should be given the right to tender to provide those schools or academies.

The judgment that the noble Lord, Lord Carlile, made, was that it does not matter who runs them, providing they get the very best education for these very vulnerable children. The standard of education is what is important, not who runs them. At present, local authorities are excluded simply because there is a view that anything called an “academy” in England cannot be run by a local authority, which seems to create an absolute block to the opportunity for everyone in these institutions to have the best opportunities for life and education.

As the noble Baroness, Lady Chakrabarti, said, these are the most vulnerable of children and young people; their lives and futures are at stake. The noble Baroness, Lady Blower, talked of the qualities of the teachers. These teachers have to be the very best, because they are facing the most difficult of circumstances and it becomes a real challenge. It requires a very special person indeed to devote their life to this sort of education. Where you find the best teachers is in the quality of the tender exercise for these establishments.

Excluding local authorities because they breach the Government’s standard that any academy must not be run by a local authority seems to miss the point. My noble friend Lord Marks talked about the experiment with the rehabilitation companies. A lot of effort went into those. The one thing that was totally absent at the end was the engagement of the charitable and voluntary sector. In other words, because they were driven by having to meet a contract, they were not driven by providing the best service for rehabilitation. Quite rightly, that system has now been overturned.

It drives one to think that, if you have as your goals what is best for the child and what are the best services you can provide, excluding those with the most expertise in this area seems simply crazy. I hope that the Minister will be able to address these matters and take on board the whole point of these amendments, which is not to prescribe local government but to offer it the opportunity where it can compete, providing it can offer the best. What matters is the best for our children, not who should run the service.

[Lord Wolfson of Tredegar (Con)]

My Lords, I first turn to Amendment 223A from the noble Lord, Lord German, which would allow local authorities to “establish and maintain” secure academies and prevent any for-profit corporation doing this.

Dealing with those points in turn, first, we are not aware of any specific legislative barrier to the provision of secure 16 to 19 academies by local authorities. However, it is government policy that academy trusts are not local authority influenced bodies. As a result, no academy in England is operated by a local authority and our position here is to mirror academies’ policies and procedures in secure schools to the greatest extent possible. That said—

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

I am grateful to the Minister for giving way. Has he had regard to Section 6 of the Academies Act, which provides that a local authority must cease to maintain a secure school if it becomes an academy? That seems to have the effect of ruling out local authority involvement, even if it operates in a slightly circuitous way.

[Lord Wolfson of Tredegar (Con)]

It might well be that it operates in a slightly circuitous way. I have not looked at that section myself. Let me look at it after I sit down. If I need to upgrade, so to speak, what I have said, I will write to the noble Lord, because I do not want to understate the position if I have inadvertently done so. I will look at the section later—I hope, today.

The noble Lord, Lord Carlile of Berriew, said that it is not so much about the name of the institution as about what goes on within it. On that, I strongly agree, as I do on the importance of education in this context, especially in the example given by the noble Lord, of somebody who it appears had not had the benefit of any education before. That is therefore especially appropriate.

At the same time as what I said earlier about local authorities, it is right to say that local authorities have a statutory duty to safeguard and promote the welfare of children in their local area. We would therefore expect secure school providers to work closely with local authorities in relation to the well-being of children in their care. It is important to note also that secure children’s homes, which can be run by local authorities, remain an important part of the current and future youth custodial estate.

Let me deal particularly with the profit motive, which seemed to lie at the heart of a number of contributions to this debate. As academies, secure 16 to 19 academies will be state funded with the core charitable purpose of providing education for the public benefit. All academies, including 16 to 19 academies, are part of an academy trust, which is a not-for-profit charitable entity and, as such, cannot make a profit—or, to be more precise, any profits which are made have to be ploughed back into the purpose of the trust. Secure schools will always be run by non-profit organisations. I therefore hope, in light of what I have said, that it will be appreciated that the second part of this amendment, proposed new subsection (9), preventing profit corporations establishing or maintaining these academies, is unnecessary.

On Amendments 223B to 223F, presented to the Committee by the noble and learned Lord, Lord Falconer of Thoroton, I have assumed that these amendments are intended to apply to children looked after by local authorities, but it is worth noting that secure accommodation is used more widely, including for children who are detained by the police and for children who are sentenced or remanded as part of criminal court proceedings.

Local authorities have a duty under the Children Act 1989 to ensure sufficient appropriate accommodation for all the children they look after. I recognise that some local authorities have found it difficult accessing in practice the most appropriate accommodation, particularly for children with the most complex needs. The lack of available and suitable placements for those most vulnerable children is extremely concerning and is something which I and the Government take seriously. We are taking significant steps to support local authorities to fulfil their statutory duties. A programme of work is starting this year to support local authorities to maintain existing capacity and expand provision in secure children’s homes. That means that children can live closer to their previous home and in provision which best meets their needs.

Let me deal specifically with Rainsbrook, to which the noble and learned Lord referred. The situation there is completely unacceptable. We acted decisively to empty the site. All children have now been removed from Rainsbrook. We transferred them to alternative appropriate accommodation within the youth secure estate. We are working through the contractual options with MTC on the future of that contract. When we have completed that work, we will make a further announcement.

In response to the recent concerns about performance at Oakhill, the former Lord Chancellor commissioned Ofsted to undertake a monitoring visit. That took place on 13 September. The report was published within a month, on 11 October, and noted concerns that inspectors had had. Having subsequently attended the centre for a full annual inspection at the beginning of October, Ofsted, together with the Chief Inspector of Prisons and the Care Quality Commission, invoked the urgent notification process at Oakhill on 14 October; that is, within the last month. On the 11th of this month, a response was published to Ofsted and the accompanying action plan, and we are now considering plans to ensure sufficient accommodation for those children at the site.

The spending review announced another £259 million to continue the programme to maintain capacity, expand provision and support local authorities in this regard. There is also the independently-led care review to support improvements to children’s social care and ensure that good practice is applied to every child. That review is expected to be published in the spring. I do not want to pre-empt it now, but we are alive to the particular needs of the children in this cohort.

I have received a note—I will keep my word to look at this matter again later—which indicates that the noble Lord, Lord Marks, may have erred. It is such an astonishing proposition that I will check it for myself later. I am told that he may have nodded in the sense that Section 6 relates to schools being converted to academies. It has no impact on local authorities entering into funding agreements with the Secretary of State. Whether the noble Lord has misunderstood, or whether the note I have been provided with is somewhat cryptic, I will keep my promise to look at it myself later in the day.

[Lord Falconer of Thoroton (Lab)]

The Minister mentioned £259 million in relation to the secure training programme. I may have not quite heard what he said. Is that new money or is it just maintaining the existing amount of money per annum?

[Lord Wolfson of Tredegar (Con)]

My understanding is that the £259 million was announced in the spending review to continue the programme to maintain and expand capacity in both secure and open residential children’s homes. I am not able to say any more than that; it might be a question for my Treasury colleagues to clarify. However, I am also able to clarify it to the noble and learned Lord. Perhaps I can drop him a line on that specific point.

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

Before the Minister sits down and before I admit to nodding, the point he made is why I referred to the operation of Section 6 as being possibly circuitous. It seems that in certain circumstances it may well apply, and it may well apply more generally.

[Lord Wolfson of Tredegar (Con)]

The reason why I did not say it in terms that I was certain that the noble Lord had got it wrong was precisely that point. It seems that we might be approaching this point from different ends, but I will look at it myself and, if necessary, I will drop noble Lords a note. It may not be necessary given what has now been said.

Amendment 222 agreed.

Moved by

[Lord Wolfson of Tredegar]

223: Clause 139, page 128, line 22, leave out “pupils” and insert “students”
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Lord Wolfson of Tredegar at page 128, line 15.

Police, Crime, Sentencing and Courts Bill

Lord Wolfson of Tredegar Excerpts

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

[Lord Falconer of Thoroton (Lab)]

We on this side of the Committee strongly support these excellent amendments. The Youth Justice Board was set up in 1998. Its first chair—a Member of this House, the noble Lord, Lord Warner—gave it a really good start. The whole point is that it gives real drive, not as part of government but within the state, to make changes, because everybody recognises that children and young people have different needs, both to divert them from the criminal justice system and when they are there. Similarly, in respect of women, this is a real opportunity; give it drive.

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

My Lords, as the amendments’ explanatory statements make clear, and as the noble Lord, Lord Marks of Henley-on-Thames, identified, the intention is to provide for the establishment of a women’s justice board for England and Wales which mirrors the rather lengthy provisions setting up the Youth Justice Board. I am grateful to the noble Lord for his kind words. I can assure him that I gave his amendment very careful thought, and my approach to it has not been adversely affected by the support given to it by the noble Baroness, Lady Jones of Moulsecoomb. I also heard what my noble friend Lord Attlee said about his role being to help me: with noble friends being so helpful—well, I will leave that one there.

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[Lord Falconer of Thoroton (Lab)]

My Lords, I join noble Lords in commending the noble Earl for the effort and work that he has put into this and the fact that he has thought it through. I also commend what the noble and learned Lord, Lord Hope of Craighead, said. It was obviously not a detention for training centre that he was passed to, but his experience was successful in diverting him from the criminal justice system. That is an indication that it worked, even if he ended up in the criminal justice system as the Lord President of the Court of Session and a member of the Supreme Court.

I very much agree with what the noble and learned Lord, Lord Hope, the noble Lord, Lord Marks, and the noble Baroness, Lady Jones, said. There are parts of this that we would all agree with. However, we on this side would not support this as a separate sentence. If one looks at the detail, it requires the setting up of a number of rural detention centres. The right thing is for the Government to look at the elements aimed at trying to rehabilitate those in the criminal justice system and use them in the existing system, rather than setting up a whole new network. We admire the noble Earl’s work but think that this is not the appropriate way forward.

[Lord Wolfson of Tredegar (Con)]

My Lords, the amendment from my noble friend Lord Attlee would seek to introduce a new sentence of detention for training at Her Majesty’s pleasure. It is aimed at offenders who are at least 18 and under 27. The key principle is that release would be gradual and dependent on the offender reaching the required performance levels in conduct, education and training. It would be served in training sites in remote rural areas.

I thank my noble friend sincerely for presenting his genuinely interesting idea—I was going to say “novel”, but we have all watched “Yes Minister”. He has done what he said others have not by thinking positively and constructively about what we can do in the future, rather than just criticising what we do now. I think that we all share his desire to reduce the reoffending rate for young adults. Training and education can enable people to turn their lives around and stop reoffending. I reassure my noble friend and the Committee that the Government are already taking action that addresses those issues.

My noble friend is right to be concerned that offenders leave prison illiterate and innumerate and is right to say that that significantly increases the prospects that they will reoffend. We all share those concerns. I can reassure the Committee that many offenders already achieve accredited qualifications in the fundamental basic subjects of English and maths while in prison. We recently published data that shows that, between April 2019 and March 2020, over 30,000 prisoners started English and maths courses and over half of this number completed the courses and received accreditations. Over and above that, many more will also have undertaken vocational training. However, we are not sitting on our laurels. We recognise that there is more to do. We welcome external scrutiny by the Education Select Committee, which has launched an inquiry into prison education, and Ofsted, which recently announced that it will be conducting a review of reading in prisons.

On employment, we want to make sure that the prison education and skills offer for prisoners is aligned with what employers want and need. We know that there is a correlation between getting a job when you come out of prison and not reoffending. We want to prepare prisoners for employment and the Deputy Prime Minister has made that a clear priority. We want to have partnerships with more businesses and build on the work that we already do with companies such as Halfords, Timpson and Willmott Dixon. We are also making sure that the Civil Service plays its part. In the beating crime plan, we have committed to recruiting 1,000 prison leavers into the Civil Service by 2023.

Over and above that, we want to make sure that we have effective community supervision. Not only will that keep the public safer by providing early intervention, it will deflect offenders away from future offending as well. We set out in our sentencing White Paper an agenda of reform for not only punishing but, importantly, rehabilitating low-level offenders. We have set out a number of measures in this Bill as well: problem-solving courts, suspended sentence orders and extending the use of electronic monitoring. I believe that those measures will support offenders to change their lifestyles for good. In that, of course, I share the aims set out by the noble Lord, Lord Marks of Henley-on-Thames, and the noble and learned Lord, Lord Falconer of Thoroton.

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[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.

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[Earl Attlee (Con)]

I would like to quickly pick up on one thing the noble and learned Lord, Lord Hope, touched on, which was the position of a blind juror. I would have no problem at all with a blind juror. I expect that there are blind jurors and that the current legislation in Section 9B already provides for that without any difficulty.

[Lord Wolfson of Tredegar (Con)]

My Lords, this was an especially thoughtful and constructive debate. I agree with the words that the noble Lord, Lord Ponsonby of Shulbrede, used to describe the debate. His reference to the magistrate was interesting, but the problem with all analogies is that they are different. I am going to focus specifically on the jury issue because I recognise that a number of Members of the Committee have made particular points about jurors.

I will start with the point made by the noble and learned Lord, Lord Hope of Craighead, who referred us to the Equality Act; that is an important starting point for the debate, although it may not be the finishing point. We must ensure that the services of the courts are accessible to everyone, including those with disabilities. We must pay due regard to the need to eliminate discrimination and advance equality of opportunity wherever possible. That, in a nutshell, is why Clause 165 is part of the Bill. Having said that, and because I know that this will be a debate that is looked at by those outside this House as well as by those inside it, let me place on record what need not be said but I am going to say it anyway: that everybody in this Committee shares that aim. We heard a very personal example from the noble and learned Lord, Lord Judge, of Lady Judge’s work in this area. Again I say this for the avoidance of doubt where there should not be any: I am proceeding on the basis that all who have questioned or opposed our proposals do so with the very best of motives and certainly not for any other reason.

Trial by jury is a fundamental aspect of our criminal justice system, and serving as a juror is one of the most important civic duties that anyone can be asked to perform. I agree with my noble friend Lord Attlee that it is a duty and not a right, but the Government and I want to ensure that as many people as possibly can perform that duty. Reasonable adjustments can be made by our courts to enable most people with disabilities to complete jury service. This, importantly, includes deaf jurors who can lip-read. I invite the Committee to reflect very carefully on the position of the deaf juror who can lip-read and to consider it in respect of each of the objections that have been put. I will come to some of them to which this would not apply, but a number of the objections would potentially apply to a juror who is deaf but who can lip-read. Nobody else in the court is likely to know how good the lip-reading is, whether the lip-reader gets every nuance, or how lip-reading affects the dynamics either in the jury box or in the jury retirement room.

That is the first point we get from the deaf juror who lip-reads, but there is another point as well: it underlines the proposition that there is no bar in principle to a deaf person serving on a jury. This is about one issue only, which is the 13th—I will come back to the 14th—person in the jury retirement room. That is why we need the legislation, because at the moment it is 12 and no more; I put the jury bailiff to one side. The issue at the moment is that, unlike a lip-reader who, if the judge considers that they can effectively discharge their duties as a juror—which I will come back to—can serve on a jury, a juror who needs a British Sign Language interpreter is unable to get that assistance because entry to the deliberation room is limited to the jurors, and no one else may enter. The essential point that this clause focuses on is permitting the BSL interpreter to go in, thereby enabling that juror to fulfil their duty.

I recognise that there have been what I might call practical, and almost philosophical, principled objections and concerns raised about the proposal. I note that the Bar Council of England and Wales has expressed its support, subject, it is fair to say, to the right safeguards, which I believe we have in place. I reassure the Committee that we considered the safeguards very carefully in developing the legislation. We looked at research and current practice in the USA, New Zealand, the Republic of Ireland—which is planning to legislate for this form of interpretation—and Australia, where provision is already made for BSL interpreters or the equivalent in its jury systems.

I will first deal with the philosophical or principled objections. I understand the reservations that this might undermine the jury deliberation process, and I understand the argument, although I do not accept it, that interpreters could unduly influence or impact the dynamic of the discussions. There has been a lot of research, particularly in New South Wales, to explore whether deaf people can sufficiently access court proceedings and make informed decisions as jurors. The research suggests that deaf jurors are not hindered from speaking during deliberations and that other jurors seemingly have no issue with the presence of the interpreter or interacting with the deaf juror.

We have put safeguards in the Bill to help to address these issues. Offences relating to research and sharing research during the trial will apply as much to the interpreter as they do to the jurors. As has been pointed out, there is a new offence whereby an interpreter intentionally interferes in or influences the deliberations of the jury or proceedings before the court. I have said “interpreter”, but I accept, as the noble Lord, Lord Pannick, pointed out—I acknowledge my gratitude to him and others for sparing time to discuss this with me—that there will be two BSL interpreters present in the jury deliberation room, not only because they need to switch over as it is a very intensive process for the interpreter but because it has the benefit that they will be able to monitor each other and maintain a consistently high quality of interpretation. To take the point of the noble Lord, Lord Thomas of Gresford, I say that the nuances will be as much picked up by the sign language interpreters as we can anticipate—or not—that they will be picked up necessarily by a lip-reader.

I agree with the noble and learned Lord, Lord Judge, that the jury room is not just confidential but also private; those things are different, and it is both. There is no intention to allow the academics or the researchers in. There is certainly no intention to move from what I think in the judicial review context is called “the judge over your shoulder” to the Minister standing over the juror’s shoulder. We are certainly not going there.

The interpreters will be bound by a confidentiality agreement and be bound by law, and there is an offence to keep everybody honest. They will also be required to swear an oath or affirmation to that effect, alongside their existing interpreter’s oath or affirmation.

I turn to the practical concerns around the nature of evidence and whether a deaf juror will be able to interpret facial expressions, together with audio evidence, effectively. Again, I heard the example from the noble and learned Lord as to how something was said in a tone of complete resignation. The word used in the Act, and in this clause, is “effectively”. The judge would have to decide whether the juror could effectively discharge their role as a juror. This provision does not require judges to admit such jurors on to the jury; it simply removes the blanket ban that would otherwise be present. It means that jurors who need a BSL interpreter can be considered alongside other jurors for whom other reasonable adjustments might be required.

The ultimate decision will be for the trial judge, who will take into account the nature of the case and the nature of the evidence that is going to be heard. No doubt he or she would want to hear submissions from the parties, although they would not be bound by them. As I have said, none of this is new. Again, I ask the Committee to consider how the trial judge should deal with a juror who says, “Well, I lip-read.” The trial judge, again, would have to consider what the evidence in the case was going to be and whether they were going to be able to fulfil their role effectively. There is no difference in principle, and the test and approach of the judge would have to be the same.

I accept that there will be cases where a deaf person would not be able to serve on a jury. I expect that there will be cases where a lip-reading juror might not be able to serve on a jury—for example, if the evidence is audio only and there is nobody to look at; there is just a telephone call playing.

[Lord Pannick (CB)]

I ask this question out of ignorance. Can the Minister confirm what the noble Lord, Lord Thomas of Gresford, said, which is that a BSL interpreter does not interpret in the way that a foreign-language interpreter would, but rather attempts to summarise the gist or essence of what has been said?

[Lord Wolfson of Tredegar (Con)]

I was going to come to that point, but let me deal with it now. BSL is treated as a language. It has its own grammatical structure and syntax; it is recognised as a minority language in the UK. There is not a sign for every word, but words can be spelled out where a sign is not possible. The noble Lord and I have both had cases where we have had simultaneous foreign language interpretation. It is also the case that not every word in every language is easily translatable into another language. Certainly, we have looked at that point, and we do not think that that should be a bar to a deaf juror effectively participating in a jury. For these purposes, BSL is sufficient to enable the juror to participate effectively, but depending again on the nature of the case, that may be a factor in a particular case which the judge would want to take into account.

It is important to start from the proposition that everyone should be able to serve as a juror unless there are good reasons to believe that they would be unable to do so effectively. I underline that word “effectively” in the instant case. I come back to the fact that deaf jurors who can lip-read serve successfully, and we do not believe that there is a reason why there should be a blanket ban on jurors who need BSL interpreters to serve.

Picking up some other points, the noble and learned Lord, Lord Judge, asked about the obligation point and whether there would be a special dispensation. No, there would not be a special dispensation. Like any other juror, the deaf juror who needed a BSL interpreter would have to ask for permission to be excused. Of course, given that the judge would also be considering whether they could effectively participate, perhaps the anterior question would be their effective participation, and then the question would arise as to whether they could be excused. That would also apply, of course, to any other juror who was a lip-reader. One would imagine that a judge would be sympathetic to a lip-reading juror who might say to the judge, “I know that I can serve, but I am very concerned that I might miss something. My lip-reading is good, if not 100%, but I would rather not serve.” Ultimately, however, that would be up to the judge. There would not be a special dispensation.

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Moved by

[Lord Wolfson of Tredegar]

243: Clause 167, page 187, line 13, after “court” insert “and tribunal”
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Lord Wolfson of Tredegar at page 187, line 17.

[Lord Wolfson of Tredegar (Con)]

My Lords, these amendments in my name make two straightforward revisions which will allow these provisions to operate more effectively and support the principle of open justice across our courts and tribunals. Let me divide them into two groups.

Amendments 243, 244, 245, 248 to 261 inclusive and 325 expand the scope of Clauses 167 and 168 so they apply to all of our courts, tribunals and all bodies that exercise the judicial power of the state, with the exception of the Supreme Court, for which there has already been separate provision, and devolved courts and tribunals, for obvious reasons. This is an important amendment. It ensures that all jurisdictions may use these powers to provide transmissions of proceedings to remote observers in order to uphold the principle of open justice, subject, of course, to further regulation, guidance and judicial discretion.

Digital technologies have become mainstream, even in our smaller and what might be called more obscure jurisdictions. It is now evident that these powers should not be limited to HMCTS courts and tribunals but would be best made effective in all courts and tribunals. Importantly, that also ensures that the offence of making unauthorised recordings or transmissions of proceedings is applied universally across our entire justice system and not just in specific jurisdictions. This will shorten the length of the Bill by around six pages by removing the need for a distinct schedule for tribunals. I was going to add, “making this legislation simpler”, but that might test the patience of the Committee.

Ensuring that our courts and tribunals are as open and transparent as they can be is an ongoing task. The president of the Family Division, Sir Andrew McFarlane, recently published his review of transparency in the family courts. With respect to the president, it is right to say that that was a phenomenal piece of work, which has been well received. The remote observer clauses in this Bill are in harmony with his recommendations, as the Bill allows transparency by permitting journalists to observe family hearings remotely if they cannot attend in person.

The second part of this group of amendments, Amendments 246, 247, 262, 324, and 329, provide technical amendments so that the secondary legislation to enable these powers may be introduced on time. Let me explain what I mean by that. The remote observation provisions in the Bill are intended to replace the temporary and less extensive powers in the Coronavirus Act. They have been vital in allowing our courts to administer justice effectively and transparently during the Covid-19 pandemic.

We want to make sure that there is no gap in the legislative cover. It has therefore become necessary to ensure that these new powers can be enabled in secondary legislation before the date that the existing legislation expires. With this Bill now not expected to receive Royal Assent until only shortly before that date, these amendments take the necessary step of allowing the enabling secondary legislation for these powers to be introduced by the made affirmative procedure. These amendments therefore provide that legislation is continually in place to uphold open justice in remote hearings.

As this morning, I am aware that the group contains amendments from other noble Lords, so I will pause there to allow them to introduce their amendments. I beg to move.

[Lord Pannick (CB)]

I shall speak to Amendment 259B in my name and those of the noble Lord, Lord Marks, and the noble and learned lord, Lord Judge.

Clause 169(2) would allow a jury to be in a different physical location from the judge, so long as all 12 members of the jury are in the same place as between themselves. I am very concerned about this proposed power. In order to ensure the effective management of a criminal trial, a judge needs to be in the same room as a jury. The judge needs to be able to communicate effectively with the members of the jury. The judge needs carefully to watch the jury to see that they are focused and ensure that their needs are addressed. The judge needs carefully to watch the relationships between the 12 members of the jury. The jury needs to be able to communicate speedily and easily with the judge if it has any particular issue that it wants to raise. Members of the jury need to be able to study the witnesses giving evidence—what they say, what they do not say, and their body language and facial expressions while doing so. All this is so much more difficult through a computer screen, as we have all discovered, whether through court proceedings or parliamentary proceedings, during the pandemic.

I have had very helpful discussions with the Minister about this matter, and I am very grateful to him and thank him for those discussions and the time that he has devoted to them. I understand from him that the Government have no plan to encourage the use of remote juries. Instead, as I understand it, the Government believe that this would be a useful power essentially for three reasons: we may be afflicted by another pandemic; there may well be advances in technology; and, in any event, this power may be useful today if a judge and lawyers, for example, go on a site visit and one or more members of the jury is physically disabled, in which case the site visit can be watched by the whole jury online. That is the example that the Minister gave me.

I have to say that I find these justifications unpersuasive. I am always suspicious of broad powers being taken in legislation “just in case”. I certainly do not doubt the Minister’s good faith, but his assurances as to what is intended to be done under this proposed power do not bind—cannot bind—his successors in office to what he has done; they may have very different proposals or intentions as to the use of these powers. With great respect, the site visit example is, I think, very far-fetched. I am not aware of any such problem in any case in recent years, if ever.

In any event, if Ministers think that provision should be made for such a limited, specific use of remote hearings, with juries in a different place to the judge and the defendant, let it be made clear in the drafting of the clause that a remote hearing cannot take place with the jury in splendid isolation from the judge, the witnesses and the defendant in relation to the hearing of oral evidence, the submissions of counsel or the summing-up by the judge.

Although they have not yet been spoken to, I express my support for Amendments 259A and 259B, both of which concern aspects of the proposed power to be conferred on the court to require a person, including a defendant, to take part in proceedings by audio or video link. I can well understand that this may be a useful power for a preliminary hearing, but not for a substantive trial, unless the defendant consents to that. I am very unhappy about this in relation to young persons.

There are real issues as to whether a defendant would have effective access to a hearing, were his or her presence to be remote, and real concerns as to whether they could effectively communicate with their legal representatives. The Ministry of Justice may be hoping to save some money if it does not need to transport defendants from prison to court, but I am doubtful that it will save much money because it will need to invest in very high-quality computer systems. In any event, I fear the price will be a reduction in the quality of justice, and that price is too high.

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[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful again to the Committee for a very interesting and wide-ranging debate. I thank my noble friend Lord Deben for the most back-handed compliment I have ever received and assure him that, when it comes to justice, I absolutely subscribe to the proposition that justice must be not only done but seen to be done. That reminds me to underline what Clauses 167 and 168 are about: they are about justice being seen to be done. These clauses do not mandate remote hearings; that is for a judge to decide. What they do is permit remote observation of those hearings, which underpins open justice.

When we look at issues such as this, we need to bear in mind that the days when the local newspaper would send people to sit at the back of the Crown Court or magistrates’ court are long gone. In the real world, you will have greater transparency if you have a live feed to journalists from the courtroom than if you say, “You’ve got to come along and take a note”. They simply do not any more, and I am concerned with making sure that we actually have open justice and that it is not just something we talk about.

Amendments 245A and 245B seek to prohibit those transmissions being made to remote observers in all cases where a child is among the parties. Amendment 259A similarly seeks to remove children from the application of Clause 169, which is about video and audio links in criminal proceedings. It would prevent the court, as a blanket ban, from making a direction to enable any participant in a hearing to attend by live link where a child is party to proceedings.

I absolutely agree with the intention of safeguarding children in our courts. We have debated that point in a number of areas of this and other Bills, but I suggest that these amendments are both ineffective and unnecessary. They are unnecessary because we already have in place sufficient tried and tested legislation and guidance to safeguard the privacy of children in these proceedings. Section 47(2) of the Children and Young Persons Act 1933 prevents anyone being present at a youth court hearing except members of the court, parties and participants, accredited media representatives or specifically authorised persons.

In other courts, procedure rules provide that it is legitimate to hold a hearing in private

“to protect the interests of any child or protected party”.

Courts have a statutory duty to have regard to the welfare of children. Judges, magistrates and tribunal members retain judicial discretion over whether a case is to be heard in private, with full consideration of their duty to protect minors or other vulnerable parties, where necessary. The ineffective or counterproductive point is that there may be cases where it is beneficial for a child, whether as a witness or a defendant, to participate by live link. If one is focusing on cases where children can be affected, one also has to bear in mind that there are lots of cases which affect children where a child is neither a party, nor a witness, nor physically involved at all.

Clause 169, as drafted, gives courts the flexibility to make decisions to direct remote participation where it is considered in the best interests of child participants to do so. I draw the Committee’s attention to the word “may” in the first line of subsection (1) in new Section 51. It is vitally important that we continue to protect children. That is why we have built these safeguards into our provisions.

Amendment 259B, which I think the noble Lord, Lord Pannick, spoke to first, seeks to exclude juries from the provisions in Clause 169 that enable a jury assembled together to participate in a trial through a live video link, where appropriate and deemed to be in the interests of justice. The Committee is entitled to a clear statement from the Dispatch Box and I will make one: there is absolutely no intention for this to become a regular feature of trials, with the jury sitting in one room and the judge and the witnesses in another room. As the noble and learned Lord, Lord Hope of Craighead, reminded us, Scotland did put that provision in during the pandemic—I think cinemas were used, so that everything was on a big screen and the audio was very good. That was done in response to the pandemic, and this measure is a future-proofing measure.

I hear what my noble friend Lord Deben says about that and about civil servants tapping Ministers on the shoulder, but, since the pandemic, we have witnessed big changes in how we run our jury system. We have seen —and here I pay my respects again to judges and all others involved in the justice system, who have worked extremely hard to do this—suitable procedures put in place. But we have also seen how legislation tied our hands during an emergency and impeded our ability to progress quickly and make full use of the technological options open to us. We do not want that to happen again. Clause 169 is designed to provide courts with the flexibility to keep pace with new technology as it develops.

As the noble Lord, Lord Pannick, said, that is the second reason for this clause. Technology is developing in ways that we could not have imagined a few years ago, and we have no idea where it will take us in the future. We want to be sure that we have a statutory basis to take advantage of technology as it develops, so that we can provide a justice system that is fit for the century that we live in and for the way that people live their lives. Those are the two main justifications for Clause 169.

I gave the noble Lord the example of a site visit. Again, I make clear that this is not the main justification for it, but it is important if one has a jury with a disabled person on it. The idea is shocking that, in 2021 a disabled person could be told that they cannot sit on a jury because, at some point during the three-week trial, it will look at the locus in quo, which is a room at the top of a winding staircase, and they cannot climb the stairs. The whole thing could be done very effectively via video, and so that is not a reason to stop them serving on a jury.

[Lord Pannick (CB)]

I am grateful to the Minister. Can he say whether there has ever been such a case?

While I am on my feet, I have another question. The Minister mentioned that technology may develop. I think the concern from those of us who have doubts about this proposal is not advancing technology but human communication. However good the technology becomes, there is still a vital distinction between watching proceedings on a screen and being in the same room as other people. I suggest to the Minister—this is certainly my experience and, I think, the experience of most lawyers and judges—that, although the courts have worked wonders during the pandemic, they have recognised the inferiority of any system that is within our contemplation by means of technology compared with being the same room. The ability to communicate and have an interchange with other people is manifestly weakened by having to do it over a screen.

[Lord Wolfson of Tredegar (Con)]

Absolutely. I do not disagree that face to face is better; no doubt that is what we all feel in this Committee—that it operates much better when we are in the same room than it did when it was all on screens. I absolutely accept that. Let me give an example. Before I became a Minister, I did a three-week trial entirely on screen, with witnesses around the world. After about a day, you forget, and you get used to the new system.

I am not saying that we want this clause here because screens are better; we want this clause in the Bill because screens may be necessary if we have another pandemic and because we do not know where technology is going to go. I do not want to get too techy about it, but there is a very real difference between watching a screen in the sense of a computer monitor and some of the things that I have seen in banks, where there is a big screen down the middle of a table and six or seven of you sit in a row and look at it, while the people you are talking to have the same thing in their office. After about half an hour, you really feel that they are on the opposite side of the table to you. Again, I am not suggesting that that is suitable for courts, but it is an example of how technology can, and will, develop. We want to future-proof it, as I have said.

Amendment 259BA would require anyone taking part in any sort of criminal hearing via live link to submit to a prior assessment of their physical and mental health before the court could consider whether it is appropriate for them to take part in criminal proceedings over a live link. I share the concern of the noble Lord that we must ensure that audio and video links are used appropriately. Again, we have built safeguards into Clause 169, setting out procedures and guidance that courts must follow. The court must decide whether it is in the interests of justice; that includes taking the views of the person who would attend by live link on whether they can participate effectively in the proceedings. The clause also requires that the parties have an opportunity to make representations to the judge.

I also point out that, although the intention behind the amendment is understandable, perhaps even laudable, in practice, it could prevent or deter some people from using a facility that could help them to participate in hearings with as little distress, inconvenience and delay as possible. I therefore urge noble Lords not to press their amendments.

Amendment 243 agreed.

Moved by

[Lord Wolfson of Tredegar]

244: Clause 167, page 187, line 15, leave out “the court” and insert “a court or tribunal”
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Lord Wolfson of Tredegar at page 187, line 17.

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Moved by

[Lord Wolfson of Tredegar]

245: Clause 167, page 187, line 17, leave out from “applies” to end of line 25 and insert “(subject to subsections (10) and (11)) to proceedings in any court; and in this section “court” has the same meaning as in the Contempt of Court Act 1981 (see section 19 of that Act).”
Member’s explanatory statement
This amendment expands new section 85A of the Courts Act 2003 so as to cover all “courts” within the meaning of the Contempt of Court Act 1981 (which include tribunals and other judicial bodies).

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Moved by

[Lord Wolfson of Tredegar]

246: Clause 167, page 188, line 15, leave out from “regulations” to end of line 16
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Lord Wolfson of Tredegar at page 188, line 25.

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Moved by

[Lord Wolfson of Tredegar]

256: Clause 168, page 190, line 26, at end insert—
“(10A) This section does not apply to proceedings in the Supreme Court.(10B) This section does not apply to court proceedings if provision regulating the procedure to be followed in those proceedings could be made by—(a) an Act of the Scottish Parliament,(b) an Act of Senedd Cymru (including one passed with the consent of a Minister of the Crown within the meaning of section 158(1) of the Government of Wales Act 2006), or(c) an Act of the Northern Ireland Assembly passed without the consent of the Secretary of State.” Member’s explanatory statement
This amendment provides that Supreme Court proceedings and court or tribunal proceedings within devolved competence do not fall within the expanded scope of new section 85B of the Courts Act 2003 (as brought about by the amendments in the name of Lord Wolfson of Tredegar at page 190, lines 27 and 28).

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Moved by

[Lord Wolfson of Tredegar]

260: Schedule 19, page 281, line 12, leave out paragraphs 1 to 3
Member’s explanatory statement
This amendment (together with the amendment in the name of Lord Wolfson of Tredegar at page 188, line 28) removes provision that is unnecessary as a result of the amendment in the name of Lord Wolfson of Tredegar at page 187, line 17.

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Moved by

[Lord Wolfson of Tredegar]

262: After Clause 170, insert the following new Clause—
“Expedited procedure for initial regulations about remote observation of proceedings
(1) This section applies in relation to the first regulations made under section 85A(8) of the Courts Act 2003 (as inserted by section 167(1)).(2) The regulations may be made without a draft of the instrument containing them having been laid before and approved by a resolution of each House of Parliament (notwithstanding section 108(3) of the Courts Act 2003).(3) If regulations are made in reliance on subsection (2), the statutory instrument containing them must be laid before Parliament after being made.(4) Regulations contained in a statutory instrument laid before Parliament under subsection (3) cease to have effect at the end of the period of 28 days beginning with the day on which the instrument is made unless, during that period, the instrument is approved by a resolution of each House of Parliament.(5) In calculating the period of 28 days, no account is to be taken of any whole days that fall within a period during which—(a) Parliament is dissolved or prorogued, or(b) either House of Parliament is adjourned for more than four days.(6) If regulations cease to have effect as a result of subsection (4), that does not—(a) affect the validity of anything previously done under or by virtue of the regulations, or(b) prevent the making of new regulations.”Member’s explanatory statement
This enables the first regulations made for the purposes of new section 85A of the Courts Act 2003 as inserted by Clause 167 (which, in particular, will specify types of court or tribunal proceedings in which remote observation directions will be available) to be made subject to the ‘made affirmative’ procedure rather than the normal affirmative procedure.

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

My Lords, we welcome this amendment and the opportunity to discuss restorative justice. We are very grateful to the noble Lord, Lord Coaker, for relaying the views of the noble Baroness, Lady Meacher, who has a long-held commitment to restorative justice that is well known.

We fully support the amendment and are concerned that the Government should take in how important restorative justice is felt to be in this House. This debate has given us the opportunity to make that clear. We were privileged to have the explanation of the reasons for restorative justice and the comprehensive account of its birth and development from my noble friend Lady Harris, who set out, from her experience of police work and as a magistrate, how restorative justice has developed and its value.

The amendment is important because we—some of us, anyway—have concerns that, although there is this commitment around the House, there may be a danger of progress stalling. That is why it is so important that there should be a call for the preparation of an action plan, that it should be laid before Parliament and that there should be a report on the progress on restorative justice.

Members of the House will have been interested to hear the account of the noble Viscount, Lord Brookeborough, on how restorative justice developed in Northern Ireland from a state of great hostility, where real potential enemies were confronting each other, and how restorative justice became reflective of community justice as perpetrators and victims came into contact. He made the point that this was very much not a soft option but was victim based, and that analysis from the circumstances in Northern Ireland was, I felt, reflected by the analysis of my noble friend Lord Paddick, who gave the history of restorative justice in London and dealt with the achievement of victim satisfaction and, interestingly, a greater feeling of safety on the part of victims. He also talked of the benefit for perpetrators in the contact between the victim and the perpetrator; that was a point made by the noble Lord, Lord Blunkett, who was one of the signatories to the amendment.

I will be very interested—we will be very interested—to hear the Government’s response, which we hope will give us an indication that the Government take restorative justice as seriously as the speakers this evening do and that their commitment to it will be increasing and continuing.

[Lord Wolfson of Tredegar (Con)]

My Lords, I thank the noble Lord, Lord Coaker, for proposing the amendment in the name of the noble Baroness, Lady Meacher, who is unable to be with us this evening. She spoke eloquently at Second Reading about the benefits of restorative justice, and I am very sorry that she is not in her place this evening. I am sure that I speak for the whole Committee in wishing her well. She did, however, have a meeting with me on this topic, and I record my thanks to her for her time and for the discussion. She expressed concern that the Bill did not include provision for restorative justice. The amendment is trying to fill that perceived gap by requiring the Home Secretary and the Justice Secretary to publish an action plan for restorative justice every three years.

I am grateful to the noble Baroness, Lady Harris of Richmond, for her support for restorative justice. I agree that, in the right circumstances, it can have far-reaching benefits. I have heard and felt the mood of the Committee on this point, but the truth is that I did not really need any persuading as to the importance of restorative justice. It can bring those harmed by a crime and those responsible for that harm into communication, and it can help everyone affected by the crime to play a part in repairing the harm; that is commendable. The Government support restorative justice where it can be suitably used.

However, with respect to the noble Baroness, Lady Bennett of Manor Castle, I would draw a distinction between civil cases and criminal cases. We have to remember that in a civil dispute—this is part of the answer to the road traffic point, but I will write to my noble friend as well—there are two parties before the court. I can settle my case on whatever terms I want if the other person agrees. When it comes to crime, there is a public interest; we prosecute in the name of the public. We do not allow victims to determine always whether the offender serves a punishment or not. I am not saying that restorative justice is not applicable, but we have to remember that there is a different set of criteria and principled underpinnings to our civil justice system and our criminal justice system.

Police, Crime, Sentencing and Courts Bill

Lord Wolfson of Tredegar Excerpts

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

Moved by

[Lord Wolfson of Tredegar]

1: After Clause 2, insert the following new Clause—
“Required life sentence for manslaughter of emergency worker
(1) The Sentencing Code is amended in accordance with subsections (2) to (15). (2) In section 177 (youth rehabilitation orders), in subsection (3)(b)(i), after “258” insert “or 258A”.(3) In section 221 (overview of Part 10), in subsection (2)(b), for “section 258” substitute “sections 258 and 258A”.(4) In section 249 (sentence of detention under section 250), in subsection (2)(a), for “section 258” substitute “sections 258 and 258A”.(5) In section 255 (extended sentence of detention), in subsection (1)(d), after “258(2)” insert “or 258A(2)”.(6) After section 258 insert—“258A Required sentence of detention for life for manslaughter of emergency worker(1) This section applies where—(a) a person aged under 18 is convicted of a relevant offence,(b) the offence was committed—(i) when the person was aged 16 or over, and(ii) on or after the relevant commencement date, and(c) the offence was committed against an emergency worker acting in the exercise of functions as such a worker.(2) The court must impose a sentence of detention for life under section 250 unless the court is of the opinion that there are exceptional circumstances which—(a) relate to the offence or the offender, and(b) justify not doing so.(3) For the purposes of subsection (1)(c) the circumstances in which an offence is to be taken as committed against a person acting in the exercise of functions as an emergency worker include circumstances where the offence takes place at a time when the person is not at work but is carrying out functions which, if done in work time, would have been in the exercise of functions as an emergency worker.(4) In this section “relevant offence” means the offence of manslaughter, but does not include—(a) manslaughter by gross negligence, or(b) manslaughter mentioned in section 2(3) or 4(1) of the Homicide Act 1957 or section 54(7) of the Coroners and Justice Act 2009 (partial defences to murder).(5) In this section—“emergency worker” has the meaning given by section 68;“relevant commencement date” means the date on which section (Required life sentence for manslaughter of emergency worker) of the Police, Crime, Sentencing and Courts Act 2021 (required life sentence for manslaughter of emergency worker) comes into force.(6) An offence the sentence for which is imposed under this section is not to be regarded as an offence the sentence for which is fixed by law.(7) Where an offence is found to have been committed over a period of 2 or more days, or at some time during a period of 2 or more days, it must be taken for the purposes of subsection (1)(b) to have been committed on the last of those days.”(7) In section 267 (extended sentence of detention in a young offender institution), in subsection (1)(d), for “or 274” substitute “, 274 or 274A”.(8) In section 272 (offences other than murder), in subsection (2)(b), for “or 274” substitute “, 274 or 274A”.(9) After section 274 insert—“274A Required sentence of custody for life for manslaughter of emergency worker(1) This section applies where— (a) a person aged 18 or over but under 21 is convicted of a relevant offence,(b) the offence was committed—(i) when the person was aged 16 or over, and(ii) on or after the relevant commencement date, and(c) the offence was committed against an emergency worker acting in the exercise of functions as such a worker.(2) The court must impose a sentence of custody for life under section 272 unless the court is of the opinion that there are exceptional circumstances which—(a) relate to the offence or the offender, and(b) justify not doing so.(3) For the purposes of subsection (1)(c) the circumstances in which an offence is to be taken as committed against a person acting in the exercise of functions as an emergency worker include circumstances where the offence takes place at a time when the person is not at work but is carrying out functions which, if done in work time, would have been in the exercise of functions as an emergency worker.(4) In this section “relevant offence” means the offence of manslaughter, but does not include—(a) manslaughter by gross negligence, or(b) manslaughter mentioned in section 2(3) or 4(1) of the Homicide Act 1957 or section 54(7) of the Coroners and Justice Act 2009 (partial defences to murder).(5) In this section—“emergency worker” has the meaning given by section 68;“relevant commencement date” means the date on which section (Required life sentence for manslaughter of emergency worker) of the Police, Crime, Sentencing and Courts Act 2021 (required life sentence for manslaughter of emergency worker) comes into force.(6) An offence the sentence for which is imposed under this section is not to be regarded as an offence the sentence for which is fixed by law.(7) Where an offence is found to have been committed over a period of 2 or more days, or at some time during a period of 2 or more days, it must be taken for the purposes of subsection (1)(b) to have been committed on the last of those days.”(10) In section 280 (extended sentence of imprisonment), in subsection (1)(d), for “or 285” substitute “, 285 or 285A”.(11) After section 285 insert—“285A Required life sentence for manslaughter of emergency worker(1) This section applies where—(a) a person aged 21 or over is convicted of a relevant offence,(b) the offence was committed—(i) when the person was aged 16 or over, and(ii) on or after the relevant commencement date, and(c) the offence was committed against an emergency worker acting in the exercise of functions as such a worker.(2) The court must impose a sentence of imprisonment for life unless the court is of the opinion that there are exceptional circumstances which—(a) relate to the offence or the offender, and(b) justify not doing so.(3) For the purposes of subsection (1)(c) the circumstances in which an offence is to be taken as committed against a person acting in the exercise of functions as an emergency worker include circumstances where the offence takes place at a time when the person is not at work but is carrying out functions which, if done in work time, would have been in the exercise of functions as an emergency worker.(4) In this section “relevant offence” means the offence of manslaughter, but does not include—(a) manslaughter by gross negligence, or(b) manslaughter mentioned in section 2(3) or 4(1) of the Homicide Act 1957 or section 54(7) of the Coroners and Justice Act 2009 (partial defences to murder).(5) In this section—“emergency worker” has the meaning given by section 68;“relevant commencement date” means the date on which section (Required life sentence for manslaughter of emergency worker) of the Police, Crime, Sentencing and Courts Act 2021 (required life sentence for manslaughter of emergency worker) comes into force.(6) An offence the sentence for which is imposed under this section is not to be regarded as an offence the sentence for which is fixed by law.(7) Where an offence is found to have been committed over a period of 2 or more days, or at some time during a period of 2 or more days, it must be taken for the purposes of subsection (1)(b) to have been committed on the last of those days.”(12) In section 329 (conversion of sentence of detention to sentence of imprisonment), in subsection (7)(a), after “258” insert “or 258A”.(13) In section 399 (mandatory sentences), in paragraph (b)(i)—(a) for “258, 274 or 285” substitute “258, 258A, 274, 274A, 285 or 285A”;(b) omit “dangerous”.(14) In section 417 (commencement of Schedule 22), in subsection (3)(d), for “and 274” substitute “, 274 and 274A”.(15) In Schedule 22 (amendments of the Sentencing Code etc)—(a) after paragraph 59 insert—“59A_ In section 285A (required life sentence for manslaughter of emergency worker), in subsection (1)(a), for “21” substitute “18”.”;(b) in paragraph 73(a)(ii), after “274” insert “, 274A”;(c) in paragraph 101(2), after “274,” insert “274A,”.(16) In section 37 of the Mental Health Act 1983 (powers of courts to order hospital admission or guardianship)—(a) in subsection (1A)—(i) after “258,” insert “258A,”;(ii) after “274,” insert “274A,”;(iii) for “or 285” substitute “, 285 or 285A”;(b) in subsection (1B)—(i) in paragraph (a), after “258” insert “or 258A”;(ii) in paragraph (b), for “or 274” substitute “, 274 or 274A”;(iii) in paragraph (c), for “or 285” substitute “, 285 or 285A”.”Member’s explanatory statement
This amendment inserts into the Sentencing Code provisions that require a court to impose a life sentence on an offender who is convicted of unlawful and dangerous act manslaughter against an emergency worker acting in the exercise of their functions as an emergency worker.

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

My Lords, it is my pleasure to open the debate on the Report stage of this Bill. I stand to add the proposed new clause, after Clause 2, as printed on the Marshalled List.

This amendment, known as Harper’s law, will impose mandatory life terms on those who are convicted of unlawful act manslaughter, where the victim is an emergency worker who is acting in the exercise of their functions as such a worker. The amendment will apply to adult offenders, and to 16 and 17 year-olds. As the House will see, it contains a judicial discretion for the court to impose an alternative sentence in exceptional circumstances.

It may assist noble Lords if I provide a brief overview of manslaughter—I do not propose to turn this into a lecture—and the manner in which this amendment will work. The amendment applies to those convicted of manslaughter, but the proposed new Sections 258A(4), 274A(4) and 285A(4) of the Sentencing Code are provisions to explicitly exclude those convicted of gross negligence manslaughter, as well as those convicted of manslaughter following a successful partial defence to a charge of murder—for example, manslaughter by reason of diminished responsibility, loss of control or in pursuance of a suicide pact. As a result and by process of statutory elimination, the provisions will apply only to those who have been convicted of manslaughter by an unlawful and dangerous act, more commonly referred to as “unlawful act manslaughter”.

The Government are making this amendment following the death of PC Andrew Harper in August 2019. I am sure the House is familiar with the horrific facts of that case. PC Harper was responding to reports of the attempted theft of a quad bike. He suffered fatal injuries when he became caught in a strap trailing behind a getaway car and was dragged behind it. At their trial in July 2020, PC Harper’s three killers were acquitted of murder but were all convicted of unlawful act manslaughter.

The jury was therefore satisfied that the unlawful and dangerous actions of the defendants, namely the plan to steal the quad bike and then escape apprehension by whatever means possible, including driving dangerously along winding country roads, amounted to manslaughter. The court did not impose life sentences on any of the defendants. Each received sentences of between 13 and 19 years for the manslaughter of PC Harper, sentences that were subsequently upheld by the Court of Appeal. They will therefore all be incarcerated for a significant period. But the Government believe that, where a person is convicted of unlawful act manslaughter, and the person who has been killed is an emergency worker acting as such, that should be punished with life imprisonment.

The court will be able to impose a different sentence where there are exceptional circumstances. As covered in Committee, that term is already used in law and is deliberately undefined in legislation to allow for interpretation and application by the court. This will ensure that the court can apply a different sentence where justified, such as where there are exceptional circumstances relating either to the offence or the offender.

The successful campaign of PC Harper’s widow Lissie Harper and the Police Federation drew this issue to the Government’s attention, but this was not an isolated incident. While, thankfully, emergency workers are not often killed on duty, they are required to put themselves at particular risk when carrying out their duties and protecting the public. As is often said, they run towards the danger when others run away from it. I therefore beg to move Amendment 1.

[Viscount Hailsham (Con)]

I rise to express my grave concerns about this new clause, which I hope will not be enacted, although I am bound to say that I am rather pessimistic about that.

I will begin by saying something about procedure. I regret that this new clause is being brought forward on Report. The formal announcement of it was by way of a press release on 24 November this year. As the Minister has said, the new clause was triggered by the very distressing case of the killing of PC Harper. We need to keep in mind that the relevant trial took place in July 2020, and it came before the Court of Appeal for consideration in December that year. I suggest that it is hard to see why the new clause could not have been introduced in the House of Commons or, if that were not possible, in Committee in this House. In either event, there would have been a greater opportunity for discussion, both inside and outside Parliament.

All of us will have the greatest sympathy for PC Harper’s wife and family. However, we should be very cautious about legislating as a consequence of a single case or even a number of cases, however distressing they may be. I have referred to the trial in 2020 and the decision of the Court of Appeal in December that year. My noble friend referred specifically to them. In both those cases, very serious and detailed consideration was given to the appropriate sentence, and, as my noble friend has said, the Court of Appeal rejected the submission of the Attorney-General that, in the case of the defendant Long—the most culpable of them—the sentence should be increased to a life sentence.

I suggest that anyone who studies the judgments of the courts, together with the guidelines of the Sentencing Council—the relevant ones were published as recently as November 2018—will be satisfied that the existing law makes proper provision for the punishment of offenders convicted of serious offences of manslaughter and gives proper protection to emergency workers.

As your Lordships will know, manslaughter covers a very broad spectrum of culpability, extending from the very serious—the killing of PC Harper is an example of this—to many things that are very much less serious, such as a single blow that fells an individual, who strikes his head on the pavement and dies. In all conscience, that is an act of common assault, although the consequences are dreadful.

In the case of PC Harper, the trial judge stated that, had the defendant Long been a few years older— he was 19 at the time of the trial and 18 at the time of his offence—he would probably have been given a life sentence. So we need to be clear about this. A life sentence is already available for serious cases of manslaughter, where the trial judge, who has heard all the relevant facts, thinks that such a sentence is appropriate. Your Lordships are being asked to approve a mandatory life sentence in circumstances in which the trial judge might otherwise determine that one is not appropriate. I am deeply uncomfortable with that, especially when I consider the broad spectrum of culpability that arises in manslaughter cases.

Consider a police officer who intervenes in a street brawl, in or out of uniform—it might be a plain-clothes officer. The officer is struck by a single blow or trips in the course of a scuffle. He or she falls, hits their head on the pavement and dies. If the deceased person had been a civilian killed in such circumstances, the court would impose a relatively modest determinate sentence, but, in the case of the police officer and subject to the subsection (2) provisos, which I will shortly mention, the court would have to impose a life sentence. I do not believe that that can be right.

I said that I would speak briefly, if your Lordships would allow me, to proposed new subsection (2), which was briefly referred to my noble friend the Minister. Subsection (2) refers to the exceptional circumstances that relate to the offence or the offender and make it just not to impose a life sentence. The question that arises and must be considered is: what does that mean? Does that mean that, if the judge thinks that the offence falls at the lower level of culpability, a modest determinate sentence can properly be imposed? If that is the case, what is the purpose of the new clause? If such a discretion is not available to the trial judge, it is surely inevitable that injustice will happen on occasions.

At that point, we come to a related matter. We are talking here about not “whole life” cases but life-sentence cases in which a trial judge must impose a custodial tariff. Is the trial judge entitled under these provisions to set a modest determinate tariff in order to address a low level of culpability? If that is the case, what is the point of the new clause? If it is not the case and the trial judge may not impose a modest tariff, it is extremely unjust.

I have one final point, and I acknowledge that it is about drafting. Consider the following circumstances, which fall within proposed new subsection (3)—I will not read it out because it is on the Marshalled List and I do not want to detain your Lordships’ House. An off-duty officer in plain clothes, whose identity as a police officer is not apparent, intervenes in a street brawl or seeks to apprehend a fleeing thief. In the scuffle, he or she falls over, hits their head and dies. Is it right that, in those circumstances, such a defendant should automatically face a life sentence, unless the subsection (2) provisos apply?

I am profoundly uncomfortable with this new clause, and I would like to think that it will not pass.

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[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—

[Lord Carlile of Berriew (CB)]

I am grateful to the Minister for giving way. One point he has not dealt with, as I understand it, is why the Sentencing Council and sentencing guidelines are not seen as an adequate and flexible mechanism for dealing with cases of this kind. We need a reasoned explanation for the rejection of that proposition.

[Lord Wolfson of Tredegar (Con)]

The reasoned explanation is that the Government believe that this is an offence which should be marked by a life sentence—a mandatory life sentence. The amount of time the person serves can be set by the judge in a tariff.

[Lord Carlile of Berriew (CB)]

The Minister has just given the game away by his slip of the tongue. He said it is a case which should be marked by “a life sentence”, and then he said, “a mandatory life sentence”. He was right before he made the slip of the tongue. That is exactly what judges can do and exactly what the Sentencing Council can deal with. I am afraid that I do not accept that his explanation so far has been reasoned.

[Lord Wolfson of Tredegar (Con)]

We are now having precisely the opposite debate to the one we had in Committee. In Committee, when someone said to me—I think it was the noble Baroness, Lady Jones—“this is a mandatory sentence” and I said, “but there are exceptions”, it was said to me, “no, it is mandatory”. Now, when I am trying to point out that it is not mandatory, in the sense that it is a mandatory life sentence but it does not mean you serve life in prison, that is said to be a slip of the tongue. I absolutely meant what I said: this provision sets out a mandatory life sentence, because the Government believe that is the right way to mark society’s horror at the killing of emergency workers, in the same way that we do for murder.

However, with murder, and in this case, the trial judge will have the ability to set an appropriate tariff. Also, unlike with murder, the trial judge can, in exceptional circumstances, depart from the sentence entirely, something which society and Parliament does not enable a trial judge to do in any murder case. With great respect to the noble Lord—

[Lord Carlile of Berriew]

I am sorry to interrupt again, but the Minister has said something completely untenable. He said that under “exceptional circumstances”, the judge has the power to depart from the sentence entirely. That is absolutely not the case. If the sentencing guidelines in front of any judge sitting in a criminal court lead to the conclusion that the starting point for the sentencing process is a life sentence, but there are circumstances at which different levels can be set, they will operate on that basis. This provision is unnecessary if we trust the judges. The Government are telling us, on the basis of belief, as the Minister said—which I do not necessarily regard as reasoned—that they do not trust judges to pass appropriate sentences in these cases, on the basis of one or two instances, when there is a perfectly good living instrument for dealing with this.

--- Later in debate ---

[Lord Wolfson of Tredegar]

My Lords, with genuine respect, the noble Lord is wrong if he thinks that that is what I have said. Let me be clear: if there are exceptional circumstances, the judge is entitled to depart from the sentence. In other words, the judge does not have to impose the life sentence. The judge will then decide what sentence to impose. With the greatest respect, I was right to say that if there are exceptional circumstances, the life sentence does not apply. If there are no exceptional circumstances, the life sentence does apply, and the judge will then set a relevant tariff.

[Viscount Hailsham (Con)]

But does not all of this imply that we are really not serving any purpose by the new clause, partly because of the point made by the noble Lord, Lord Carlile, and also the point conceded very fairly by the Minister to the effect that the trial judge can impose in reality a very low tariff? So the question is, what is the point?

[Lord Wolfson of Tredegar (Con)]

My Lords, I have explained that. There is a difference between being given a life sentence with a 10-year tariff and being given a sentence of 10 years. That is a point that we all accept in the case of murder.

[Viscount Hailsham (Con)]

That is true, too, but the case of murder arises from the original bargain made with Parliament and the country at the time when capital punishment was abolished. That does not apply as an argument to what we are doing now.

[Lord Wolfson of Tredegar (Con)]

My noble friend is absolutely right to say that that is the origin of the life sentence for murder. It was a deal done, if I can put it in those respectful terms, but we have life sentences elsewhere in our legislation as well. The point that I was seeking to answer—and, with great respect, I think I have answered it—was, as I understood it when it was put against me: what is the difference if the trial judge is going to give a tariff of x years, why not just have a sentence of x years? However, there is a difference, as we all recognise, between a life sentence with a tariff of x years and a sentence of x years. We can have a debate—

[Earl Attlee (Con)]

My Lords, does the Minister not run the risk of ending up, in the case of the pub brawl, with the offender being sentenced to life but with only a four-year tariff?

[Lord Wolfson of Tredegar (Con)]

I would not use the word “risk” at all. On the one hand, I am being charged with not trusting the judges and, on the other, giving the judges too much discretion. I am entirely happy with a trial judge having the ability to set an appropriate tariff in these cases, as trial judges do in all cases of murder. Whether the tariff given is four, 10, 15, 20 or 30 years is entirely a matter for the judge. I am entirely happy to trust the judge. However, it is absolutely right for Parliament to say that, in these cases, where somebody has committed an unlawful act that has led to the death of an emergency worker who was acting as such, a life sentence ought to be the correct response from the court. Two points arise. First, with great respect to the noble Lord, Lord Carlile, if there are exceptional circumstances, that sentence does not apply at all. Secondly, if it applies, the judge can impose a tariff.

[Baroness Butler-Sloss (CB)]

Forgive me—and I thank the Minister—but perhaps I might ask him whether it is reasonable that a 16 or 17 year-old should be on lifetime licence when alternatively he might get the time of detention plus another three or four years. A lifetime licence means that he is under the control of probation officers from the age of 16 for the rest of his natural life.

[Lord Wolfson of Tredegar (Con)]

My Lords, we have considered this. We restricted the new sentence to 16 and 17 year-olds to ensure that only older children who are convicted of this serious offence are given a mandatory life sentence, unless there are exceptional circumstances that mean it is not justified. Of course, exceptional circumstances are not just those relating to the offence but those relating to the offender. There is a precedent for this age distinction. The Criminal Justice and Courts Act 2015 also uses the age of 16 as a threshold to begin applying minimum sentences for knife-crime offences. So we have considered the point made by the noble and learned Baroness.

[Baroness Jones of Moulsecoomb (GP)]

I am so sorry, but I do not understand why we are arguing about this. We are all dissatisfied with what the Government are doing, yet none of us can stop it. It is all angels dancing on the head of a pin, as far as I can see. I am really distressed at this and wish that I had spoken to more people and perhaps got some others onside. The Government are making a mistake and that is what the Minister should hear from this debate.

[Lord Paddick (LD)]

I was not going to say anything, but I am, I think, the only former police officer in the Chamber. Is the Minister saying that he would be satisfied if somebody were sent to prison for four years for killing a police officer on duty in these circumstances? That seems to be what the noble and learned Lord is saying. In which case, what is the point?

[Lord Wolfson of Tredegar (Con)]

I know it is bad form, but perhaps I can answer in reverse order. I certainly was not saying that. Indeed, the point that I was trying to make was that I was not going to get into what an appropriate tariff would be in any case; I regard that as absolutely a matter for the trial judge. It is not helpful for trial judges or indeed anybody else for Ministers on their feet to hypothesise as to what they might think an appropriate tariff would be in a particular case. The tariff is entirely a matter for the trial judge, who will decide it in the way in which they decide tariffs in other cases of life sentences as well.

To the noble and gallant Lord—forgive me, I am not sure whether I have that right; he is proud not to be a lawyer, a point with which I sympathise—I say that we brought in this amendment as soon as we had thought about the policy and, we think, got it right. When we were thinking about this issue, there were there were a number of points in the policy that required very careful consideration. That took time and that is why it is happening now. I cannot say any more than that.

I was going to acknowledge another point made, but I think I have already responded.

[Baroness Lister of Burtersett (Lab)]

I apologise for not being here at the outset, but I have listened very carefully to what has been said and it seems to me that it would be wrong simply to steamroller this amendment through now when virtually everyone who has spoken has done so very eloquently against it. Would it be possible to take it away, talk to learned Members of this House and come back at Third Reading with something that might be more acceptable ?

[Lord Garnier (Con)]

Like the noble Baroness, Lady Lister, I, too, apologise for not being here at the outset when my noble friend Lord Hailsham began. I know that next week we are going to talk about IPPs. That subject carries with it all the problems that this subject will bring with it. We now know that IPPs went wrong and have created injustices, and that there are people who have IPPs but short tariffs well past their expiry date and who are still in prison 10 or 15 years after their sentencing. Could we not learn the lessons from the IPP problem and, in order to help us learn those lessons, postpone a decision on this clause until after we have had the IPP debate, so that together we can draw a united conclusion about how best to move forward with justice?

[Lord Wolfson of Tredegar (Con)]

My Lords, the joys of the IPP debate are ahead of us. That raises very different points. The IPP sentence has different characteristics and the problems that it has given rise to are entirely different. I listened very carefully to the debate in Committee on IPPs, when a number of noble and noble and learned Lords expressed disquiet and tabled various amendments. They will know that I have had conversations with them about it. So I am entirely alive to the IPP issue, but that is completely separate from this issue. We consider that this measure is an appropriate response to this form of offending.

[Baroness Fox of Buckley (Non-Afl)]

The Minister listened very carefully to the debate in Committee on IPP. Some of us have read that and thought about it a lot since then. The problem is that noble Lords have not had the opportunity to listen very carefully to the debate on this particular amendment: that is the problem, in a way. It is not a straightforward amendment. I learned of it by hearing about it via the media and thought it could not possibly be being brought forward in relation to this Bill; I actually explained to people that they did not understand the way in which legislation was made, and that that was just something that the media said. Then, I realised that it was happening.

The Minister was very good and answered some of my queries and made sure that I did not fight any straw men when I went to him with particular arguments. He was very considerate in answering them. However, I do not think that the House has had the chance to consider this amendment. It is not without parallel to the IPP, inasmuch as it is a controversial sentencing change that has very big implications. We know that, because in the press release and the media reports, it was said that this would change everything. That is how it was announced: it was proclaimed as something that would change everything. Therefore, if it is going to change everything, people in this House should have a chance to debate it more thoroughly than now, so it is reasonable to ask if it could be brought forward later on in the Bill in order for some consideration to be given.

[Lord Wolfson of Tredegar (Con)]

I do not know which of the no-doubt multifarious press releases the noble Baroness read, but it was clear in the ones that I saw that the matter was going to be brought back here. This amendment was, I understand, tabled on 1 December, so the issue has been live. I am very happy to take any further interventions. That was probably not a good idea.

[Earl Attlee (Con)]

My Lords, I cannot resist the temptation. Would the Minister be prepared to express some uncertainty about the “exceptional” rule? If he expressed that uncertainty, it would mean that a Third Reading amendment to the noble Lord’s amendment would be acceptable.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am not quite sure what I am being asked to accept, but I do not have any uncertainty as to what “exceptional circumstances” is. It is a phrase used in this legislation; it is used in other legislation; it is a phrase that is well known to the courts. It is a phrase that they are perfectly able to deal with.

[Lord Beith (LD)]

The relevance of IPP sentences to this debate is that, when IPP sentences were introduced, rather similar speeches were made from the Front Bench to the one that the Minister is making tonight. I know his style his different, but the fact remains that it was a disaster and a scandal. It developed in ways in which all those who introduced it did not anticipate, and now concede was wrong, but they had not fully understood at the time what the consequences were. This has all those hallmarks about it.

[Lord Wolfson of Tredegar (Con)]

As I said, I am very alive to the IPP issues, as the noble Lord knows; but the IPP issue and the IPP sentence was a novel sentence which did things that other sentences did not do. Indeed, that is why it was brought in. The shape of this sentence, however, is not novel. It is the application to this particular offence that is new. With the greatest of respect, therefore, I disagree with the comparison to IPP sentences, which were themselves novel.

I hope that I have set out the government position clearly and fairly—

[Lord Paddick (LD)]

My Lords, the noble Lord started his contribution to this debate by saying that he was listening. Surely, he has heard from the House that the House is not content to allow this amendment to pass at this stage. Surely, the only reasonable thing to do in these circumstances—because nobody wants to divide on this issue here and now—is for the Minister to say that he will take it away and bring it back at Third Reading once noble Lords have had a chance to discuss the issue with him between now and Third Reading.

[Lord Wolfson of Tredegar (Con)]

As I hope the House knows from this Bill and plenty of other Bills, I am very happy to discuss issues with anyone at any time. However, points of principle have been made, and points of principle have been answered by me as clearly and cogently as I am able to do. I think that the appropriate thing to do—relative newcomer as I am to this House—is that the Question on the amendment should be put. If people want to—

--- Later in debate ---

[Earl Attlee (Con)]

My Lords, I am not convinced that the noble Lord, Lord Ponsonby, is correct because if we delay the amendment, we would be putting it at the back of the Bill, but it has to be in this position in the Bill. Therefore, I think we should leave it until Third Reading rather than delay it.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am not going to try to adjudicate on that point, which seems to be a point of procedure, better left to those who know more about it than I do. I have listened very carefully to the debate, and points of principle have been raised. With genuine respect, however, I believe that I have set out the Government’s position on those points of principle. Kicking the can down the road—attractive as that can sometimes appear—will not achieve anything substantive.

[Lord Falconer of Thoroton (Lab)]

This is pretty shocking. There is a lot of support for the principle that the amendment could be so much better if it could be debated. I completely understand the noble Lord’s embarrassment. He does not want to go back to the Ministry of Justice and not have the amendment, but if you want good law, recognising that the Government want this, there is so much that could be discussed to make this provision better.

The noble Baroness, Lady Williams, agreed without any pressure on two things in relation to the additional protest measures. First, she agreed that they should come at the end of Committee and secondly, she did not move them in Committee because of the exact problem that has arisen in this case. She indicates the right way forward. We would greatly appreciate in the House if the noble Lord would show us the same courtesy that the noble Baroness, Lady Williams, showed us.

[Lord Wolfson of Tredegar]

I am very happy to be accused of all sorts of things, but I hope that nobody in this House believes that I act either towards it or towards any of its Members with discourtesy. We may have disagreements, but they are always, I hope, courteous. I am not in the least embarrassed about going back to the Ministry of Justice with or without anything. My task, as I see it, is to set out the Government’s position in this House and then the House has to take a view.

With great respect to the noble and learned Lord, I do not accept that this is a question of tweaking the provision or making it better. The points that have been put to me are really points of principle—people do not agree with this at all, while saying, “Of course we agree.” The matter ought to be presented to the House and dealt with by it today.

[Lord Carlile of Berriew (CB)]

Following on from the remarks of the noble and learned Lord, Lord Falconer, can the Government agree to the House being adjourned for half an hour or so, so that there can be a discussion between the usual channels and between the groups in the House as to how this should continue? We would be very grateful and it would be seen as a matter of utmost but necessary courtesy.

--- Later in debate ---

[Lord Pannick (CB)]

Any Member of the House can call a vote but, if the Minister is not willing to accede to any of the suggestions that have been made, it is the obligation of the Front Benches to indicate that they are so dissatisfied, in the light of all the debate and the fact that we have only had a week to consider this, that they will divide the House. If they were so to indicate, that might impose a bit more pressure on the Minister.

[Lord Wolfson of Tredegar (Con)]

In the last week, as is my wont, I have had discussions with a number of Members of this House on this matter. Any Member of the House knows that my door is always open to them, metaphorically and often literally. All the discussions that I have had on this amendment have been ones that I have reached out to others to have. Nobody has knocked on my door. In those circumstances, I cannot say that we will adjourn. If I am told differently, that will be for others to decide. At the moment, I will ask the House to vote on my amendment.

[Viscount Hailsham (Con)]

My Lords, I hate to intervene on my noble friend but I will formally move that the House be adjourned for one hour.

[Lord Wolfson of Tredegar]

My Lords, I ask the House to vote on my amendment.

Motion

Moved by

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

My Lords, I want to put it on record that in the last week, when this amendment has been tabled, all the engagement I have had on this matter I have facilitated, and I have reached out to. Not a single Member of this House has reached out to me about this amendment. I beg to move the amendment.

Police, Crime, Sentencing and Courts Bill

Lord Wolfson of Tredegar Excerpts

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

[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.

--- Later in debate ---

[Baroness Randerson (LD)]

I thank the Minister for his explanation, which is very interesting and largely reassuring. The one aspect of it that worries me is the comparison with the maximum six-month sentence for driving while disqualified, because that goes back to the points my noble friend Lord Marks was making: if I go out and drive while disqualified, I am doing so with a settled determination to do something I know is wrong. I have already been punished for doing something pretty bad, and I am building on that by ignoring the disqualification. Comparing that with the case of someone who goes out with no intention to be careless—because it is at the heart of carelessness that it comes on you unexpectedly—but does something wrong by mistake and someone is injured as a result, it seems to me that the mental state is far worse in the case of the person who goes out to drive while disqualified, however perfectly they manage to drive.

[Lord Wolfson of Tredegar (Con)]

My Lords, of course I understand and to a certain extent accept that point; we have previously helpfully discussed it. What we try to do with the two-year maximum is find the appropriate level. One has to fit it between that six-month point and the five-year point for the reasons I have explained. Even if the noble Baroness does not accept the comparison with six years, it still obviously has to be below five years. The question is where we should put it. The central point is that maximum penalties are there for the worst imaginable case. The two years, therefore, is really for the worst imaginable case. I have sought to set out, in not too great length but clearly, why it is two years and, more importantly, what a maximum sentence means in this context and what the very limited circumstances are in which we would expect a maximum sentence to be imposed—not because the Government are telling the courts what to do but because, given the guidelines under which the courts already operate, it would be a very rare case to have a term of imprisonment or, certainly, a maximum term of two years. That is why I set it out earlier in the terms I did.

[Lord Hope of Craighead (CB)]

My Lords, I am grateful to all noble Lords who have spoken in this short debate, and in particular to the Minister for his careful attention to the points that I have raised and the carefully worded assurances that he has given us in the past few minutes.

The worst imaginable case is the reason why I accept that there is a gap that needs to be looked at and filled, and this offence obviously addresses that gap. But one is faced with the mental element that the noble Baroness, Lady Randerson, and the noble Lord, Lord Marks of Henley-on-Thames, have drawn attention to. It is that which makes it very difficult to accept that, even for the middle layer, there should be a sentence of imprisonment at all, in comparison with the many offences where there is a distinct mental element and a deliberate intention to flout the law—to disregard it, shrug your shoulders and go ahead anyway. It is not that kind of offence, which is why it is so important to signal, as the Minister has done, that it is only for the most extreme cases that a sentence of imprisonment for this kind of offence would really be appropriate.

Obviously, we must listen and wait for the Sentencing Council to set out the scales, and no doubt it will do so with great care. But, for the time being, what the Minister has said offers some reassurance, and I am extremely grateful for that. For those reasons, I beg leave to withdraw the amendment.

Police, Crime, Sentencing and Courts Bill

Lord Wolfson of Tredegar Excerpts

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

[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.

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

My Lords, that is a very encouraging note on which to rise. I thank the noble and learned Lord, Lord Thomas of Cwmgiedd, and the noble Lord, Lord Paddick, for bringing back matters that we discussed in Committee.

I say respectfully that Amendment 66B, tabled by the noble and learned Lord, Lord Thomas, commendably deals with the need for consistency in both the use of, and compliance with, the code of practice that will guide the use of diversionary and community cautions under Part 6 of the Bill. I am grateful to the noble and learned Lord for making time to discuss this matter with me.

For the record—it may have been in the mêlée that occurred when people were leaving—I thought I heard the noble and learned Lord refer to cautions as part of the sentencing framework. Without wishing to split hairs, we see this as separate from the sentencing framework and as an out-of-court disposal, but if the noble and learned Lord did say that, I understood that he was talking in broad terms. I am keen to reassure him and, indeed, the House that a fundamental aim of reforming the out-of-court disposal options currently in use was to improve consistency by reducing the number of disposals and creating two clear and statutory options.

Some attention was paid in Committee to the lack of data currently recorded and available on the use of cautions, whether conditional or simple, and the types of conditions attached to the former. We are keen to address that and believe that the proposals in Part 6 of the Bill, along with the code of practice that will accompany it, will do so. We are currently engaging with the Home Office regarding the outcomes framework so that police can accurately report the number of cautions given, and we will also explore the practicalities of gathering qualitative data from police on the types of conditions used.

We want to preserve the balance between a national framework for decision-making on the one hand and, on the other, operational decision-making that rests on the facts of the case and can be independently and locally scrutinised. We believe that working to develop more effective and consistent scrutiny panels in forces, thereby ensuring independent representation and transparency of findings, would be the most effective course of action. For that reason, we are currently engaging with stakeholders on precisely this issue, including a range of questions on transparency and scrutiny regarding the use and monitoring of the new cautions. It will only be possible to find the balance we seek once we have that feedback. I can assure the noble and learned Lord and the House that this will subsequently be included in the code of practice accompanying this legislation, which will itself be brought before Parliament for scrutiny in due course.

Amendments 66C and 66D, tabled by the noble Lord, Lord Paddick, relate to the essence of the reform that the Bill makes to the out-of-court disposals framework. As I noted in Committee, this reform has its roots in the work led by the National Police Chiefs’ Council, whose strategy in 2017 removed the need for the simple caution, penalty notice for disorder, and cannabis and khat warnings. The Government have listened to the NPCC and are now taking steps to ensure national consistency in the framework that it has helped to develop. The current position is that one-third of police forces have already moved to using only conditional cautions and community resolutions, and many more, including the Metropolitan Police, are currently in the process of moving over to this two-tier framework.

With Amendment 66D, the noble Lord seeks to retain penalty notices for disorder. We have already seen a marked decline in their use by police. The most recent CJS statistics show that the use of penalty notices for disorder has fallen 28% from the previous year. These are distinct from the fixed penalty notices, which are unaffected by Part 6 of the Bill.

I should also make reference to an important matter that was raised by the right reverend Prelate the Bishop of Gloucester in Committee, speaking through—if I can put it in these terms—the right reverend Prelate the Bishop of Durham. This was in regard to the intention behind the use of conditional cautions. The point she made was that they should have the aim of rehabilitation or restoration. The purpose of this is both to address the causes of the offending in order to support the offender to desist from reoffending and to put a welcome emphasis on the wishes of the victim, allowing for appropriate restoration to be made, where appropriate. The fact is that simple cautions and penalty notices do not allow for this victim-centred approach that mandates rehabilitative and restorative actions. I therefore do disagree with the noble Lord, Lord Paddick, that this gives rise to what he called—if I heard him correctly—a bureaucratic nightmare.

Retaining the use of penalty notices and simple cautions would undermine these aims entirely and indeed the reform itself. They are inconsistent with it. I heard the noble Lord say, somewhat in stereo as it was repeated behind me by the noble Earl, Lord Attlee, that I have my work cut out to persuade him not to divide the House. But I hope I have set out the principles that underly the new approach: the conditions support rehabilitation and encourage the offender to desist from reoffending. You simply do not get that with a simple caution or notice. I therefore hope that, having listened to what I have said, both he and the noble and learned Lord, Lord Thomas, will not press their amendments.

[Lord Paddick (LD)]

Before the noble Lord sits down, could he just confirm that these changes—not allowing fixed penalties or simple cautions—are being made on the basis of no evidence whatever of the efficacy of conditional cautions versus simple cautions? He has just admitted from the Dispatch Box that the Government do not retain any data on the number of conditional cautions versus the number of simple cautions, or about the sorts of conditions imposed, but retain data only on the total number of cautions.

[Lord Wolfson of Tredegar (Con)]

My Lords, I think we might now be in double figures for the times I have been asked that question. I have set out in my remarks, fairly I hope, what lies behind it. The work from the National Police Chiefs’ Council lies behind this; a third of police forces have gone there; and many more are considering it. Whether one calls that evidence or not, that is the basis on which these reforms are predicated. I have answered this question before, and I answered it in Committee. I appreciate my answers may not satisfy the noble Lord, but that is the basis on which we think this is a good idea; and quite a number of police forces already think this is a good idea.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I thank all who participated in this debate. I will deal very briefly with the two points that have arisen.

First, the system to ensure consistency and compliance with the code will apply to whatever system is brought into effect, including the conditional cautions or fixed penalty notices. I am very grateful to the Minister for his statement, and it seems to me there is now a proper basis for going forward. I think it is fair to say that, when fixed penalty notices and cautions came to be used much more frequently, attempts were made by the judiciary from about 2005 onwards—therefore spanning both Governments—to try and put in place such a system. I am afraid we did not get very far, but it is encouraging to know the Minister is now behind this.

I hope for two things. One is for us to go forwards, as the noble Lord, Lord Ponsonby of Shulbrede, has said, with the magistrates doing matters locally, and I hope the MA will positively engage. The other is for a national basis. National consistency is important, because to the man on the Clapham omnibus—or whatever the modern phrase is—whether you get required to do something by the court or by the police, it is still part of the same system and it is still the law that requires it. Therefore, I look forward very much to scrutinising, when this comes back, the proposals put forward by the Government in the code.

As to the second part, I am again grateful to all who have taken part. If I may respectfully say so, I think there is a certain lack of wisdom in getting rid, without an adequate evidence base, of something that has been as useful in the past as a simple caution. However, I beg leave to withdraw the first amendment.

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Moved by

[Lord Wolfson of Tredegar]

67: Clause 100, page 87, line 11, leave out from “90(8)” to end of line 12
Member’s explanatory statement
This amendment provides for regulations under Clauses 81(8) and 90(8) to be subject to the affirmative procedure whether they increase or decrease the maximum number of hours a person may be required to work or attend at a place pursuant to a caution.

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Moved by

[Lord Wolfson of Tredegar]

69: Before Clause 102, insert the following new Clause—
“Penalty for cruelty to children
(1) In section 1 of the Children and Young Persons Act 1933 (cruelty to persons under 16), in subsection (1)(a) (penalty on conviction on indictment), for “ten” substitute “14”.(2) Subsection (1) applies only in relation to offences committed on or after the day on which this section comes into force.”Member’s explanatory statement
This amendment increases the penalty under section 1(1)(a) of the Children and Young Persons Act 1933 to 14 years.

[Lord Wolfson of Tredegar (Con)]

My Lords, these amendments follow a discussion in Committee and an undertaking given on Report in the other place in response to amendments tabled by Tom Tugendhat MP, with cross party-support, which sought to raise the maximum penalties for child cruelty offences. We said at that time that we would bring forward proposals for reform as soon as possible.

I pay tribute to Tom Tugendhat and the family of his young constituent, Tony Hudgell, who have campaigned tirelessly for these changes to the law in his name. As a baby, Tony was abused to such an extent by his birth parents that he is now severely disabled. No child should suffer such appalling abuse, especially from those who should love and care for them most. Therefore, it is right to ensure that, in such cases, the punishment fits the crime. I should add that today saw the sentencing of those involved in the tragic death of Star Hobson. I offer my and the Government’s sincere condolences to Star’s friends and family. The violent death of a child as young as Star really is heart-breaking.

Government Amendments 69 and 70 amend Section 1 of the Children and Young Persons Act 1933 and Section 5 of the Domestic Violence, Crime and Victims Act 2004 respectively to increase the maximum penalties in three circumstances. Those for cruelty to a person under 16 rise from 10 years’ imprisonment to 14 years’ imprisonment; those for causing or allowing the death of a child or vulnerable adult rise from 14 years’ imprisonment to life imprisonment; and, finally, those for causing or allowing a child or vulnerable adult to suffer serious physical harm rise from 10 years’ imprisonment to 14 years’ imprisonment.

Government Amendment 70 also adds the offence of causing or allowing the death of a child or vulnerable adult to Schedule 19 to the Sentencing Act 2020. This is a consequential amendment of Schedule 19 which lists offences where the penalty may be life imprisonment. It means that, if the judge determines that the offender is dangerous and the circumstances of the offence are sufficiently serious, the offender must receive a life sentence. Furthermore, a consequence of increasing the maximum penalty for causing or allowing the death of a child or vulnerable adult to life imprisonment is that offenders sentenced to seven years or more for that offence will now spend two-thirds, rather than half, of the sentence in custody.

I am confident that the House will agree, especially in light of the recent appalling cases, that the courts should, where necessary, have the fullest range of sentencing powers available—I underline that these are new maximum sentences—to deal appropriately with those who abuse children and vulnerable persons. I therefore beg to move Amendment 69.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, it is a pleasure to rise to support government amendments. There are cases of child abuse and neglect that cannot be adequately punished under the current maximum sentences. It is rare for me to urge more punishment; I always try to focus on rehabilitation, deterrence and restitution, but here I see more punishment as appropriate, simply because protecting a child is our natural human response.

A few years ago, a grave was found in Italy containing a 10,000 year-old skeleton of a tiny baby girl, just a few weeks old. She was buried with what would have been quite precious things: an eagle owl talon, shell pendants and some precious stones. This showed us that, first, 10,000 years ago people cared about their children even when they were of a very young age, and we did not necessarily know that—burials from the Mesolithic period are quite rare—and, secondly, the fact that she was a girl showed that it was an egalitarian society and they did not have our western attitude of women being rather less than men.

There is, however, no deterrent effect required from criminal law because if the only thing stopping someone hurting a child is that it is illegal then there is something deeply wrong with that person. We have an innate reaction to child abusers—a natural hatred towards anyone who would do something so vile. However, that is not to say that every single case of child abuse or neglect is the same, so I am pleased that this is an increase in the maximum sentences and that the Government are not messing around with mandatory minimum sentences.

[Baroness Chapman of Darlington (Lab)]

My Lords, we support the amendments. I read with interest the debate on Report in the Commons, where there was clear support for them across the House. The concern to protect children and vulnerable adults is felt particularly keenly at this point. We have all been deeply shocked and moved by the recent cases, and by the voice of Arthur Labinjo-Hughes—I cannot bear to repeat his words. It is little wonder that the Government feel moved to act on this issue. Our justice system should reflect the public’s disgust and concern at what has happened.

However, I want to say something about the impact of these amendments. As hinted at by the noble Baroness, Lady Jones, increasing sentences will not prevent these crimes. These measures are the right thing to do and we support them, but they will not prevent these crimes. The Government have systematically undermined early intervention and prevention services, which have largely been delivered by local government, along with health in schools, which have combined to protect children and vulnerable adults. I ask the Minister to speak to his colleagues about working urgently and strategically to deal with the now well-understood and reported problems of poor communication, lack of curiosity, excessive case loads and inadequate co-ordination of services that put child services under so much strain and children at risk. Addressing those issues would do far more to safeguard children and vulnerable adults. For today, though, we support these changes, insufficient though they are.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful to all those who have contributed to this debate. I will pick up the point just made by the noble Baroness, Lady Chapman of Darlington. There has indeed been cross-party support on this point in your Lordships’ House, as there was in the other place, and I am grateful to her and the noble Lord, Lord Marks of Henley-on-Thames, for that. I therefore will not shatter the mood of consensus by descending into a debate on early intervention, save to say that I too agree that early intervention is important. I will pass her remarks on to my colleagues and I am sure we will continue that debate at another time.

For today, it is important to preserve that consensus. There is a mood across the House that these amendments are important, for the reasons given by all speakers. I was particularly grateful to have the support—perhaps unusually, if I may say so—of the noble Baroness, Lady Jones of Moulsecoomb, which shows that this issue is a cross-party, and perhaps even a non-party, issue. With those thanks, I commend the amendments to the House.

Amendment 69 agreed.

Moved by

[Lord Wolfson of Tredegar]

70: Before Clause 102, insert the following new Clause—
“Penalty for causing or allowing a child or vulnerable adult to die or suffer serious physical harm
(1) Section 5 of the Domestic Violence, Crime and Victims Act 2004 (causing or allowing a child or vulnerable adult to die or suffer serious harm) is amended in accordance with subsections (2) and (3).(2) In subsection (7) (penalty in the case of a person’s death), for the words “liable on conviction on indictment” substitute “liable—(a) on conviction on indictment in England and Wales, to imprisonment for life or to a fine, or to both;(b) on conviction on indictment in Northern Ireland,”.(3) In subsection (8) (penalty in the case of serious physical harm), for the words “liable on conviction on indictment” substitute “liable—(a) on conviction on indictment in England and Wales, to imprisonment for a term not exceeding 14 years or to a fine, or to both;(b) on conviction on indictment in Northern Ireland,”.(4) Subsections (2) and (3) apply only in relation to offences where the unlawful act to which the offence relates is an act that occurs, or so much of such an act as occurs, on or after the day on which this section comes into force.(5) In Schedule 19 to the Sentencing Code (list of certain specified offences carrying maximum sentence on indictment of imprisonment for life), after paragraph 20 insert—“Domestic Violence, Crime and Victims Act 200420A(1) An offence under section 5 of the Domestic Violence, Crime and Victims Act 2004 that meets the conditions in sub-paragraph (2). (2) The conditions are that—(a) the unlawful act to which the offence relates was an act that occurred, or so much of an act as occurred, on or after the day on which section (Penalty for causing or allowing a child or vulnerable adult to die or suffer serious physical harm) of the Police, Crime, Sentencing and Courts Act 2021 came into force, and(b) the offender is liable on conviction on indictment to imprisonment for life.””Member’s explanatory statement
This amendment increases, for England and Wales, the penalties under section 5(7) and (8) of the Domestic Violence, Crime and Victims Act 2004 to life (if a person dies) or 14 years (if a person suffers serious physical harm). The amendment includes a consequential amendment of Schedule 19 to the Sentencing Code, which lists offences where the penalty may be imprisonment for life.

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[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.

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[Lord Garnier (Con)]

I hate to disagree with the Minister on this matter of policy, but of course Parliament can do what it likes. The question is whether that is wise.

[Lord Wolfson of Tredegar (Con)]

We must distinguish carefully between whether it is wise, which is a point we can make about any legislation, and whether it is proper. When the point is put against me that this is an attack on judicial discretion and a case of not trusting judges, I hear it as a matter of policy and constitutional propriety first and a matter of wisdom second. So far, I have addressed the point on constitutional propriety. My noble and learned friend is right to say that Parliament can do what it likes; my point is that, here, Parliament is doing what is constitutionally proper as well. As to whether it is wise, I set that out earlier.

In these circumstances, it is proper to endorse the exceptional circumstances test. A system in which 50% of people are not being given the minimum sentence is, I suggest, one in which something is going seriously wrong. Although I pay great respect to anything said my noble and learned friend, the point put briefly but clearly and firmly by the noble and learned Lord, Lord Hope of Craighead, ought to carry serious weight with the House.

[Lord Pannick (CB)]

The Minister mentioned a Court of Appeal authority on this matter. Can he confirm whether that authority suggests that, if a judge in an individual case believes it would be contrary to the interests of justice to impose the minimum sentence, that is a strong indication that there are exceptional circumstances?

[Lord Wolfson of Tredegar (Con)]

As we found in Committee, it is very tempting for Ministers to start parsing or glossing the term “exceptional circumstances”, and I hope the noble Lord will forgive me if I do not do so. That phrase has been used in statute and considered at the very highest level by the judiciary. The application of statute is properly a matter for the judiciary. In these circumstances, it is not helpful for a Minister on his feet to start parsing or glossing what has been said by the Court of Appeal. With genuine respect, I will leave that matter there and leave it for the Court of Appeal to explain what “exceptional circumstances” means. However, I repeat that the noble and learned Lord, Lord Hope of Craighead, said in terms that he found that test not a difficult one to apply—indeed, he found it an easier and more straightforward test to apply than the interests of justice.

Amendment 82A, tabled by the noble Lord, Lord Ponsonby of Shulbrede, with the support of the noble Lord, Lord German, would require a court imposing a custodial sentence of six months or less to state its reasons for being satisfied that neither a fine nor a community sentence could be justified.

The noble Lord, Lord German, reminded us of the Government’s position set out in 2020, which, of course, I stand totally by. There are plainly issues of rehabilitation and reoffending when it comes to short sentences, and that is why, as I explained in Committee, provisions in the Sentencing Code already ensure that custody should be a last resort in all cases, and for the shortest term possible. Even where the custodial threshold is met, courts retain discretion to impose non-custodial sentences after taking into account wider considerations. The code also places a duty on the court to explain its reasons for passing any sentence, and this can include an explanation of the factors the court has taken into account in making its sentencing decision.

This amendment also sets out a series of principles for courts to have regard to when imposing a custodial sentence of six months or less. For the most part, these are included in the independent Sentencing Council’s Imposition of Community and Custodial Sentences guidelines. As courts are already under a statutory duty to follow any sentencing guidelines relevant to the offender’s case, the Government do not consider it necessary to put these principles on a statutory footing.

As the noble and learned Lord, Lord Hope of Craighead, said, if an alternative sentence to custody can properly be handed down, it should be. While I do not propose again to gloss the sentencing guidelines, I respectfully agree that that is a useful summary of them. Again, as the noble Lord, Lord Ponsonby, said with his own experience, it is often only when community sentences have failed that a custodial sentence is handed down. That, again, is in accordance with the approach set out in the sentencing guidelines.

Of course, I listened very carefully to what was said by the noble Lord, Lord Bradley, with whom I have had discussions on this and other issues, and by the right reverend Prelate the Bishop of Gloucester—I was going to say the “campaigning” Bishop of Gloucester, but I will leave out the adjective, although she might like it. I hope that they will each be satisfied with—and certainly understand—what I have said and the reasons for the Government’s position on these amendments. For the reasons that I have set out, I urge the noble Lord to withdraw his amendment.

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

My Lords, I am very grateful for the support that I have had for my Amendments 71 to 78 from Members of the House and for all the contributions to this important debate. I am also grateful to the Minister for his response. However, when one analyses it, what he was saying about discretion cannot survive a proper reading of what is meant by “exceptional circumstances”. Certainly, it is the case that authorities have analysed exceptional circumstances, including the Court of Appeal authority of Nancarrow that he mentioned.

Nevertheless, the nub of it is that “exceptional circumstances” means circumstances that are very unusual, and what the Minister did not address was my point that there are many situations which in general experience are commonplace, and the circumstances are common- place, but where it would nevertheless be unjust—contrary both to the judges and to any normal sense of justice—to impose the minimum sentence. Because the circumstances are not exceptional, the judge would be bound to impose that sentence.

In answer to the points of the noble Lord, Lord Faulks, of course it is the case that judges are daily addressed on the basis that they should take an exceptional course of leniency, and it is not surprising that, as a recorder, he has been asked to take that course many times. However, that does not mean that he has been asked to find that circumstances are exceptional. It is interesting that the test for the sentencing guidelines and departing from them is “contrary to the interests of justice”, and not a requirement that there should be exceptional circumstances.

On the matter of policy, I respectfully suggest that the answer to the Minister’s point was comprehensively expressed by the noble and learned Lord, Lord Garnier. He used the word “wise”. It may be that the Government are entitled to legislate in this way, but is it wise? The Minister said that there was a difference between “wise” and “constitutionally proper”. The point I am making is simply that, although it may be a matter of policy in the sense that the Government can have the policy and can legislate—as the noble and learned Lord, Lord Garnier, said, Parliament can do what it likes—the question is: is it bad policy? We say that it is bad policy because it forces judges to do what they would not otherwise do, having regard to the interests of justice.

In respect of the point made by the noble and learned Lord, Lord Hope, of course it is right that it may be easier to apply a test of exceptional circumstances, because the authorities are so clear, but the point about the interests of justice, as the noble and learned Lord, Lord Judge, picked up in Committee, is that sentencing decisions are difficult.

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

My Lords, I shall speak briefly to this group of amendments. First, I turn to the minimum sentence for rape of seven years, subject to an exceptional circumstances disregard or permitted departure. We acknowledge and endorse everything that has been said to the effect that rape is the most appalling crime. The terribly low success rate of prosecutions of which the noble Baroness, Lady Chapman of Darlington, spoke is acknowledged by everyone and has been the subject of a great deal of research by parliamentarians, policymakers and the Government. It needs addressing. The problems that she talked of, of low reporting rates and very high withdrawal of support, along with very low conviction rates, all need addressing. However, I am not convinced that a minimum sentence would address any of those things. Furthermore, for all the reasons, which I shall not repeat, I believe that the use of an exceptional circumstances test for the ability of judges to depart from a minimum sentence is simply wrong.

I also agree with the noble Viscount, Lord Hailsham, when he pointed out that, as anybody who has dealt with rape cases in criminal courts knows, rapes are so very different, the one from another. He was right to point to the very wide range of sentences endorsed in the sentencing guidelines, which mean that courts treat rape very differently, from the milder cases to the very serious cases that merit life imprisonment. I also have some concern that, in some cases, it would make juries even less likely to convict if they knew that there was a minimum sentence of seven years. I cannot support, and I do not think that we cannot support generally, the proposition that this seven-year minimum sentence should be legislated for.

By contrast, Amendment 78B, which would increase the sentence for publishing the identity of sexual offences complainants, is one that we do support. I suspect that it is not often realised quite how serious an offence this is. Sometimes there is a substantial risk of further harm when the identity of a complainant is published. There is very often significant fear on the part of the complainant if her name—as it is usually, although it may be his name—is published. There is almost always really significant distress caused by an unlawful publication. It is of course open to complainants to waive anonymity if they wish. But if they do not wish their identity to be published, to have the law flouted in the way the offence requires seems to me to justify a sentence of imprisonment in some cases. It is important to hear that these are only maximum sentences that we are dealing with.

I agree with the noble Lord, Lord Sandhurst, that there are other cases of unlawful disclosure that should be considered and reviewed but, that being the case in an ideal world—and we all know that these things do not happen as fast as they should—that is no reason for not doing anything at all. So we support Amendment 78B.

For all the reasons given by my noble friend Lady Brinton and, no doubt, to be given by the noble Lord, Lord Ponsonby—the noble Baroness, Lady Chapman, has already spoken to it—we support Amendment 78D on the duty to inform under the unduly lenient sentencing scheme, as well as the extension of the time limit for complaint in respect of unduly lenient sentences. In Committee we went through the reasons for the whole-life order to be taken as a starting point in cases of abduction, sexual assault and murder, and we do support that—again, because it is only a starting point—and this ranks right up there with the other serious offences for which a whole-life order is appropriate.

We support for the reasons given by my noble friend Lady Brinton her amendment on home detention curfews as well.

[Lord Wolfson of Tredegar (Con)]

My Lords, these amendments, introduced by the noble Baroness, Lady Chapman, on behalf of the noble Lord, Lord Ponsonby, include those aimed at increasing penalties for sexual offences, those focused on enabling victims to challenge a sentence perceived to be unduly lenient, and those aimed at restricting additional offenders from release on home detention curfew. We debated these at some length in Committee, and we listened carefully to the arguments put forward by noble Lords in support. There are obviously some emotive and important issues here, and I welcome the opportunity to set out the Government’s position again this evening. But while the sentiment behind the amendments is fully supported by the Government, we do not consider them to be either necessary or the right course of action.

Let me start with a point on which I think there is common ground, as was set out by the noble Baroness, Lady Chapman. Victims must feel that they are put right at the heart of the criminal justice system. They must be supported so that they can engage properly at every step of what can be an incredibly difficult journey. As the noble Baroness, Lady Brinton, set out and referred to, last week we launched a package of measures to help achieve this: a consultation on a new victims’ law; a national rollout of provision of pre-recorded cross-examination for sexual and modern slavery victims; national criminal justice and adult rape scorecards; and a progress report on the end-to-end rape review action plan. We believe that those initiatives, individually and collectively, will raise the voice of victims in our criminal justice system and give them the justice they deserve. That especially includes the victims of often horrendous crimes of sexual violence.

I will address first the amendment regarding minimum sentences for rape. There is no dispute across your Lordships’ House that such crimes should be punished with sentences that match the severity of the offence. But the noble Baroness, Lady Chapman, is proposing that a court be required to impose a minimum custodial sentence of seven years for a rape offence committed under Section 1 of the Sexual Offences Act 2003,

“unless … there are exceptional circumstances … which justify it not doing so.”

Rape offenders already receive very significant sentences. The courts can, and do, pass sentences of life imprisonment. In 2020, of those who received a custodial sentence of less than life for a Section 1 rape offence, the average sentence was almost 10 years—117.5 months—an increase of almost 15% over the last decade. More than two-thirds of adult offenders sentenced for a Section 1 rape offence received a custodial sentence of over seven years, which is the minimum proposed by the amendment.

In this Bill, and in legislation introduced last year, the Government are ensuring that serious violent and sexual offenders, including rape offenders, sentenced to over four years now spend two-thirds of their sentence in prison, as opposed to having automatic release at the halfway point. However, the nature of this offence and the wide range of circumstances which the court may need to take into account are complex, as my noble friend Lord Hailsham pointed out. I also agree with the noble Lord, Lord Marks of Henley-on-Thames, although, while I know what he meant, I am not sure I would use the word “mild” for any case of rape. I know he did not mean it in that way. What we are dealing with here is different degrees of seriousness of an offence, and I know he meant that.

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

May I confirm that? It was the wrong word to use, and I apologise.

[Lord Wolfson of Tredegar (Con)]

I was keen to help the noble Lord out, because I think we all knew what he meant, but it is important in these areas to make sure that the record is really clear. I think we all agree that it is especially important, therefore, because we are dealing with different degrees of seriousness in a complex offence, that we maintain judicial discretion for the courts to consider the full facts of a case before them and decide on the appropriate sentence.

Although the sentence lengths for rape have increased, we have long recognised that the decline in the number of effective trials for rape and serious sexual offences is a cause for significant concern. Let me take a moment to mention some of the wider action we are taking: we have introduced legislation to tackle crimes including stalking, forced marriage, FGM and the those set out in the Domestic Abuse Act; we have committed to more than doubling the number of adult rape cases reaching court; we published the end-to-end rape review on 18 June; and we want to improve the number of rape cases being referred by the police, being charged by the CPS and reaching court. I have already mentioned the victims Bill. In July, we published the tackling violence against women and girls strategy, and we hope that also will help us better target perpetrators and support victims of these crimes, which disproportionately, although not exclusively, affect women and girls.

I turn to Amendment 78B, which would increase the maximum penalty for publishing the identity of sexual assault victims—currently a summary, non-imprisonable offence—to two years in custody. We do not dispute that the current maximum penalty is too low. Our concern, however, is that it would not be right to legislate, as the amendment does, only for the Sexual Offences (Amendment) Act 1992.

The naming offence in Section 5 of that Act protects complainants in sexual assault cases and was later extended to cover human trafficking cases as well. The effect of this amendment would be that the penalty for breaching these restrictions would be markedly different from the penalty for other offences also involving the breach of anonymity. Two of these, in relation to female genital mutilation and forced marriage, are modelled on the 1992 Act, and it therefore would be difficult to impossible to justify treating these identical offences differently from the 1992 Act offence.

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[Lord Falconer of Thoroton (Lab)]

Having very kindly accepted that the maximum is wrong, the Minister’s only point appears to be that it would put it out of sync with these others. What work is being done in the Ministry of Justice and when can we expect to see legislation bringing them all to a position where there is an appropriate maximum sentence? This matters very considerably to victims of a Section 1 crime.

[Lord Wolfson of Tredegar (Con)]

My Lords, it certainly matters. I am a little concerned that the noble and learned Lord has seen my notes because that was precisely the point to which I was coming when he intervened. I am grateful for the intervention and for the points made by my noble friend Lord Sandhurst and the noble Lord, Lord Faulks, which I endorse. We need consistency and a fair approach in this area. We will begin by drawing up, as my noble friend Lord Sandhurst invited us to, a list of relevant offences, to ensure that we capture this issue fully.

[Lord Falconer of Thoroton (Lab)]

I am sorry to interrupt again, but when that has been done, what is the next stage?

[Lord Wolfson of Tredegar (Con)]

There may be others, but I am coming to the next stage. The noble and learned Lord is very keen.

Also part of the framework is the law of contempt of court, which we must consider if we are to look at this area properly. In some circumstances, it might be an alternative to charging the appropriate breach offence, although conduct is usually dealt with as a contempt only where some harm to the administration of justice was likely. It also does not attract the investigatory powers which these offences attract.

My right honourable friend the Attorney-General has already independently asked the Law Commission to examine the law of contempt in this regard. I could not say this in Committee because at that point I was saying that we would invite the Law Commission to do it. In fact, they have already committed to such a review. We have asked them to add in the breach of anonymity offences, both for Section 5 and related offences.

The noble and learned Lord says “years”. It will take some time, but the alternative is to legislate on a piecemeal basis. I do not want to explain to a victim of FGM who is named why she is being treated less favourably than a victim of any other offence. We want consistency in this area. If we have a Law Commission to ensure that we look at the law holistically in an appropriate way, it will deliver a coherent approach to penalties for all offences involving breach of reporting restrictions.

Moving to Amendments 78C and 78D, the unduly lenient sentence scheme allows anyone—the CPS, victims, witnesses, or members of the public—to ask for certain sentences imposed by the Crown Court to be considered by the law officers, where that sentence is felt to be unduly lenient. I underline that point. Anybody can ask the law officers to consider referring the sentence to the Court of Appeal. I am afraid that a number of my colleagues at the Bar have taken the view that it is somewhat improper for Members of Parliament to invite the Attorney-General so to consider. I underline again that anybody can ask the Attorney-General to consider referring a sentence to the Court of Appeal. That is how the scheme operates. It is then for the law officers to decide whether to refer the case to the Court of Appeal, which may then decide to increase the sentence.

Amendment 78C places a duty on the Secretary of State to nominate a government department to inform victims of the details of the scheme. We recognise the importance of victims being aware of the scheme and being clear on how it operates. However, the duty is not necessary. The revised Code of Practice for Victims of Crime—the victims’ code—which came into force on 1 April, already provides victims with the right to be informed about the existence of the scheme. Furthermore, it includes a requirement for the witness care unit to inform victims about the scheme following sentencing. Therefore, that provision is unnecessary.

Turning to the timing point, an application by the law officers to the Court of Appeal must be made within 28 days of sentencing. The absolute time limit of 28 days reflects the importance of finality in sentencing. That point of finality in litigation is sometimes marked by a Latin tag, which I will not trouble your Lordships with, but it is particularly important when it comes to sentencing. While we will keep the operation of the scheme under consideration, including the time limit, there are no current plans to remove the certainty of an absolute time limit in any circumstances.

Amendment 78E would expand the circumstances where a whole life order would be the starting point to include cases of murder involving the abduction and sexual assault of a single person. I explained in Committee that of course we sympathise enormously with the concerns that underpin this amendment, but we do not agree with its purpose. Our current sentencing framework can and does respond to these horrendous cases. The courts can, and do, impose lengthy sentences that fully reflect the gravity of this type of offending and the appalling harm that it causes to families of victims and the community generally.

All those convicted of murder already receive a mandatory life sentence. The murder of a single victim involving sexual conduct has a starting point, when determining the minimum time to be served in prison—the tariff, as it is sometimes called—of 30 years. This can be increased depending on the circumstances of the individual case and the presence of aggravating factors. Additionally, as was demonstrated by the sentencing of Wayne Couzens for the horrific murder of Sarah Everard, there is an existing discretion to impose a whole life order if the seriousness of the individual case is exceptionally high, which Wayne Couzens received.

Amendment 82B, tabled by the noble Baroness, Lady Brinton, seeks to prevent the release on home detention curfew of any offender who has previously breached a protective order and who has been convicted of offences relating to stalking, harassment, coercive control, or domestic abuse. I set out in Committee the importance that we attach to this area. The noble Baroness was quite right to refer to my comments made in another part of the Palace at an event organised by the right reverend Prelate the Bishop of Gloucester, and I stand by them.

I have asked officials to consider the risks presented by such offenders, to ensure that all appropriate safeguards are in place to protect victims and the public and to ensure that unsuitable offenders are not released on home detention curfew. Once that review is complete, I will update the noble Baroness and the House. Despite the fact that we were not able to arrange a meeting in the last 48 hours, I or the Minister for Prisons will be happy to meet with her. I do not believe that legislating on this matter is proportionate or effective in safeguarding victims. The safeguarding can be achieved via the policy framework, without the need for any change in statute.

We are committed to ensuring that serious sexual and violent offenders serve sentences that reflect the severity of their crimes. For those reasons, I urge noble Lords not to press these amendments.

[Baroness Chapman of Darlington (Lab)]

I am grateful to noble Lords, and particularly to the Minister for his comments in response to the amendments tabled by my noble friend Lord Ponsonby.

On Amendment 78A, clearly it is right that mitigating factors are taken into account and that remorse, guilty pleas and assistance with prosecution are considered; no one is arguing anything to the contrary. However, I put it gently to noble Lords that it is important that sentencing adapts as attitudes in society evolve. I suggest to those noble Lords who were so outraged that we might want to change the system with regard to rape that attitudes towards that crime have changed. That is a very good thing and we should welcome it. However, public confidence in how rape is handled is in crisis.

All rape is violent, often with life-changing consequences for the victim, and we will continue to press the Government on this. I am pleased that women are speaking up with confidence and demanding this kind of change. Speaking personally—although I know that is not something you can properly do from the Dispatch Box—I find the frequent emphasis in this discussion on the idea that there are different degrees of rape, that “There’s rape and then there’s rape”, troubling. As I say, though, we will return to this in future because the women of this country will demand that of us.

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[Lord Sandhurst (Con)]

My Lords, I support the amendment. I am conscious that the Bill is on Report. This is a probing amendment, but it raises an important and pressing point. I hope I shall be short. I make four points.

If this offence is taken on its own, I think we would all agree that two years is plainly an insufficient maximum. Let us assume for these purposes that an offender comes before the court, is not a murderer and has not been a party to the death of any victim, but has had access to the bodies and has done what Mr Fuller did. It appears that he committed many offences of sexual penetration of corpses to which he had access by virtue of his employment. It may not be common, but we simply do not know what someone may do in the future. It is an appalling prospect, but we simply cannot exclude the possibility that a non-murderous necrophiliac might offend in a similar way. I suggest that we must do all we can both to deter and to punish in that event. If there is no murder but a large number of offences, is 10 years really too long a maximum sentence for someone such as Mr Fuller?

I talk about punishment because it is impossible to contemplate the horror of a relative who learns that their deceased loved one was defiled in this way. We as society owe it to such a relative, who is truly a victim, to show that we respect the dead and will mark such behaviour in a way that demonstrates that respect.

When I was approached by the noble Baroness to help her on this matter, I asked the Library to do some research. It very helpfully uncovered materials relating to the debate that took place in 2003. There was the Home Office’s consultation paper of July 2000, and section 8.6 addressed this issue. It disclosed that at that time, somewhat to the authors’ surprise, there was no offence that made necrophilia illegal. The consultation disclosed that there was

“no firm evidence of the nature or the extent of the problem”,

but agreed that

“human remains should be shown respect”

and noted that

“relatives and friends would be deeply distressed”.

In section 9.2, that consultation addressed sentences for a range of offences. From my reading of the Government’s response in November 2002—I do not criticise anyone for this—it appears that the authors at that point may have proceeded on the assumption that the offence would follow and be additional to a charge of murder or manslaughter. In other words, it was not looked at on the basis of a stand-alone sexual deviant.

If we are looking for a comparator, brief research has disclosed what happens in Canada, where the offence carries a maximum sentence of five years. I question whether even that is sufficient in the worst case, but I leave it to others to consider.

To conclude, this is a most unpleasant criminal offence. It must be reconsidered as a matter of priority. The current sentence for the stand-alone offence is simply too low. I urge the Government to address this with dispatch and not to delay once the immediate clamour over the Fuller case has died down. It is not difficult. It simply needs a suitably steep maximum sentence to mark its gravity.

[Lord Wolfson of Tredegar (Con)]

My Lords, Amendment 78DA, moved by my noble friend Lady Noakes, is in regard to the maximum penalty for the sexual penetration of a corpse. I first place on record my shock and horror at David Fuller’s horrifying offending; my thoughts are with the victims and their families. I assure the House that the Government are committed to looking in detail at what happened in this appalling circumstance to ensure that it simply never happens again.

As we have heard, just this afternoon Mr Fuller has been sentenced to a whole-life term of imprisonment. An investigation into other aspects of his offending is ongoing. The House will understand why I will not comment on the sentence passed in this case, but I thank all those in the police, the CPS and the wider criminal justice system for bringing him to justice.

The Government have announced an inquiry into the events that occurred in hospitals in Tunbridge Wells. This will help us understand how the offences took place without detection in the trust, identify any areas where early action by the trust was necessary and consider wider national issues, including for the NHS as a whole. The Government have already made good progress in establishing the independent inquiry. I understand from colleagues in the Department of Health and Social Care that the inquiry’s chair, Sir Jonathan Michael, has developed draft terms of reference already and will engage with the families on them in the new year before they are published.

As well as that inquiry, I assure the House that the Ministry of Justice is reviewing the existing penalties available for the offence of sexual penetration of a corpse. The statutory maximum penalty for that offence is, as my noble friend indicated, two years’ imprisonment.

I reassure your Lordships, however, that that is the statutory maximum penalty for one offence. Where the offence is sentenced alongside other offences, each offence will be sentenced individually. The overall sentence passed will therefore reflect the totality of the offending behaviour.

I also pay tribute to my noble friend’s work in supporting the inclusion of this offence when it was debated during the passage of the Sexual Offences Act 2003. It was created primarily to deal with a different circumstance—different circumstances were in mind at the time. The focus was on the situation where a murderer abuses the corpse of their victim after death, and it was therefore perhaps thought likely that those sentenced for this offence would, for the most part, be sentenced at the same time for another offence, such as murder—which of course carries a mandatory penalty of life imprisonment. As we have seen in the Fuller case, that is sometimes the case but may not always be so.

It is therefore right that, in view of this depraved—which is not a word I use often, but I think is appropriate in this context—and horrifying offending where we have seen an individual commit this offence independently of other offending in relation to that victim, we review the current statutory maximum penalty for the Section 70 offence. It may also be that this review, and the public inquiry into the offending in hospitals in Kent, will highlight other issues that need to be considered relating to the existing offences that deal with sexual abuse of corpses.

To be clear, I am not saying—I cannot this afternoon —that the Government will adopt the specific approach taken in this amendment, but neither do I rule out future changes to the maximum penalty. Rather, we are reviewing the maximum penalty in its context, and speaking with DHSC officials to ensure that learning from the inquiry into events in hospitals can be taken into account into our review of the penalty. That is the best way to reach a considered conclusion about how to amend Section 70 appropriately.

As to timing, the inquiry into the events at hospitals in Kent is due to publish interim findings in the new year, with the full report at a later stage. I will write to my noble friend, and place a copy in the Library, with any further information on the inquiry’s timescales as soon as that is available. Our review of the available maximum penalties is likely to follow a similar timescale, to ensure that findings from the inquiry can be taken into account in our conclusions. It is therefore important that we await the findings of the inquiry before amending the current legislation. I listened carefully to how my noble friend opened this short debate, and I therefore ask her formally to withdraw this amendment.

[Baroness Noakes (Con)]

My Lords, this has been a short but important debate, and it will be particularly important for the families of those who died who were abused by that man. Clearly, they have suffered hugely. My noble friend is right to point out that I made clear that this was a probing amendment and therefore have no intention of pressing the amendment. My main purpose was to ensure that the Government are set upon dealing with this issue properly, and I was much reassured by what I heard from my noble friend. With that, I beg leave to withdraw my amendment.

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[Baroness Burt of Solihull (LD)]

My Lords, I just want to associate myself with the comments of my noble friend Lord Beith. I will reserve my comments until after the Minister has spoken.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am extremely grateful to the various Members of the House who have spoken. These amendments relate to offenders serving sentences of imprisonment for public protection, known as IPPs. We had a heartfelt and powerful debate on this issue in Committee; the mood during today’s debate has been equally apparent. I should say that, throughout this time, I have personally received a lot of emails from families affected by IPP sentences. I put on record that I have read all of them, even if I cannot reply to them all individually.

Let me go through the amendments and set out the Government’s position clearly. First, I make it absolutely clear that the Government recognise that more work needs to be done in relation to this group of prisoners. On that basis, the Government intend to bring forward an amendment at Third Reading. I will give details of that amendment in a moment; let me first set out the work done so far.

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[Lord Moylan (Con)]

Before my noble friend sits down, I heard what he said, but if the Justice Select Committee in the other place was to recommend a reduction in the qualifying period from 10 years to five years, would he at least give his personal undertaking to do his very best to ensure that the Government found an opportunity to legislate for that at the earliest possible time?

[Lord Wolfson of Tredegar (Con)]

I am not quite sure of the meaning of a personal undertaking from me to ensure that the Government will find an opportunity. I hope the House will appreciate that I have personally put a lot of time and effort into this matter. When I see the Justice Select Committee’s report, that time and effort will not diminish.

[Lord Blunkett (Lab)]

My Lords, I am not sure this is protocol, but it might help progress if I indicate to the House that, in discussions with the Minister, we had come to an understanding that we were taking steps forward in a way that would start to unlock this problem. In what he has just read out, the Minister has fulfilled what he agreed with me, and I trust him. On that basis, I recommend to colleagues that we accept the offer of the Third Reading amendment and the commitments that have been made on both procedure and recall, and we move forward on that basis this evening.

Police, Crime, Sentencing and Courts Bill

Lord Wolfson of Tredegar Excerpts

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

Moved by

[Lord Wolfson of Tredegar]

83: Schedule 13, page 243, line 36, leave out from “State” to end of line 37 and insert—
“(6) Regulations under this section are subject to—(a) the negative resolution procedure, where under subsection (1)(b) the regulations specify a period, and(b) the affirmative resolution procedure, in any other case.””Member’s explanatory statement
This amendment requires regulations under new section 395A of the Sentencing Code to be subject to the affirmative resolution procedure if they apply indefinitely.

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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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[Baroness Blower (Lab)]

My Lords, it is late, and I have very little to add to this debate, since it has already been extensively outlined by the noble Lord, Lord Dholakia, and other speakers, save this. I have extensive experience of working with educators from many jurisdictions, including all those mentioned by the noble Lord, Lord Dholakia, and many beyond. Some will have, as I have myself, worked with a small number of 10 year-olds who, for a variety of reasons usually to do with adverse childhood experiences, behave in ways that are exceedingly difficult to manage—and some can, under certain circumstances, become aggressive or violent. But what I know is that educators from all those jurisdictions, in general, understand that 10 is simply too young to be an age of criminal responsibility, and many from the countries mentioned by the noble Lord, Lord Dholakia, and many others are astounded it is 10 in England.

Ten year-olds, as my noble friend Lady Chakrabarti has said, need to be nurtured if they have hitherto had circumstances in their short lives that have damaged them seriously. In my own view, 12 is still too young to be an age of criminal responsibility, and had the noble and learned Baroness, Lady Butler-Sloss, been able to be in her place tonight, she would certainly, I am sure, have listed all the jurisdictions that have an age significantly above 12, as well as notably, as referenced by the noble Baroness, Lady Bennett, the UN Convention on the Rights of the Child. But it is the case that a move from 10 to 12 would be a move in the right direction, and I hope the Government will consider this seriously.

[Lord Wolfson of Tredegar (Con)]

My Lords, we have two amendments before us in the sense of concept. I will take Amendment 88A first and then Amendments 89 and 90 together—they raise quite discrete issues.

Amendment 88A is twofold. It requires the centralised monitoring of youth remand decisions made by the court and the laying of a report of findings before Parliament on an annual basis. On centralised monitoring, as I made clear in Committee, courts will now be required to provide the reasons for their decision in writing. This will be provided to the child, their legal representative and the youth offending team, and it goes beyond what courts already do at present. The record will therefore provide qualitative information, which is not currently readily available. That will enable us and partners in the criminal justice system to understand and better monitor the reasons given for the use of custodial remand.

However, those decisions are complex. We should not prescribe in law at this time how the information should be collected and processed. I am also mindful not to impose unrealistic burdens on operations. As I have indicated previously, HMCTS is also currently designing a new digital case management system, which will deliver better data capturing and reporting. We will consider the best way to collect, analyse and, if appropriate, publish that information.

On the second point, as I explained in Committee, my department already regularly publishes statistics on remand: youth justice statistics are published annually; youth custodial statistics are published monthly. I hope the noble Lord, Lord Ponsonby, will agree that our objectives are in fact aligned here, and understand the need for pragmatism at this time. I therefore urge him to withdraw Amendment 88A.

Amendments 89 and 90, spoken to by the noble Baroness, Lady Chakrabarti, would raise the age of criminal responsibility from 10 to 12 years and require a review of the age of criminal responsibility. As I have said before, the primary objective of the youth justice system is to prevent children offending in the first place. Where it occurs, we must provide the police and courts with effective tools to tackle offending. That is why we believe that setting the age of criminal responsibility at 10 is the correct response. It provides flexibility in dealing with children and allows for early intervention with the aim of preventing subsequent offending.

Importantly, having the age of criminal responsibility at 10 does not preclude other types of intervention where they would be a better and more proportionate response. This could include diversion from the criminal justice system in the first place. I can answer with a simple “yes” my noble friend Lord Attlee’s question about whether the age of the child is taken into account by the CPS as part of the public interest test. Diversion from the criminal justice system is happening in practice. There has been a dramatic fall since 2009 in the number of children aged between 10 and 12 years in the youth justice system. We want that downward trend to continue.

As I said in Committee, no 10 or 11 year-old has received a custodial sentence since 2010. The noble Lord, Lord Ponsonby, talked about never seeing a 10 or 11 year-old in court. In response to the specific point about criminal damage or arson, in 2020, 171 children were proceeded against for either criminal damage or arson. Of those, the number aged either 10 or 11 was zero. We discussed the appalling Bulger case in Committee. It is a rare case, but it is important that when awful cases such as that arise, we have the correct mechanisms to deal with them.

The fact is that there are a range of approaches across Europe—and the wider world—to the age of criminal responsibility. Other European countries also have an age of criminal responsibility set at 10. The noble Baroness, Lady Blower, said that she was astounded that we had the age of 10, but so does Switzerland—not a country one normally associates with human rights breaches—and I suggest that neither Switzerland nor the UK is in contravention of our international obligations.

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[Baroness Bennett of Manor Castle (GP)]

The Minister referred to the diversion of young people who might end up in the criminal justice system but are sent down other paths. Can he tell me, either now or in the future—I understand that he may not have the figures to hand—whether the Government have statistics on the demographic characteristics of which children get diverted and which go into the criminal justice system? I am aware that I recited quite a few figures, but they show that there is a greatly increased percentage of children from certain backgrounds who seem to end up in the criminal justice system, which suggests that diversion is working for some but not for others.

[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.

Police, Crime, Sentencing and Courts Bill

Lord Wolfson of Tredegar Excerpts

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

[Baroness Blower (Lab)]

My Lords, it is a pleasure to follow the noble Lord, Lord Carlile of Berriew. As some noble Lords will know, I spoke on issues relevant to this amendment at an earlier stage of the Bill.

In quoting the Taylor review, the noble Lord, Lord German, made the case for his Amendment 90A. It would be singularly inappropriate—I think this was the point made by the noble Lord, Lord Carlile—to debar all local authorities from setting up appropriate provision simply because of the use of the word “academy”. This is wrapped up with other aspects of educational policy. If the local authority is capable of providing what would manifestly be the best institution and provision for this group of young people, who need absolutely the best quality of education that can be afforded to them, it should do so. I take the view that the provision in Amendment 90A should categorically be in the Bill to ensure that we do not debar any local authority from engaging in the process to set up an institution. As has already been said, this does not require that local authorities should do it but it does not debar them; debarring them would be unreasonable.

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

My Lords, this group of amendments covers Part 9 of the Bill. I will cover the group in two parts, if I may.

Amendment 90A in the name of the noble Lord, Lord German, would allow local authorities to establish and maintain secure academies either alone or in consortia. The noble Lord kindly mentioned the sustained engagement that he has had with me and others on this matter; in turn, I acknowledge my gratitude to him for his time and commitment. As he mentioned, I wrote to him and the noble Lord, Lord Marks, outlining that, in our view, it would be legally possible for a local authority to set up an entity capable of entering into academy arrangements directly with the Secretary of State, and that this is not prevented by the Academies Act. Therefore, as I set out in that letter, there is no legal bar to what the noble Lord wants to happen. I understand that, as he said, he wants to put the matter “beyond any doubt”, but I have explained in writing that there is no legal doubt on this point at all; indeed, I think I heard him accept this afternoon that it is “clear” there is no legal bar. I therefore say to him and the noble Baroness, Lady Blower, that there is no issue of being debarred here. I suggest that the amendment is therefore unnecessary.

I accept that the Government’s policy remains that academy trusts are not local authority-influenced companies and that our position on secure schools is to mirror academies’ procedures. However, I can confirm that, when considering the market of providers of future secure schools, my department will assess in detail the potential role of local authorities in running this new form of provision. We of course recognise, as the noble Lord, Lord Carlile of Berriew, noted, that local authorities have a long-established role in children’s social care and the provision of secure accommodation for children and young people. In particular, the secure children’s homes legal framework may present a more straightforward route than the 16-19 academies framework for the expansion of local authority involvement in the provision of secure accommodation. However, I reiterate that there is no legal bar here. I therefore suggest that the amendment must necessarily be unnecessary.

I now turn to Amendments 90B to 90F, in the name of the noble Lord, Lord Ponsonby of Shulbrede. Local authorities have a duty, under the Children Act 1989, to ensure sufficient, appropriate accommodation for all the children they look after and to ensure sufficient children’s homes for other children whose welfare requires it, whether or not they are looked-after children. I recognise that some local authorities have sometimes found it difficult to access the most appropriate accommodation, particularly for children with the most complex needs. It is right to say, both from the judgment of Lord Justice Baker, which was mentioned, and indeed from other judgments, that some of these children have extremely challenging and very complex needs. It is also the case that, sometimes, children are placed in locations away from home when they may be better served by a placement in their local area if one were available. We are looking carefully at that, not only in my department but in others as well.

We are taking significant steps to support local authorities to fulfil their statutory duty. We have started a programme of work this year to support local authorities to maintain existing capacity and to expand provision in secure children’s homes to ensure that children can live closer to home and in provision that best meets their needs. In the spending review we announced £259 million to continue this programme to maintain and expand capacity in both secure and open residential children’s homes. We acknowledge, as the noble Lord, Lord Ponsonby, said, that it may take—I will use the same phrase—some time to see all the benefits of that capital investment, particularly when you are talking about new builds, but it is the case that the capital programme will also result in increased capacity in the secure children’s home estate in the shorter term as we seek to create more beds through investment in a range of projects, including extensions of current buildings, refurbishments and rebuilds. I know that in the judgment referred to by the noble Lord, Lord Justice Baker used the phrase “urgent attention”, and that is what we are giving this problem.

Ofsted has also taken steps to support local authorities in this area. It has an amended process to make it easier for local authorities or other providers to apply for registration of children’s homes in emergency situations. It is also now easier to open and run a single-bed children’s home, which can be one of the most commonly needed types of accommodation when the child has very complex needs. It can be almost impossible, sometimes, to have more than one child in that location. Ofsted has now published guidance on these changes, and I hope that will help as well.

Before I sit down, I should also remind the House of two other relevant pieces of work ongoing in this area. First, the independent review of children’s social care, which commenced in March last year, is looking at this whole area in a fundamental way. Secondly, also in March last year, the Competition and Markets Authority launched a market study examining the lack of availability and increasing costs in children’s social care provision, including children’s homes and fostering. It has proposed a number of changes, of which I will not go into detail now, but they are important. We will look at the full reports when they come out. I expect both of those pieces of work to be serious and substantial reports.

I recognise the aims of all noble Lords who have supported these amendments; we all share the same aims here, but I suggest that we have existing statutory requirements and significant, wide-ranging and independent reviews under way, looking at the whole care system, alongside that CMA market study. For those reasons, I hope the noble Lord, Lord German, will withdraw his amendment and the noble Lord, Lord Ponsonby of Shulbrede, will not press his. I urge them to do so.

[Lord German (LD)]

My Lords, I am deeply grateful to all who have contributed and to the Minister, who has not been able to go beyond the text of the letter that he sent to my noble friend Lord Marks. Although I understand that, it just reinforces the position that I outlined at the beginning.

To reiterate the point made by the noble Lord, Lord Carlile of Berriew, we are seeking the best, and to not leave out a potential bidder who could be one of the best is all that this amendment is about. It is simply to make sure beyond doubt. We understand that there is a legal route through this. I did not read out the exact words that the Minister repeated, but there is a route through—although he does say that it would place burdens on local authorities. Interestingly, and moreover, he said earlier that it also conflicts with the policy of academies.

The one thing the Minister did say, both in replying and in his letter, was that they will keep this issue under review. The problem with keeping something under review is that the process will already have started, and keeping it under review does not mean that there will necessarily be any changes or any scrutiny in this House.

The noble Lord said that there are two routes: the academy route, which local authorities will be excluded from, and secure family accommodation, which they want to encourage local government to do. Charlie Taylor’s review and report seek integration, not silos. It would be sensible to make sure that, at this point, there is absolutely no doubt. For the simple reason that we have to be able to search for the best and get the best, this amendment should be part of the Bill and not part of some future discussion—which may or may not produce a sensible outcome, as far as I am concerned. I am therefore minded to seek the view of the House on this matter.

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[Baroness Chapman of Darlington (Lab)]

My Lords, it is a pleasure to speak in this debate because I have been making speeches on this topic for 12 years. I believe, if memory serves, that I was the Front-Bench speaker in the other place who proposed the amendment to the LASPO Bill. It is quite extraordinary. I think it is now 22 years since this was first suggested and, as others have said, we have had the Corston report. We cannot have a debate on women in prison without reference to my noble friend Lady Corston—Jean Corston—and the work that she has done. The idea of a women’s justice board has been around for so long because it is such a good idea. There is so much evidence of the impact, and probably the savings, that it would make, should we take that path.

There is a long-accepted problem—and I know the Minister accepts that there is a problem—with the failure of the criminal justice system properly to address the needs of female offenders. This leads to poor reoffending rates and devastation for families, with children often bearing the brunt. The social and economic cost is enormous. Women make up only 4% of the prison population and are still too easily overlooked in policy, planning and investment decisions for the reasons that my noble friend Lady Kennedy outlined so well. Female offenders are different from male offenders: they have different health needs, including pregnancy, miscarriage, breastfeeding and menopause. We know that these issues are neglected, and we know the failure to tailor provision for women affects reoffending rates.

The frustration is that the Government agree with all this, yet they seem constantly to fail to move the dial. Unfortunately, according to the excellent work done by the Prison Reform Trust, fewer than half, I think, of the commitments made in the Government’s Female Offender Strategy, which was published in 2018, have been met so far. We know that community sentences can be more effective than short prison sentences, yet the use of community sentences is dropping—it has dropped by two-thirds since 2010. Community provision for women needs to be so much better, and the quality everywhere needs to improve. There are many excellent projects, but provision is way too patchy. One of the functions of a women’s justice board, like the Youth Justice Board, would be completely to transform that.

The Government’s Female Offender Strategy is not being delivered quickly enough. This leads many of us to conclude that a new lead organisation for female offenders would make the difference. Since my noble friend Lady Corston’s report, understanding of female offending has improved so much—this is a real positive—and the Government have played their part in this. I believe Ministers want to act and want female offending to improve. I hope the Minister is not just going to stand up and say “We are making progress—bear with us”, because we can all see that it is inadequate. Nothing that has been done so far is making a sufficient difference. Interventions in this space are too often short-term. They leave the fundamentals of substance misuse, mental health, housing, financial literacy and domestic violence unaddressed. We know that self-harm in women’s prisons has reached record levels. The situation is getting worse, not better. More than 20% of self-harm incidents involve women, with 12,000 incidents in 2020 compared to around 7,500 in 2016. A strategy is great, and we need a strategy, but we need leadership to ensure that delivery takes place. A women’s justice board would provide the strategic framework to identify and prioritise the specific needs of women within the criminal justice system.

Having been around this a few times now, the Government have previously argued that this can be achieved through ministerial working groups or strategies, and it could have been done, but the truth is that so far it has not. Many of us will have visited women’s prisons and seen what happens. One of the most upsetting things I have ever seen was when I was present for visits where women were interacting with their preschool children. The response of the women and the children was difficult for prison staff as well. That was an annual thing in that prison—once a year that happened. There is no central co-ordinating body able to identify best practice and make sure it happens everywhere. We fail on that because the Government do not have that central body. Women are going out; they are not making progress—reoffending is as bad as it has ever been. I feel we have come to a point where it is time to bite the bullet and accept the idea of a women’s justice board.

[Lord Wolfson of Tredegar (Con)]

My Lords, as noble Lords will be aware, we debated these amendments in Committee. At that time, they were withdrawn without a vote, although I acknowledge that, as the noble Lord, Lord Marks of Henley-on-Thames, fairly said, those who spoke in Committee overwhelmingly supported the amendment.

I have of course listened very carefully to the various speeches and points made around the House this evening. I think it is fair to say that the arguments in support can perhaps be distilled in four points. I set them out not to make the case against me stronger but perhaps at least to reassure the House that I have understood it. First, the Youth Justice board model has been a success in reducing the number of children entering the youth justice system or custody and, therefore, it is an appropriate model to follow as the needs of women are distinct. Secondly, sometimes their needs are similar, for different reasons, to the needs of children. Thirdly, women are often victims as well as offenders and largely commit non-violent and low-level crime. Fourthly, a women’s justice board would provide the effective leadership and drive to address the particular needs of women in the criminal justice system and divert them before they come into contact with that system by preventing offending in the first place. The House should therefore be reassured that the Government and I have understood and considered carefully the case. As the noble Lord, Lord Marks, said, we have had a number of very helpful discussions about it.

The Government recognise that women who are in or at risk of contact with the criminal justice system have distinct needs that require a distinct approach, and we have acted in a practical sense on that recognition. We published the Female Offender Strategy, which sets out a comprehensive programme of work to respond to those needs, and we remain committed to its delivery. The Advisory Board on Female Offenders provides external and independent oversight of the strategy, but my ministerial colleague in the other place, Minister Atkins, has also asked officials to review the wider governance arrangements for the strategy to ensure that they are fully fit for purpose to support the work across government which is vital to deliver the strategy.

I explained in Committee why the Government are not persuaded that the Youth Justice Board is the right model for addressing the needs of women. To take up the point made by the noble Lord, Lord Ramsbotham, and others, I again underline that I agree and accept that the Youth Justice Board has done extremely good work in its area. There is a short point here, but I suggest it is very important. We have a separate youth justice system. The Youth Justice Board is a reflection of that different system. It is a specialised justice board for a specialised and separate justice system. That is not just to make the physical point that children are still maturing, so the justice system applies to them differently. It is to make the point that the youth justice system is significantly different from the adult justice system in a number of respects.

Let me set out a number of them. First, with youth justice, there is a statutory aim

“to prevent offending by children and young persons”.

That is from the Crime and Disorder Act 1998. There is a greater focus on prevention and diversion. Custody is used as a last resort, as it is in the adult system, but there is greater focus in the youth justice system because there are separate community services provided by youth offending teams, which are part of local authorities. There is a separate youth court with specially trained magistrates with different sentencing powers. There is a separate sentencing framework for children that does not apply to adults. Of course, there is also an entirely separate custodial estate, which is managed in an entirely different way.

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[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 Wolfson of Tredegar Excerpts

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

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

My Lords, we agree with the noble Lord, Lord Ponsonby, on the amendments he moved or spoke to on proceedings involving children and health screening, and with the noble Lord, Lord Carlile. We support those amendments, but I will speak to Amendment 97CA from the noble Lord, Lord Pannick, on the use of live links in jury trials, to which I have put my name.

This amendment raises two important questions about the nature of juries and of jury trial. First, how important is it to the trial process that juries see and hear witnesses give their evidence live? Secondly, how important is it to the trial process that the relationship and balance between judge and jury is live rather than remote? On the first issue, the noble Lord, Lord Macdonald, and the noble and learned Lord, Lord Brown, made the point that jury trials depend, more than anything else, upon the ability of jurors to weigh up the evidence of witnesses. They have to assess two things: veracity, or whether the witness is trying to tell the truth, and accuracy, or whether he or she has got it right.

As others, including the noble Lords, Lord Pannick and Lord Carlile, have said, after nearly two years of the pandemic we have all become completely familiar with the process of remote discussion and meetings. None of us, I feel, would now argue that remoteness makes no difference. In this vital area of our national life, as the noble Baroness, Lady Bennett of Manor Castle, pointed out, we entrust decisions about the guilt or innocence of those charged with serious crimes to juries of 12 who listen to and weigh up the evidence of witnesses, and make decisions about truth or falsehood, reliability or inaccuracy, honesty or dishonesty, and intent, accident or misadventure. Those jurors will certainly consider objective evidence that has the same effect when seen or heard remotely as it has when seen or heard directly. But much of the evidence they will hear, and usually the most critical evidence in jury trial cases, has to be subjectively judged, as the noble Lord, Lord Macdonald, said. That is done by references to the witnesses’ demeanour, body language, response to cross-examination and emotional responses.

These are matters on which juries might initially and quite legitimately disagree. Their assessment—the different assessments of all 12 of them—will be the subject of detailed discussion during their deliberations and depend upon impressions. We would be undermining our jury system by depriving jurors of the opportunity, in the case that they decide, to share their experiences of the witnesses and the experiences that they have had live. I do not believe that undermining the jury trial in this way can possibly be justified.

On the second point about the presence of the judge, counsel and jury in the same place, the role of the judge and jury and the relationship between them is a delicate one. I agree with the noble Lord, Lord Pannick, that the judge’s position is to ensure that trials are conducted in a responsible and serious way. I also think there is considerable importance in that relationship that the independence of juries is maintained. A stock sentence that judges quite properly use when summing up is when they tell the jury, “It is a matter for you, members of the jury,” and it is.

However, for juries to make the decisions they are charged with making, they must not feel to be, seem to be or, still less, actually be at a disadvantage compared to the judge who has seen and heard and assessed the witnesses live. When the judge recounts a particular piece of evidence in summing up, juries must not be cowed or persuaded into accepting what they may perceive to be the judge’s view of the evidence. They must be able to say to each other: “He or she may have said that, but I did not believe that witness—did you see how scared they looked?” That is what jury independence means. Jury independence is fundamental to our system and why it is so important. For that reason, I completely support the amendment from the noble Lord, Lord Pannick.

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

My Lords, this group contains amendments covering the application of live links to children and vulnerable people as well as to remote juries. I will come to the remote juries point separately later.

First, to make sure that we are all on the same page, I remind the House that Clauses 168 and 169 do not mandate remote or video hearings. How a hearing is to be conducted is a matter for judicial decision on a case-by-case basis. These clauses ensure that, if appropriate, observers can watch a hearing taking place to ensure that the principle of open justice can be maintained.

Amendments 97A and 97B seek to prohibit remote observers from being present in all cases in which a child is among the parties. Amendment 97C similarly seeks to remove children from the application of Clause 170. I suggest both these amendments are unnecessary and would inhibit both the principle of open justice—which is a fundamental principle in this jurisdiction—and the principle of judicial discretion. It would inhibit the ability of courts to use audio and video technology where the court sees fit and when it is in the interests of justice to do so.

I turn first to Amendments 97A and 97B. The effect of these amendments would be that all such remote hearings would effectively have to be held in private, including, for example, any multiparty litigation in our civil courts or tribunals in which a single claimant—perhaps one of a number of claimants—is under 18. That would unnecessarily constrain the transparency of our justice system and impede the principle of open justice.

While I accept the sentiment that underpins the amendments, they are unnecessary because we have sufficient tried-and-tested legislation in place to safeguard the privacy of children in these proceedings. That is set out in Section 47(2) of the Children and Young Persons Act 1933. We also have existing procedure rules under which the court can hold any hearing in private in order

“to protect the interests of any child or protected party”.

Therefore, I suggest to the House that that statutory provision and the procedure rules provide sufficient protection to safeguard the privacy and well-being of young people in the justice system, whether the hearing takes place in-person or remotely.

Amendment 97C would prevent the court making a direction to enable any participant in a hearing to attend by live link where a child is party to proceedings. Again, it is important to protect the interests of children, but we have clear support and guidance in place which mandates the court to consider and have regard to the welfare of the child, to make sure that each child is fairly assessed and represented, is sufficiently supported, can understand what is happening, and is able to engage and participate in proceedings and be kept safe. That is set out in the Criminal Procedure Rules and criminal practice directions.

I recognise, as the noble Lord, Lord Carlile of Berriew, said, that, in the majority of cases, it may well be more appropriate for children to attend a hearing in person, and the Criminal Procedure Rules recognise this. But one must recognise that there may be situations where it is more beneficial for a child, whether as a witness or a defendant, to participate by live link; for example, to protect a child witness from having to be in court with the defendant. Clause 170, as drafted, gives the court that inherent flexibility.

I will come to Amendment 97D in a moment but let me first turn to Amendment 97CA, tabled by the noble Lord, Lord Pannick, which seeks to exclude juries from the provisions in Clause 170 that would otherwise allow a jury assembled together to take part in a trial through a live video link, where appropriate and where the court has decided that it would be in the interests of justice to do so. I will come to the detail of the amendment in a moment, but let us not lose sight of one important point. This amendment is designed to strengthen and support the jury system. It is designed to ensure that we can continue to hold jury trials in circumstances where it might otherwise be impossible, as we experienced for a certain time in this jurisdiction during the pandemic. I am pleased that we were one of the first jurisdictions in the world to get jury trials back up and running, but we could not do as many as we would normally because of the social distancing constraints.

Why are we so keen to maintain jury trials? The answer is simple and perhaps a little topical. The jury is a fundamental part of our criminal justice system. To adopt the words of the noble Lord, Lord Pannick, it is a cornerstone of our liberty. True it is that the cornerstone gets a little defaced with some graffiti from time to time, but it is, none the less, a cornerstone of which we should be proud.

The noble Baroness, Lady Bennett of Manor Castle, threw something of a gauntlet down to me. I am very happy to pick it up, briefly. Juries sometimes return verdicts that raise an eyebrow, but I know from bitter experience that it is not unknown for judicial decisions to trouble the eyebrows too. In a proper case, there is a procedure, once the jury has brought in its verdict, to ask the Court of Appeal to consider and determine specific points of law to assist in future cases without disturbing the actual jury verdict in the instant case.

If the noble Baroness wants to have a crack at my right honourable friend the Attorney-General, she can, but she cannot, I am afraid, stand up and have a crack at her while betraying fundamental ignorance of the underlying legal principles. Counsel in the case himself said that his arguments were “new and complex”. Those are precisely the points which would be suitable for reference under Section 36 of the Criminal Justice Act 1972, a provision with which I am sure the noble Baroness is very familiar. I am also sure that she has read the recent case in the ECHR of Handzhiyski v Bulgaria, decided on 6 April 2021, which discussed in terms whether the provisions of Article 10 of the ECHR did or did not apply to a charge of criminal damage.

I am very happy to respond on the glories of the jury system, but I respectfully suggest that, if the noble Baroness is going to make a point about the conduct of the Attorney-General, she looks at the underlying legal position first. There are certainly points in the Colston case which an Attorney-General might properly decide to, or not to, refer to the Court of Appeal. That is a matter for the Attorney-General.

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[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 Wolfson of Tredegar Excerpts

Report stage
Wednesday 12th January 2022 Lords Chamber

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

My Lords, I am pleased that the noble Baroness, Lady Meacher, is able to be with us this afternoon—and in good health, I hope—having been unavoidably detained during the debate in Committee. It is good to have been able to hear from her directly on an issue that is of evident interest to a number of Members of your Lordships’ House. I have listened carefully to the points made by everyone, including the noble Baroness, Lady Jones of Moulsecoomb, the noble Lords, Lord Ramsbotham and Lord Laming, the noble and right reverend Lord, Lord Sentamu, my Front Bench colleagues and others to whom I will come.

I hear and feel the mood of the House and the noble Lords who spoke in support of the amendment. I also heard my noble friends Lord Cormack and Lord Hodgson of Astley Abbotts ask for some favourable and encouraging comments from me. The truth is that I do not really need any persuading on the importance and use of restorative justice. I agree that, in the right circumstances, it can certainly have far-reaching benefits.

Indeed, since we discussed this in Committee, I have spoken at the Council of Europe Justice Ministers meeting, which was specifically about restorative justice. On the upside, the meeting was held in Venice; on the downside, I had to appear virtually. Despite that, I was pleased to welcome the declaration on restorative justice made by that meeting. I talked about our history in the UK of exploring and embedding the appropriate use of restorative justice across the criminal justice system. The Venice declaration calls for the sharing of knowledge, best practice and scientific research on restorative justice. We are committed to playing our full part in this.

Turning to the amendment, it seems to be intended to address a concern that the Bill does not include provision for restorative justice by requiring the Secretary of State to publish an action plan every five years. As I explained in Committee, restorative justice is not just communication between victim and perpetrator. We consider that the concept of restorative justice extends to other parts of the Bill in the sense that we now have a new system for out-of-court disposals because the conditions attached to those disposals again provide an opportunity for intervention and support for offenders and appropriate input from the victim of the crime.

The new statutory two-tier framework replaces the current adult out-of-court disposal options. There must be conditions attached to both of the new proposed cautions, fulfilling one of three objectives: rehabilitation, reparation or punishment. These provide an opportunity for intervention and support for offenders. A restorative justice referral could also be an appropriate condition of a caution where the victim and offender agree to this.

I agree with my noble friend Lord Cormack that we should divert people from prison where we can; indeed, that is part of the Sentencing Code. I also agree with the noble Lord, Lord Paddick, that prison and restorative justice are not necessarily—I emphasise “necessarily”—alternatives. I remind the noble Baroness, Lady Meacher, that, so far as the sentencing White Paper is concerned, the Bill provides for the greater use of deferred sentencing; this also provides opportunities for restorative justice in the deferred sentencing process.

Over and above that, we are concerned that victims know about restorative justice. Under the victims’ code, they now have the right to be provided with information about restorative justice and how to access restorative justice services in their local area. We continue to provide funding to PCCs to provide support services for victims of crime, which include restorative justice as well.

On 9 December, we launched a consultation, “Delivering Justice for Victims”, the first step towards what we hope will be a landmark victims’ law—a Bill which will build on the foundations of the victims’ code to substantially improve the victim’s experience of the criminal justice system. We propose to place the key principles of the code in primary legislation and are considering the roles and duties of PCCs in relation to victims. However, to repeat a point that I made in Committee—I think that it was also the point that the noble Lord, Lord Ponsonby of Shulbrede, was reaching for—restorative justice is not always appropriate. For some more serious types of offending, it may not be appropriate. The welfare of the victim must always be paramount. I am thinking of some sexual violence and rape cases. We should not have an exhaustive list—even for those cases it is a case-by-case basis—but there will be cases where restorative justice would be unfair on the victim. The victim must always consent but should never feel forced into a process that they are not 100% comfortable with.

The probation service is also working on a new framework for restorative justice, to ensure a more consistent approach, focusing on the people for whom it will make the biggest difference. Having said that, the broad policy aim is that all victims can, if they wish, take part in restorative justice at a time that is right for them. Again, restorative justice does not have to be immediately at the sentencing date. It could be months or even years in the future. It is not a one-time-only option.

It remains the case that we are working very hard in this area. We share the aims and ambitions of the noble Baroness. The evidence base for restorative justice exists. Services are available. Victims should and will be made aware more clearly of their availability. However, requiring rolling action plans will simply create an unnecessary and overly bureaucratic burden. It will cost a lot more without any concrete benefit.

I support restorative justice in principle. I hope that is crystal clear. I cannot promise my noble friend Lord Hodgson of Astley Abbotts that we will see restorative justice, or any other form of justice tempered with mercy, from the Australian cricket team, but that lies well outside my capabilities. So far as the amendment is concerned, with a strong endorsement of the principles of restorative justice, I invite the noble Baroness to withdraw it.

[Lord Paddick (LD)]

My Lords, the Minister seemed to suggest that, in any form of restorative justice, a victim might be compelled or forced to engage in the process. I think that is what he said. Can he reassure me that it was not?

[Lord Wolfson of Tredegar (Con)]

I was saying absolutely the opposite and, if it came out wrong, it came out wrong. The whole point of restorative justice is that the offender and the victim have to consent. That is the point which I was making about crimes of sexual violence. The victim there should not feel under any compulsion or pressure to engage in restorative justice if they do not want to. Victim choice and free-will participation is at the heart of restorative justice. I hope that I have made that very clear.

[Baroness Meacher (CB)]

My Lords, I thank the Minister for the warm and encouraging words that we were asking for. Unfortunately, they do not give us any reassurance that there will be a restoration of some sort of national leadership on this issue. As I explained in my brief comments, this is what is missing and why restorative justice is languishing. He said that victims should have access to restorative justice, which is very difficult when only 5% of them are aware of being told about it. There is a major issue of lack of information, lack of understanding and lack of national leadership. This was a small suggestion to put these things right and I very much regret that the Government will not take it on. Having said that, of course I will withdraw my amendment.

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

My Lords, we support all the amendments in this group. First, I will consider Amendment 104B. As explained by the noble Lord, Lord Ponsonby, this amendment would authorise a special measures direction to enable videorecording of cross-examination of complainants in criminal proceedings for sexual offences or modern slavery offences, in order to enable their evidence to be given remotely.

This is a sensible measure for the protection of witnesses not only from alleged perpetrators but from the trauma of giving evidence in these difficult and painful cases. We have heard many times in debates on this Bill and on the Domestic Abuse Act how painful an ordeal giving evidence is likely to be. In the absence of a special measures direction, complainants who are witnesses have to give evidence before strangers, often in the presence of their assailants or exploiters and often under hostile questioning, to relive some of the most painful experiences of their lives. Nor should we forget how, in these cases, recording the evidence of complainants might well be the very best way of securing truthful and accurate evidence so that courts might be better placed to do justice than if they had to rely on the live oral evidence of very frightened and intimidated witnesses.

We also support Amendment 104C in the names of the noble Lord, Lord Ponsonby, and the noble Baroness, Lady Jones of Moulsecoomb, because we have heard that Section 41 applications, if granted, permit the most intrusive and personal questioning of complainants about their previous sexual history. Such questioning might sometimes legitimately be regarded by a court as necessary in the interests of justice, but even when that is the case it nevertheless involves a gross invasion of the privacy, the sense of decency and the perceived rights of the complainant. The noble Lord and the noble Baroness are entirely right to seek the protections for the complainant that the amendment involves: the right to take part in the application or not at her choice, because it is generally a woman’s choice; to be legally represented; and to have a right of appeal against a direction admitting questioning or evidence of previous sexual conduct.

These Section 41 applications and the fear of the questioning they involve have been a reason for the large numbers of sexual offences going unreported or unprosecuted, as complainants are not prepared to go through the hell of facing such cross-examination and they pull out of cases for fear of it. They should be entitled to significant legal protection, just as if they were parties, when such an important issue for their personal integrity is considered by the courts. The protections proposed in the amendment are fully justified.

Finally, we support Amendment 107C on rape and serious sexual offences units—the so-called RASSO units—for the reasons given by the noble Lord, Lord Ponsonby, on behalf of the noble Lord, Lord Coaker, and by my noble friend Lord Paddick. I will try not to repeat the points he made.

Historically, there has been a problem, which we should not seek to deny, in ensuring that police forces treat rape and serious sexual assault with the importance these offences merit. It might be that the situation has improved, and I have no doubt it has. In most forces, victims are treated sympathetically, with tact and care, and derive support from the officers handling their case. However, the public, and women in particular, still lack confidence in the treatment they are likely to and do receive from the police if they are victims of sexual assault. This is one of the factors again driving the low rate of reporting and prosecutions, and the high rate of the withdrawal of complaints. The noble Lord, Lord Ponsonby, gave us the figures, with which we have become familiar.

Specialist units are likely to concentrate expertise and experience of dealing with rape and serious sexual offences in the hands of those who really know about them. This amendment concentrates on the specialist training of the staff in such units. That is critical. Such units have the potential to improve the evidence-gathering process and ultimately, one would hope, the reporting and the prosecutions of offences and the conviction rates, which, as we know, are appallingly low.

All the amendments in this group identify serious issues and propose practical, worthwhile and achievable solutions. In respect of each of them, I suggest it would be helpful for the Government simply to accept them or to come back with alternatives to similar effect at Third Reading.

[Lord Wolfson of Tredegar (Con)]

My Lords, I recognise that behind all these amendments is a dedication to improving the way in which the criminal justice system handles sexual offences cases and supports victims. On both those points, that dedication is shared by the Government. It is absolutely right that we do as much as we can to support all victims, including those of sexual offences, and help bring to justice those guilty of those very serious crimes. I know that there is no disagreement between us on the need to continue to improve the victims’ experience of the criminal justice system, and of the important role that special measures, such as Section 28, can play in supporting victims and witnesses to provide their best evidence.

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

My Lords, the effect of Amendment 104D would be to increase the maximum sentence for criminal damage with intent to destroy life-saving equipment from 10 years’ imprisonment to life imprisonment. I listened very carefully to the noble Baroness, Lady Chapman of Darlington, and her harrowing accounts of the vandalising of life-saving equipment and the damage and consequences of that. I also listened to the noble Earl, Lord Attlee, and the noble Baroness, Lady Jones of Moulsecoomb, and it is very clearly necessary that the Government make it clear how they will respond to the issue of vandalising life-saving equipment.

The behaviour comprising the offence is extremely serious because it carries the risk that life will be endangered by the damage caused. However, if I may adopt a slightly lawyerly approach to the amendment, I question whether it is necessary. The scheme of the Criminal Damage Act, as amended, is that under Section 4 an offence of criminal damage generally carries a maximum sentence of 10 years. However, Section 1(2)(b) of that legislation states that where the offence is arson or, as stated, is committed by a person

“intending by the destruction or damage to endanger the life of another or being reckless as to whether the life of another would be thereby endangered”,

the maximum sentence is increased to life imprisonment. That is the combined effect of that subsection and subsection (4).

I understand that the intention of the noble Baroness in moving the amendment on behalf of the noble Lord, Lord Ponsonby, would be to cover criminal damage to life-saving equipment with the intention of endangering life. However, given that by Section 1(2)(b) the offence is committed where a person commits criminal damage recklessly as well as intentionally in relation to endangering life—which means where the offender deliberately takes a risk that the damage he causes may endanger the life of another—I cannot at the moment see that such behaviour does not cover intentionally destroying or damaging life-saving equipment without lawful excuse. Nor can I at the moment see how, in the absence of such an intention or recklessness as to life being endangered, a maximum sentence in excess of 10 years would be justified on normal principles.

Consequently, I await hearing from the Minister with interest. He may or may not accept the slightly lawyerly approach that I put, but I hope that he will give some reassurance about how the Government propose to respond to the problem of vandalising life-saving equipment.

[Lord Wolfson of Tredegar (Con)]

My Lords, this amendment was debated just a few weeks ago when the Government set out why we believed it was unnecessary, given the scope of the Criminal Damage Act 1971. I will come back in a moment to what the noble Lord, Lord Marks, called a lawyerly point.

However, it is right first to remind ourselves, as the noble Baroness, Lady Chapman, did, of the very real consequences of this sort of behaviour. On the death of Sam Haycock in Ulley reservoir, can one begin to imagine what his parents Simon and Gaynor went through and are, no doubt, continuing to go through? One only has to say it to try to grasp to enormity of that. The noble Lord, Lord Marks, used the word “harrowing”. That is spot on. This relates to the appalling behaviour of the people vandalise equipment, which results in the requirement of having to make a telephone call to get hold of a life ring, defibrillator or whatever life-saving equipment it happens to be.

I turn to the legal position, as I am afraid we have to, given that we are considering an amendment to a Bill. The noble Lord, Lord Marks, is correct. I explained that it is already an offence intentionally or recklessly to damage or destroy property, including life-saving equipment. Section 1(2) of the Criminal Damage Act 1971 makes a specific provision for an aggravated offence of criminal damage where the defendant intends to endanger life or is reckless about such endangerment. To that extent, it goes beyond the scope of the amendment, which relates only to intention and does not include recklessness. As the noble Lord said, that offence already attracts the possibility of life imprisonment.

Of course, I understand that part of the reason why it is proposed to add a specific offence is to put beyond doubt that the law will punish those who damage and destroy vital life-saving equipment, whether they intend to do so or are reckless as to the risk. The concern was raised in Committee that it is not well known that causing damage to life-saving equipment means that Section 1(2) of the Criminal Damage Act 1971 could be in play and therefore carry a potential life sentence. However, if the concern is that that is not well known, I would question whether it would make a real difference if this Bill were amended essentially to repeat that point of law. The ordinary citizen, particularly the people who carry out this appalling behaviour, is still as unlikely to understand or perhaps care about the consequences and penalties associated with the crime. Therefore, I suggest that the ultimate problem here is not a question of a gap in legislation or a lacuna in the criminal law but people knowing what the law is and bringing home to people the likely criminal consequences of their actions.

In response to my noble friend Lord Attlee, as I suggested in Committee, if the law is not enough of a deterrent, we must focus on those responsible for water safety, health and safety, and law enforcement to come together to find out what is not working and identify workable solutions that might include sign- posting more clearly on the equipment the consequences of damaging that equipment. That might be a way forward. However, I share with the noble Baroness, Lady Chapmen, that these are abhorrent acts of criminal damage that should be prosecuted. The sentence must fit the crime. There is a potential maximum sentence of life imprisonment.

The noble Baroness, Lady Jones, put the question: why are the Government making destroying statues a criminal offence if destroying life-saving equipment is not a criminal offence? The problem with that question is that destroying life-saving equipment is a criminal offence. So far as statues are concerned, the next instalment is due on Monday, so I will leave the matter for then.

However, so far as today is concerned, while sharing very much the sympathies behind the amendment, I invite the noble Baroness to withdraw it.

[Baroness Chapman of Darlington (Lab)]

I am grateful to the Minister for what he had to say and I do understand that creating a new offence or separate provision may not have the desired effect of reducing these horrendous instances. It is right that we want to stop that happening and I welcome his comments about working together, perhaps with local authorities and police forces, to do more creative things to try to prevent this. I beg leave to withdraw the amendment.

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[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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[Baroness Chapman of Darlington (Lab)]

Clearly, we agree with everything that has been said. Rather than repeat it all, I will just compliment the noble Baroness, Lady Coussins, on her amendment. We will listen carefully to what the Minister has to say.

[Lord Wolfson of Tredegar (Con)]

My Lords, having begun my response to the previous group with an apology for getting a date wrong, I then went on to get another date wrong. The case of Antia is, for those noble Lords keen to read it, 2020 and not 2000. The rest of the legal analysis, I hope, remains unchanged. I will seek to avoid any reference to dates in what I am about to say.

This amendment would restrict the Ministry of Justice to appointing in our courts and tribunals only interpreters who are registered on the National Register of Public Service Interpreters and who possess a level 6 diploma in public service interpreting or comply with the national register’s rare language status protocols. I place on record at the outset my thanks to the noble Baroness, Lady Coussins, the noble Lords, Lord Pannick and Lord Hogan-Howe, and others for their time engaging with me.

This is a very important issue. The noble Lord, Lord Berkeley of Knighton, noted that it goes to compassion, which is correct. As the noble and learned Lord, Lord Hope of Craighead, said, it also goes to the heart of the justice process. Anyone who has done a case with interpreters knows how important their role is. Indeed, I remember one case where, when the witness answered a question of mine, it was interpreted through a language I knew, and I knew that it had been interpreted wrongly. The judge also picked up that the interpretation was wrong and the witness himself criticised the interpretation, thus illustrating that the presence of the interpreter was unnecessary, and they were dispensed with.

We currently commission the service of interpreters for our courts and tribunals through our contracted service providers, thebigword and Clarion interpreting. The contract has a clearly defined list of qualifications, skills, experience and vetting requirements interpreters must meet, which have been designed to meet the particular needs of the justice system. The highest complexity level has qualification criteria comparable to those set by the NRPSI. They are sourced from the MoJ register, which is audited by an independent language service provider, The Language Shop. All interpreters must have 100 hours of experience and complete a justice system-specific training course before they can join the register.

As the noble Baroness said, the overall failure rate of all quality assurance assessments remains low, at 5%. We believe that illustrates the effectiveness of the auditing measures. Complaints about quality are also carefully monitored and independently assessed by The Language Shop. The complaint rate remains low, at less than 1%.

I am confident that there are no systemic quality issues with the current arrangements. None the less, I discussed this in some detail with the noble Baroness and others and we want to improve the quality of the service we provide, if that is possible, right across the justice system. That is why I am commissioning a full independent review of our existing qualifications and standards and the requirements for each type of assignment our contract covers. There are over 1,000 of these—I do not have a list to hand. This will also consider experience levels and rare language requirements. The review will be completed in time to inform the retendering of our contracts in 2023. It will establish a detailed framework of the standards and qualifications required for all assignments covered by the contracts, with clear explanations and justifications for each. The aim is to ensure that our contracts continue to meet the demands of all our court users.

We will continue to consult external stakeholders, including the NRPSI—its input is highly valued. We will learn from other schemes, including the police-approved interpreter and translation scheme, which adopts a level 6 diploma in public service interpreting as a minimum qualification standard, but with safeguards to allow for exceptions as needed to ensure timeliness in progressing a case.

We understand that there are issues about the availability of NRPSI-registered interpreters in some parts of the country—40% of them are based in London. Under our current arrangements, we can control and direct recruitment for our register based on geographical and language needs. This is tied in to the supplier’s obligation to fulfil bookings and ensures that we can dictate recruitment trends to meet our requirements.

I cannot say at this stage whether the police-approved interpreter and translation scheme would be suitable for the Ministry of Justice. We are concerned not to have a one-size-fits-all approach; even within a court setting, interpreting in a criminal court is quite different from interpreting, for example, in the family jurisdiction. It is not only court settings; there is telephone interpreting for court custody officers, and service centres require interpreting assistance to support court users paying fines or responding to general inquiries. However, we will look at the outcome of the review. All the options we consider will need to be fully costed in accordance with government policy for large government procurements to ensure value for money for the taxpayer.

The review will be undertaken. We have already started some work; we want to establish the most appropriate and cost-effective solution, one which meets the current and future needs of the justice system and promotes the continued development and progression of new entrants into the interpreting profession. With renewed thanks to the noble Baroness for her time and the discussions we have had, including on the option of a full independent review, which I hope I have set out clearly, I respectfully urge her to withdraw the amendment.

[Baroness Coussins (CB)]

I thank all noble Lords who have contributed to this debate. I especially offer my thanks to the Minister and warmly welcome his decision to commission a full independent inquiry into the qualifications, experience and overall standards of all the different types of interpreters for court work. I look forward to seeing the terms of reference, the timetable and other details of this inquiry. I feel optimistic that professional bodies in the field will also feel encouraged by this development and welcome the decision. With that in mind, I beg leave to withdraw my amendment.

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[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 Beith (LD)]

To clarify, is the noble Lord saying that when the department looked into this matter it discovered more evidence in respect of sport and religion than in other fields, or some specific evidence that made it clear that this was much more likely to occur in sport or religion?

[Lord Wolfson of Tredegar (Con)]

As I say, we discussed this with a wide range of people, and it seemed to us from looking at all the material that sport and religion are the particular areas where law at the moment should intervene. I was coming to this point. The noble Lord presented the amendment saying, “Abuse can take place in other relationships too”, and of course he is absolutely right. However, abuse can take place where there is no relationship at all, and I am afraid it can take place in lots of different relationships. The question here is when the law should intervene to prohibit automatically, regardless of the particular 17 or 19 year-old and whether any abuse is taking place, to prevent any sexual contact. For those reasons, we consider that at the moment, we should intervene—I will come to the delegated power—in sport and religion only. Those settings involve high levels of trust, influence, community recognition, power and authority, and these figures are often well-established, trusted and respected in the community.

The report of the Independent Inquiry into Child Sexual Abuse found that religious organisations

“may have a significant or even dominant influence on the lives of millions of children”

and that

“what marks religious organisations out from other institutions is the explicit purpose they have in teaching right from wrong.”

Also, both sport and religion can provide a young person with a strong sense of belonging, whether in a team, a squad, a community or a faith. Such deep feelings held by the young can provide unique opportunities for predators to exploit or manipulate and can make it more difficult for the young person or concerned relatives to report abuse.

With respect to sport specifically, the physical nature of the activities means that coaches often ostensibly have legitimate reason physically to touch the children and young persons they are coaching. A sports coach will often have opportunities for closer and more prolonged physical contact compared with other roles, and this can be manipulated by abusers. That is why, to respond to the point made by the noble Lord, Lord Pannick, the 18 and a half year-old tennis coach would be prohibited from having a relationship with a 17 and a half year-old tennis student, but the 18 and a half year-old chess coach could have such a relationship —assuming for these purposes that chess is not a sport; I do not need to decide that because it is a physical definition that is in the Act—because there is not that scope, ostensibly, for a physical relationship.

The noble Lord’s amendment addresses dance specifically. Again, let me reassure him that the definition of “sport” in Clause 46 includes types of physical recreation engaged in

“for purposes of competition or display”.

We consider that this includes dance.

On the delegated power for the Secretary of State to amend new Section 22A, we accept that new evidence may emerge that may justify legislating further. Let me reassure the House and put it on record that this power will not be used lightly, but nor will we wait until instances of abuse are brought to our attention. We will proactively monitor data on child sexual abuse to ensure that we have the evidence needed to inform policy and act decisively where required, including evidence relating to the nature of roles and the institutional or organisational context, the level of power and control, other factors which we have seen contribute to abuse including opportunities for extensive unsupervised contact, and any inherent risks posed to young people as well as any data on incidents of concern. We are establishing channels through which partners such as the police, the CPS and local authorities can share emerging evidence and highlight patterns of behaviour.

Some of the behaviour that has been mentioned this evening and in Committee is already covered under other offences within the Sexual Offences Act 2003. Let us be clear: sexual activity with someone under the age of 16 is a crime. Non-consensual sexual activity such as rape is obviously a crime. I certainly heard the word “rape” in at least one example mentioned by the noble Lord, Lord Paddick. We are not talking about that—that is the point—because rape is already a crime. We are talking about sexual activity which would otherwise be lawful and consensual. I did not quite catch all the examples, but one cited was from a newspaper in Scotland where somebody had done something. How old was the person? If they were under 16, it is already caught. Was there consent? If there was not, it is already caught. One has to be careful when one is talking about evidence. We will be proactive in looking for that evidence and, for the avoidance of any doubt, we will of course re-read the examples that he gave us.

I accept that Clause 46 does not represent everybody’s preferred approach, but we believe that, on the material that we have at the moment, our approach strikes the appropriate balance between the protection of young people and the sexual freedoms and rights otherwise granted to 16 and 17 year-olds, while still allowing for rapid responses to emerging patterns of abuse in the future. For those reasons, I respectfully invite the noble Lord to withdraw the amendment.

[Lord Paddick (LD)]

Before the Minister sits down, can he clarify two points? First, is he saying that those people who teach drama, music and dance should be allowed to exploit their positions up until the point that they rape or indecently assault somebody, or does he agree with my noble friend that action should be taken to prevent that in the first place? Secondly, what is to stop a teacher of a young person who wants to engage in sexual activity with them distancing themselves from their teaching role to enable that to take place? How on earth does this amendment change the age of consent?

[Lord Wolfson of Tredegar (Con)]

I am struggling with that second point, but let me try to answer the first. On whether I am saying that anybody should be allowed to exploit a young person, the answer is no. Frankly, I do not understand how the noble Lord has reached that conclusion. There is nothing in the provisions about justifying exploitation or abuse up to the point of rape and assault. Maybe this is the confusion that he is under in relation to the second question. At the moment, if someone is caught in a position of trust—let us say, for example, a minister of religion who is 18 and a half—that person is prevented from having any sexual contact with, say, a 17 and a half year-old congregant. Before that person was ordained or appointed to the position as a minister of religion, that person could have had a sexual relationship with a 17 and a half year-old. That is why I am talking about changing the age of consent, because that 17 and a half year-old is able to sleep with an 18 and a half year-old but not if that 18 and a half year-old is, for example, her minister of religion. I hope that answers the noble Lord’s second question, although I confess I did not quite understand it because, if I may say so, it seemed to proceed from a fundamental misapprehension of what we are talking about.

[Lord Beith (LD)]

My Lords, one thing I want to say in response to the Minister is that, as I said earlier, there are many thousands of people engaged in the training of young people in many contexts, but particularly in some of these fields very close contact and continuous interchange is involved, including activities in which the contact is physical. That applies not just to sport but to teaching someone how to hold their violin and their violin bow; it applies to all sorts of activities. There are spheres too in which the relationship is affected by the authority of the training person, the desire to please that person and to be successful in the activity. The more the Minister described those activities, the more it seemed that what he described happens not just in sport and religion but in many other areas as well.

It is important that we remind society that vast numbers of people are engaged in this kind of training work entirely selflessly and giving great service to young people. They are people we recognise and support. A very small number of people do everybody else so much damage by the kind of abuse referred to in the course of the debate. Unfortunately, we still have to deal with it, which means we have to talk about it, debate it and devise laws that work for that purpose.

I would much have preferred to see a wider clause that used the concept of a position of trust in a series of places in which it is clearly relevant. The Government have preferred to retain power by statutory instrument to make extensions to the list, and the Minister, in response to my request, tried to give a bit more indication of the sort of circumstances involved. He has said that they are not just waiting for cases; they will look to the views and experience of organisations in the field. That could usefully be done. If organisations in any of the fields I have talked about respond to the Government by saying, “Yes, it would help us in our disciplinary and regulatory arrangements if this power was extended”, then I hope that is the kind of information that might lead Ministers to come before the House to make use of those powers. I certainly do not want them to be waiting for cases. I am serious in my concern that some cases will arise where abuse has taken place that otherwise falls within the definitions in this clause but where the position of trust appellation has not been applied because it is in one of the other groups—it is not sport or religion.

This is a serious problem that undermines the wonderful work that so many people do with young people, and the wonderful achievements of those young people in sport, drama, music and the arts. We have to keep it under continuous review but, at this stage, I beg leave to withdraw the amendment.

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Moved by

[Lord Wolfson of Tredegar]

107A: After Clause 46, insert the following new Clause—
“Voyeurism: breast-feeding
(1) Section 67A of the Sexual Offences Act 2003 (voyeurism: additional offences) is amended as follows.(2) After subsection (2) insert—“(2A) A person (A) commits an offence if—(a) A operates equipment,(b) A does so with the intention of enabling A or another person (C), for a purpose mentioned in subsection (3), to observe another (B) while B is breast-feeding a child, and(c) A does so—(i) without B’s consent, and(ii) without reasonably believing that B consents.(2B) A person (A) commits an offence if—(a) A records an image of another (B) while B is breast-feeding a child,(b) A does so with the intention that A or another person (C) will look at the image for a purpose mentioned in subsection (3), and(c) A does so—(i) without B’s consent, and(ii) without reasonably believing that B consents.”(3) In subsection (3), for “and (2)” substitute “to (2B)”. (4) After subsection (3) insert—“(3A) In this section a reference to B breast-feeding a child includes B re-arranging B’s clothing—(a) in the course of preparing to breast-feed the child, or(b) having just finished breast-feeding the child.(3B) It is irrelevant for the purposes of subsections (2A) and (2B)—(a) whether or not B is in a public place while B is breast-feeding the child,(b) whether or not B’s breasts are exposed while B is breast-feeding the child, and(c) what part of B’s body—(i) is, or is intended by A to be, visible in the recorded image, or(ii) is intended by A to be observed.””Member’s explanatory statement
This new Clause creates new offences of recording images of, or otherwise observing, breast-feeding without consent or a reasonable belief as to consent. To be guilty of the offence the perpetrator must be acting for the purpose of obtaining sexual gratification or of humiliating, alarming or distressing the victim.

[Lord Wolfson of Tredegar (Con)]

My Lords, in moving government Amendment 107A, I first thank sincerely all those in both Houses who have campaigned on this important issue, particularly the noble Baroness, Lady Hayman, and all those who spoke in the debate in Committee in this House. I know that she wanted to be here this evening, but I am afraid the hour has prevented her doing so. It is right to put on record my thanks for the tireless work she has done in this area, and for the time she gave on a number of occasions to discuss this issue with me. The noble Lord, Lord Pannick, has also been extremely helpful on this point, and I thank them for joining me in putting their names to the amendment.

I made it clear in Committee that the Government supported the aims of the original amendment put down by the noble Baroness but considered that it was too broadly drawn and would capture conduct that ought not to be criminalised. In particular, I explained in a series of to-and-fro discussions with the noble Lord, Lord Pannick, that the issue of intention needed to be more carefully addressed.

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[Baroness Chapman of Darlington (Lab)]

We wholeheartedly welcome this, and we welcome how the Minister can laugh at himself and bring good humour to this. I think it is okay to have a sense of humour about this issue; what matters is that we are finally dealing with it. This really is important. Encouragingly, breastfeeding rates are improving in this country; over 80% of women start to breastfeed their baby when they are born, but the rates fall quite dramatically, with around 25% continuing at six weeks. There are lots of reasons for that, but one of them is about feeling uncomfortable breastfeeding in public. We should be doing everything we can to normalise breastfeeding and make breastfeeding mothers feel welcome and supported, wherever and however they choose to feed their babies.

There are two amendments in this grouping: one is the government amendment, which we completely support, and there is also the issue about needing to show intent for sexual gratification or humiliation. It was thoughtful of the Government to include that word, and I just want assurance that the perception of humiliation that ought to matter is that of the woman breastfeeding and being photographed. That ought to be sufficient to prove that there was an intent to humiliate. I would welcome some clarification from the Minister on that point.

We warmly welcome this measure. Breastfeeding women will be very pleased that the Government have come to a place where they see things in the way that they do.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am very grateful for the warm words from across the House and for the support this amendment has received. I will pick up a couple of the points made. First, I respectfully agree with the noble Baroness, Lady Chapman, that we want to normalise and support—to use her verbs—women who are breastfeeding; that is very important. It is a matter for my department in this legislation and for other government departments in other areas. That is certainly our aim.

I will try to answer the question put by my noble friend Lord Blencathra. This amendment is modelled on the upskirting offence in the Voyeurism (Offences) Act 2019. We want—without getting myself on “Have I Got News for You” for a second time—to avoid capturing people within the offence who ought not to be captured. Let me try to give a different example. The point made by my noble friend was about forgetting intention and purpose. The problem there, for example, could be that if you were running CCTV in a children’s play area and a mother was breastfeeding, you would be taking images of her; you would not have her consent, nor any reasonable basis to think that she was consenting to being filmed. Therefore, you could be committing a criminal offence. That is why here, just like the upskirting offence, there has to be a purpose of sexual gratification or humiliating, alarming or distressing the person photographed.

The noble Baroness asked me about “humiliating”. I again thank her for spotting that word, which comes from the other Act. It is a really important word. I will put it this way: the fact that the person subjectively feels humiliated does not necessarily mean that it is done for the purpose of humiliation. There is not a one-for-one correlation. However, any court will have to ask the question: was this for the purpose of humiliation? That is a question for the court to decide. You look at the circumstances objectively. The fact that the person feels very humiliated is a very important part of answering that question. But I cannot go so far as to say that the subjective feeling of humiliation necessarily answers the legal question. I hope that has answered the noble Baroness’s question. This is an issue that arises in other areas of criminal law as well. Without delaying the House, I hope that that is a sufficient answer for this evening. I am very happy to engage with the noble Baroness further on this.

[Baroness Chapman of Darlington (Lab)]

I appreciate that and understand what the Minister is saying. Is he saying that, if it could be reasonably expected that a breastfeeding woman would feel humiliated in the particular circumstances, that would be interpreted as humiliation? On the point about the CCTV, I think most breastfeeding women would not feel humiliated in that circumstance.

[Lord Wolfson of Tredegar (Con)]

The question which has to be asked is: was this done for the purpose of humiliating the woman breastfeeding? To answer that you would look at all the relevant circumstances. I would suspect that, rather like the upskirting offence, in the vast majority of cases the question almost answers itself, given our experience from upskirting.

In this area, as in all areas, if, once the offence has gone into the law, it turns out that there is a problem in prosecuting—for this reason or any other—we will keep it under review, because our intention is to stop the conduct, to make it criminal and thereby punish people who engage in it—but, I hope, to stop it. If there are problems, we will keep it under review, and I am very happy to continue the conversation on that. I will draw my remarks to a close and invite the House to support the amendment.

Amendment 107A agreed.

Moved by

[Lord Wolfson of Tredegar]

107B: After Clause 46, insert the following new Clause—
“Time limit for prosecution of common assault or battery in domestic abuse cases
After section 39 of the Criminal Justice Act 1988 insert—
“39A Time limit for prosecution of common assault or battery in domestic abuse cases(1) This section applies to proceedings for an offence of common assault or battery where—(a) the alleged behaviour of the accused amounts to domestic abuse, and(b) the condition in subsection (2) or (3) is met.(2) The condition in this subsection is that—(a) the complainant has made a witness statement with a view to its possible admission as evidence in the proceedings, and(b) the complainant has provided the statement to—(i) a constable of a police force, or(ii) a person authorised by a constable of a police force to receive the statement.(3) The condition in this subsection is that—(a) the complainant has been interviewed by—(i) a constable of a police force, or(ii) a person authorised by a constable of a police force to interview the complainant, and(b) a video recording of the interview has been made with a view to its possible admission as the complainant’s evidence in chief in the proceedings.(4) Proceedings to which this section applies may be commenced at any time which is both—(a) within two years from the date of the offence to which the proceedings relate, and(b) within six months from the first date on which either of the conditions in subsection (2) or (3) was met.(5) This section has effect despite section 127(1) of the Magistrates’ Court Act 1980 (limitation of time).(6) In this section—“domestic abuse” has the meaning given by section 1 of the Domestic Abuse Act 2021;“police force” has the meaning given by section 3(3) of the Prosecution of Offences Act 1985;“video recording” has the meaning given by section 63(1) of the Youth Justice and Criminal Evidence Act 1999;“witness statement” means a written statement that satisfies the conditions in section 9(2)(a) and (b) of the Criminal Justice Act 1967.(7) This section does not apply in relation to an offence committed before the coming into force of section (Time limit for prosecution of common assault or battery in domestic abuse cases) of the Police, Crime, Sentencing and Courts Act 2022.””Member’s explanatory statement
This amendment extends the time limit for commencing proceedings for an offence of common assault or battery in certain cases where the alleged behaviour of the accused amounts to domestic abuse.

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[Lord Wolfson of Tredegar (Con)]

My Lords, this government amendment meets a commitment to bring forward proposals on Report to address concerns that the time limit for bringing prosecutions for common assault or battery involving domestic abuse is unfairly short. I am very grateful that, joining my name on this amendment are the names of the noble Lord, Lord Russell of Liverpool, and the noble Baroness, Lady Greengross.

In response to the amendment tabled by my noble friend Lady Newlove in Committee, we acknowledged that such cases are disproportionately likely to time out. I am pleased now to present our solution to this problem—in the form of government Amendment 107B —to the House.

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[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.

Amendment 107B agreed.

Police, Crime, Sentencing and Courts Bill

Lord Wolfson of Tredegar Excerpts

Report stage
Monday 17th January 2022 Lords Chamber

Moved by

[Lord Wolfson of Tredegar]

161: Schedule 20, page 293, line 13, at end insert—
“10A_ In Schedule 24, omit paragraph 154(f).”Member’s explanatory statement
This amendment repeals an amendment of section 38(4)(j) of the Crime and Disorder Act 1998, which has been repealed.

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

My Lords, I know this is the business that most people have been waiting for. Amendments 161 and 162 have both arisen following the consolidation of sentencing procedural law into the Sentencing Code by the Sentencing Act 2020.

These amendments, as eagle-eyed noble Lords will have realised, omit provisions in Schedule 24 to the Sentencing Act 2020 and Schedule 13 to the Counter-Terrorism and Sentencing Act 2021 respectively. Those provisions are redundant, as they make amendments to provisions which have already been omitted or repealed. Omitting them will avoid any potential confusion regarding their operation. I beg to move.

Amendment 161 agreed.

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Moved by

[Lord Wolfson of Tredegar]

162: Schedule 20, page 293, line 22, at end insert—
“Counter-Terrorism and Sentencing Act 2021 (c. 11)
12_ In Schedule 13 to the Counter-Terrorism and Sentencing Act 2021, omit paragraph 44.”Member’s explanatory statement
This amendment repeals an amendment in the Counter-Terrorism and Sentencing Act 2021 of section 106A of the Powers of Criminal Courts (Sentencing) Act 2000, which was repealed by the Sentencing Act 2020.

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Moved by

[Lord Wolfson of Tredegar]

167: Clause 178, page 198, line 34, at end insert—
“(aa) section (Required life sentence for manslaughter of emergency worker);”Member’s explanatory statement
This amendment is consequential on the new Clause in the name of Lord Wolfson of Tredegar to be inserted after Clause 2 and relating to a required life sentence for the manslaughter of an emergency worker.

Police, Crime, Sentencing and Courts Bill

Lord Wolfson of Tredegar Excerpts

3rd reading
Tuesday 25th January 2022 Lords Chamber

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

My Lords, this amendment has been tabled—in haste, it appears, as I will explain in a moment—at a very late stage in proceedings. It is not clear in its intention and appears to relate to an important category of people who I do not think any of the speakers in support of the amendment referred to. I will come back to that point.

I listened carefully to the noble Lord, Lord Grocott, who said that he came cold to this matter. Far from being cold, I have had a number of warm meetings with Members from all sides of this House on all matters relating to Ministry of Justice provisions in the Bill. I regret to say that until this amendment dropped without warning, half way through my dinner last night, none of its proposers had found the time to engage with me or approach me in any way on this matter since it was debated in your Lordships’ House. That is a matter of regret, because in my relatively short time here I have found that discussions before matters are raised in the Chamber can be very useful. Had the matter been raised with me, I would have had the opportunity—and I would have availed myself of it—of pointing out some of the confusion behind the amendment and asking the noble and learned Lord whether the amendment he has tabled is in fact the amendment he wanted to table. I will come back to that point.

Having heard the words of my noble and learned friends Lord Mackay of Clashfern and Lord Clarke and my noble friend Lord Cormack, I will not get into the propriety or otherwise but will deal with the substance of the point. Harper’s law, which is the focus of the amendment, requires the imposition of a life sentence in cases where an emergency worker is the victim of unlawful act manslaughter. The intention of the amendment appears to be to restrict this to cases that involve an underlying unlawful act that is of a certain level of seriousness. My understanding is that it seeks to do so by excluding from the scope of Harper’s law those cases in which the unlawful act that underpins the unlawful act manslaughter of the emergency worker is one that, had the offender been convicted of that as a stand-alone offence, would have carried

“a maximum sentence of less than five years imprisonment.”

There is, I am afraid, real confusion as to what the amendment seeks to do. Noble Lords who enjoy it really ought to turn to page 4, line 39 of the Bill and remind themselves that this seeks to include an exception into Harper’s law. That is very important when one sees that in proposed new paragraph (c)(i) of the amendment there is a “not”, so it ends up with a double negative.

It seems to me that there are two interpretations of this paragraph and, from what the noble and learned Lord said, I am really not sure which interpretation he seeks to put forward. The first is—bear with me here—that it appears to except from that five-year maximum category, and therefore include within Harper’s law, cases in which the death was

“caused by dangerous driving or driving when under the influence of drink or drugs,”

even if the maximum penalty for the unlawful act offence was less than five years. If that is the case, it is not clear why that should be if the main thrust of the noble and learned Lord’s argument is that Harper’s law should not apply if the underlying offence carried a sentence of less than five years.

I also point out, as I am sure the noble and learned Lord knows all too well, that dangerous driving and the other driving offences here do not and cannot themselves form a basis for unlawful act manslaughter in any case, because that is the result of the decision in Andrews v DPP.

The alternative explanation of this form of words put forward by the noble and learned Lord is that the amendment appears to intend that where the unlawful act underlying the unlawful act manslaughter is one that in and of itself would attract a maximum penalty of less than five years’ imprisonment, that will be outside Harper’s law unless that act is accompanied by

“dangerous driving or driving when under the influence”,

which in the context of unlawful act manslaughter would be the circumstances that render the unlawful act dangerous.

I apologise to the House for subjecting it to a disquisition on unlawful act manslaughter but this is precisely the sort of point I would have discussed with the noble and learned Lord, had it been brought to my attention before I was halfway through my main course last night. More to the point, this would be an insertion at page 4, line 39 of the Bill; it would therefore go into proposed new Section 258A, which applies where

“(a) a person aged under 18 is convicted of a relevant offence, (b) the offence was committed … when the person was aged 16 or over”.

So, this amendment to Harper’s law, which is put forward on the basis of general principle, applies only to 16 and 17 year-olds. I did not understand from any of the speeches in favour of the amendment that the principle underlying those speeches was limited to 16 and 17 year-olds. The point was put on the basis that it ought to be of general application.

Why, I ask rhetorically, since the point has not been made, is this limited to 16 and 17 year-olds? Of course, the answer is obvious: it is not intended to be limited to 16 and 17 year-olds. Again, had this amendment been shown to me before halfway through my main course last night, I would have pointed this out, with respect, to the noble and learned Lord. What we have, therefore, is a late amendment, brought without any discussion with me or my colleagues, which fundamentally seeks to uproot the position taken by this House in Committee and on Report. It also suffers from fundamental uncertainty as to what it actually does, and the fundamental problem that it seems to apply only to 16 and 17 year-olds.

Quite apart from all of that, I simply do not see any merit in restricting Harper’s law in this way. We have already taken care to ensure that the provisions inserted by Clause 3 will apply only in cases of unlawful act manslaughter of an emergency worker who is acting in exercise of their functions as such a worker. Unlawful act manslaughter, as noble Lords certainly know by now, captures those cases where an unlawful act has been intentionally performed in circumstances rendering it dangerous, and that has caused death. It is the Government’s position that the unlawful act manslaughter of an emergency worker merits a mandatory life sentence. The seriousness of such conduct and the harm it causes both to the emergency worker—obviously—and to our wider society are evident. I respectfully see no reason to limit the sentence in the way this amendment appears to intend.

I come to the point made by the noble Baroness, Lady Kennedy of The Shaws—I respectfully congratulate her on 50 years in the criminal justice system—about discretion. There is, of course, a judicial discretion built in here; we have had this debate on several occasions during consideration of the Bill. Where the court considers that there are exceptional circumstances relating either to the offence or the offender that justify the imposition of a sentence other than life imprisonment, this could be done. I accept that some people want the exception to be broader, while some people may not want an exception at all, but that has been the Government’s consistent position throughout the Bill. I find it a little surprising that, at Third Reading, such a fundamental point is apparently up for discussion again.

Before I sit down—and I apologise to the House for delaying it—I come to the “one knock” case that the noble and learned Lord has put. If a person at a protest or demonstration were to hit a police officer who was then, for example, to fall over, hit their head and, God forbid, die, that could be captured under Harper’s law if it amounted to unlawful act manslaughter. Why is that? The reason is that what has happened here is not a simple case of battery. Under the offences made out here, the offence for which the offender would be sentenced is unlawful act manslaughter, and the Government believe that that crime, when done against an emergency worker acting as such, merits a mandatory life sentence other than where there are exceptional circumstances.

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Moved by

[Lord Wolfson of Tredegar]

3: After Clause 136, insert the following new Clause—
“Imprisonment for public protection etc: duty to refer person released on licence to Parole Board
(1) Section 31A of the Crime (Sentences) Act 1997 (imprisonment or detention for public protection: termination of licences) is amended in accordance with subsections (2) to (6).(2) In subsection (2)(a), after “Chapter” insert “(whether or not the prisoner has subsequently been recalled to prison under section 32)”.(3) For subsection (3) substitute—“(3) Where—(a) the prisoner has been released on licence under this Chapter (whether or not the prisoner has subsequently been recalled to prison under section 32);(b) the qualifying period has expired; and(c) if the Secretary of State has made a previous reference of the prisoner’s case under this subsection, the period of twelve months beginning with the day of the disposal of that reference has expired,the Secretary of State must refer the prisoner’s case to the Parole Board under this subsection.”(4) In subsection (4)—(a) in the words before paragraph (a), for “an application” substitute “a reference”, and(b) in paragraph (b), for “application” substitute “reference”.(5) After subsection (4) insert—“(4A) A reference under subsection (3) must be made, and a reference under that subsection must be determined by the Parole Board under subsection (4), even if at the time of the reference or determination the prisoner is in prison having been recalled under section 32.(4B) If at the time of the determination the prisoner is in prison having been recalled under section 32—(a) subsection (2) does not apply, and(b) subsection (4)(a) has effect as if it required the Parole Board—(i) to determine whether it is satisfied that it is not necessary for the protection of the public for the prisoner, when released, to be released on licence in respect of the preventative sentence or sentences, and (ii) if it is so satisfied, to direct the Secretary of State accordingly.(4C) Where the Parole Board gives a direction under subsection (4B)(b)(ii)—(a) if at any time the Board directs the prisoner’s release under section 28, that section has effect in relation to the prisoner as if, in subsection (5), for “to release him on licence” there were substituted “to release the prisoner unconditionally”, and(b) if at any time the Board directs the prisoner’s release under section 32, that section has effect in relation to the prisoner as if, in subsection (5), for “immediate release on licence” there were substituted “immediate unconditional release”.”(6) In subsection (5), in the definition of “the qualifying period”, after “on licence” insert “(whether or not the prisoner has subsequently been recalled to prison under section 32)”.(7) Subsection (8) applies to an application made by a person under section 31A(3) of the Crime (Sentences) Act 1997 before this section comes into force.(8) If the application has not been determined when this section comes into force, subsections (4) to (4C) of section 31A of the Crime (Sentences) Act 1997 apply in relation to it as if it were a reference of the person’s case by the Secretary of State to the Parole Board under subsection (3) of that section.(9) Subsection (10) applies if a person remains on licence under Chapter 2 of Part 2 of the Crime (Sentences) Act 1997, or remains subject to release on licence under that Chapter, following—(a) the disposal before this section comes into force of the person’s application to the Parole Board under section 31A(3) of that Act, or(b) the disposal under subsection (4) of section 31A of that Act, as it has effect by virtue of subsection (8) of this section, of the person’s application to the Parole Board under subsection (3) of that section.(10) Subsection (3) of section 31A of the Crime (Sentences) Act 1997 applies in relation to the person as if the application had been a reference of the person’s case by the Secretary of State to the Parole Board under that subsection.”Member’s explanatory statement
This amendment and the amendments in the name of Lord Wolfson of Tredegar at page 133, line 13, page 135, line 13 and page 233, line 33 give effect to an undertaking given by Lord Wolfson on 15th December 2021 (Hansard col. 359). This amendment imposes a duty on the Secretary of State to refer the case of a person who is serving a sentence of imprisonment for public protection (or the equivalent youth sentence), and has been released on licence, to the Parole Board after ten years and annually after that.

[Lord Wolfson of Tredegar (Con)]

My Lords, following my commitment and undertaking to the House on Report, I am pleased to be able to bring this package of amendments relating to imprisonment for public protection—IPP—before the House this afternoon. I thank sincerely the noble Lord, Lord Blunkett—and I understand why he is unable to be in his place today—the noble and learned Lords, Lord Brown of Eaton-under-Heywood and Lord Judge, and my noble friend Lord Moylan for their commitment to this cause and continued engagement with me on this matter. We have had a series of meetings and calls, which have been invaluable. They offered me their considerable wisdom and experience both of this subject and of this House in order to get this amendment—if I may put it this way—across the table and over the line.

It was made very clear at all stages in this House that there was enormous strength of feeling that some beneficial change for IPP offenders was both right and necessary. I am pleased that we have cross-party support for this sensible, proportionate and effective change that will provide such benefit but at no risk to public protection.

I committed on Report to bringing forward an amendment which puts the Secretary of State’s policy of automatic referral of applications to terminate the IPP licence on to a statutory footing. This would enable all eligible IPP offenders to be referred to the Parole Board for consideration for licence termination at the appropriate time. The new clause that I have tabled delivers on this commitment.

The position is that Section 31A of the Crime (Sentences) Act 1997 sets out how IPP offenders are currently able to apply for licence termination. Once the qualifying period of 10 years has elapsed—that is, 10 years from the offender’s first release by the Parole Board—this section provides that offenders can apply to the Parole Board to be considered for licence termination. In practice, the Secretary of State has made it policy to do this on the offender’s behalf, but first had to obtain consent from the offender.

The principal change in the first of the amendments in my name is in new subsection (2), which amends the wording of Section 31A so that the Secretary of State will be legally required to automatically refer the offender where the 10-year qualifying period has expired. Where the offender has previously been referred to the Parole Board for licence termination, they will automatically be referred if 12 months have elapsed since the previous reference. That removes the need for the offender to give permission for the Secretary of State to make applications on their behalf, and will enable the IPP licence to be brought to a definitive end for more offenders.

The clause also adds a new subsection to Section 31A which deals with offenders who are in custody following recall under the IPP licence. When an offender is recalled to prison, their licence is automatically revoked, so they cannot have their licence terminated while they are in prison following recall because they are no longer on licence. But, in these cases, the Secretary of State will still be required to refer the offenders to the Parole Board on the point of eligibility and every 12 months thereafter. The Parole Board will then determine whether the licence should remain in force following any subsequent release decision. It will be up to the Parole Board whether to terminate the licence of an IPP offender in custody—but these provisions are specifically intended to ensure that all eligible IPP offenders, who are either on licence or have been recalled and had their licence revoked, have the opportunity to have their licence terminated.

The remaining subsections are technical, transitional and clarificatory to ensure that the clause works correctly. But I make it absolutely clear from the Dispatch Box that time spent in custody on recall does not affect the running of the 10-year qualifying period. There are two further amendments in my name, both of which are consequential. I am grateful to the noble and learned Lord, Lord Judge, for joining me in them. The second amendment ensures that this clause operates correctly with other subsections that might prevent a referral, and the third sets the commencement date at two months following Royal Assent.

Taken as a package, these amendments appropriately balance the need to protect the public with ensuring that IPP offenders who are assessed by the Parole Board as no longer posing a risk to the public are given every opportunity to have their IPP licence, and the IPP sentence as a whole, terminated. So, with renewed thanks to those noble and learned Lords who joined me, particularly in supporting the first amendment, for their sustained engagement, I beg to move Amendment 3.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, my noble and learned friend Lord Judge has asked that I go next. I have indeed added my name to the first substantive government amendment, but I indicated that I would—and I do—make it plain that I do so without any great enthusiasm. Rather, it is on the basis that one must be grateful for small mercies—here, alas, I put the emphasis on the “small”.

I am grateful to the Minister for doing what he could for us, and, so far as it goes, I welcome the small change brought about by the amendment. But, in my respectful view, it does not go remotely far enough. It is difficult to overemphasise how small a concession this is in relation to the overall problem of the remaining IPP prisoners. Even in respect of the recall prisoners, we had hoped that the maximum term for which a licence should remain in force would be reduced from 10 years to five.

Beyond that, I fervently hoped to do something for the 1,700-odd cohort of IPP prisoners who have never been released and who remain incarcerated 10 years after this whole sentencing regime was abolished by LASPO in 2012. Many of the 1,700 are substantially more than 10 years beyond their tariff term—but there it is. We now have to—and we do—put our faith in the House of Commons Justice Committee, which has taken evidence and listened to many, including me, and is shortly to report on the whole question of this remaining regime. One hopes that it will do something to meet this grave, continuing and, indeed, growing injustice. In the meantime, I make it plain that I support this most modest of amendments.

--- Later in debate ---

[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.

Amendment 3 agreed.

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Moved by

[Lord Wolfson of Tredegar]

4: Clause 142, page 133, line 13, at end insert—
“(3A) Subsection (3) does not apply to a reference by the Secretary of State under section 31A(3).”Member’s explanatory statement
This amendment is consequential on the new Clause in the name of Lord Wolfson of Tredegar to be inserted after Clause 136. It disapplies section 33A(3) of the Crime (Sentences) Act 1997 (inserted by Clause 142) in relation to a reference by the Secretary of State under section 31A(3) of that Act.

--- Later in debate ---

Moved by

[Lord Wolfson of Tredegar]

6: Clause 209, page 233, line 33, at end insert—
“(ma) section (Imprisonment for public protection etc: duty to refer person released on licence to Parole Board);”Member’s explanatory statement
This amendment is consequential on the new Clause in the name of Lord Wolfson of Tredegar to be inserted after Clause 136. It provides for that Clause to come into force two months after Royal Assent.

Police, Crime, Sentencing and Courts Bill

Lord Wolfson of Tredegar Excerpts

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

Motion C

[Lord Wolfson of Tredegar]

Moved by

That this House do not insist on its Amendment 71, to which the Commons have disagreed for their Reason 71A.

71A: Because police officers are already subject to a duty to cooperate during investigations, inquiries and formal proceedings and it would be premature to add to such provision pending further consideration by the Government.

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

My Lords, I will also speak to Motionexpand-col4 K on secure schools, which is in this group.

The House will recall that Amendment 71 would introduce a duty of candour for the police workforce. The other place has now considered this amendment and rejected the proposed duty, without, I might add, putting the amendment to a vote.

The Government take police integrity and accountability extremely seriously. As has been outlined to the House previously, in February 2020 we introduced a statutory duty of co-operation for serving police officers as part of wider integrity reforms. This duty forms part of the standards of professional behaviour set out in Schedule 2 to the Police (Conduct) Regulations 2020, and therefore has the force of law.

For the benefit of the House, I will reiterate the extent and focus of this duty. It says:

“Police officers have a responsibility to give appropriate cooperation during investigations, inquiries and formal proceedings, participating openly and professionally in line with the expectations of a police officer when identified as a witness”.


A failure to co-operate is a breach of the statutory standards of professional behaviour by which all officers must abide, and could therefore result in disciplinary sanction. I therefore suggest again to the House that this duty to co-operate puts a greater onus on officers than the duty of candour provided for in Amendment 71, because a breach of this duty could ultimately lead to dismissal. We are reluctant to dilute the existing measures in place to compel individual officers to co-operate.

This duty to co-operate was introduced in 2020, after the issues highlighted in the Bishop James Jones report concerning the bereaved Hillsborough families’ experiences, and the issues relating to the work of the Daniel Morgan Independent Panel. We are keen that this duty becomes rooted within the police workforce before considering any further changes to legislation. The recently commenced inquiry, chaired by the right honourable Dame Elish Angiolini QC, will provide a proper test for this duty. Noble Lords will also be aware that a response to the Daniel Morgan Independent Panel and the Bishop James Jones report concerning the bereaved Hillsborough families’ experiences will provide a government view on a wider duty of candour for all public bodies. Before the Government respond to these reports, it is of course imperative that the Hillsborough families are given the opportunity to share their views.

We will continue to assess the impact of the existing duty on police co-operation with inquiries and investigations. As we consider the case for a broader duty of candour for public servants and bodies, we will determine whether the existing duty is sufficient to ensure public confidence. As for timing, I can assure the House that we will set out our conclusions later this year.

Given these considerations and the decision of the elected House, I respectfully ask the House not to insist on Amendment 71.

Turning to Amendment 107, the House will recall that the amendment sought to confirm that local authorities can establish and maintain secure 16 to 19 academies, either alone or in consortia. The elected House disagreed with this amendment by a substantial majority of 190. In inviting this House not to insist on the amendment, I remind noble Lords that there is no legal bar preventing a local authority setting up an entity capable of entering into academy arrangements directly with the Secretary of State, or indeed doing so itself. This is not prevented by the Academies Act. I therefore ask the House not to insist, on the grounds that this renders the amendment unnecessary and it could have disruptive consequences for the academies legal framework.

I appreciate that existing government policy is not completely aligned with the spirit of this amendment. But I want to be positive, and recognise the expertise of the local government sector and the critical role that it already plays. Local authorities have a long-established role in children’s social care and the provision of secure accommodation for children. I should therefore highlight that, in practice, there are already important ways in which local authorities can be—and already are—involved in academy trusts, which we would certainly be open to utilising also in secure schools. Trusts can, and do, procure services from local authorities; some local authorities have established spin-out companies specifically to provide services to trusts and maintained schools alike. In principle, there would be nothing to prevent a spin-off company entering into an agreement with the Secretary of State for Education to establish an academy trust.

Our vision for secure schools is to take a new and innovative approach to the delivery of youth custody and to engage visionary, child-focused providers—many of which are charities—in the running of establishments. It would therefore certainly be possible, for example, for a charity and a local authority to come together to put forward a bid to establish a trust in which both parties could have some involvement across both the governance structure and the delivery of services.

--- Later in debate ---

[Lord Rosser (Lab)]

There are, as has been said, two issues here, the duty of candour and secure academies. I note what the Minister said on the duty of candour and must say that our views are rather more in line with those just expressed by the noble Lord, Lord Paddick. One might think it rather odd, particularly at the present time when trust in the police appears to be at such a low level, that the Government and the Commons decided to disagree with such an amendment, but it is their prerogative to do so.

As the Minister said, this issue is not going to be dropped. There are people within Parliament, including ourselves, and people outside Parliament, to whom reference has been made, who intend to pursue the issue of a duty of candour. I think I am right in saying that the Minister referred to the fact that the Government would further consider the position—indeed, that is given as a reason for disagreeing—and that they would come up with conclusions later this year. While indicating that we intend to pursue the issue, we will, with some reluctance, leave this in that context. It is certainly not going to be pushed to one side now. It will be pursued and we will wait to see what conclusions the Government come up with later this year. The issue of trust in the police is a serious matter and I know the Government agree. We need to make sure that the mechanism is in place to improve the levels of trust that currently seem to exist.

On secure academies, the Government and the Commons have disagreed the amendment from the noble Lord, Lord German, which would put explicitly in the Bill that local authorities can establish and maintain secure academies. The aim of the amendment was to put beyond doubt that applications from local authorities to run secure academies would be welcomed and would be considered on their merit, on a level playing field with other providers.

The Government’s response has been that there is no legal barrier to local authorities setting up an entity that could enter into an academy arrangement with the Secretary of State, so there is not a legal barrier to them establishing a secure academy. The Government said that the Ministry of Justice

“will assess in detail the potential role of local authorities in running this new form of provision, before we invite applications to run any future secure schools.”—[Official Report, Commons, 28/2/22; col. 803.]

The Minister also made that point.

Our response in the Commons was that this does not go far enough. We argued that local authorities have the expertise needed to run services and provide care for vulnerable children with a high level of need in a secure environment and that the Government should widen the pool of expertise that providers bring and ensure that local authorities are explicitly brought into the fold when planning for secure academies.

We recognise that the Government have committed to look at the involvement of local authorities in providing secure academies before any new applications are invited, so we will now deal with and pursue this issue outside of the Bill. However, we strongly support the noble Lord, Lord German, in saying that what is needed, and what we will keep calling on Ministers to deliver, is, frankly, not vague statements that a local authority could provide a secure academy but a proactive change to bring the expertise that local authorities have into that pool of providers.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful to the noble Lords who took part in this debate. I will take matters fairly briefly, given the amount of other business before the House.

On the duty of candour, I emphasise the essential point that the disciplinary system provides clear sanctions that can lead to dismissal. We should not introduce criminal sanctions for the police alone. Ultimately, the inspectorate can determine whether forces are following the guidance. We will monitor that extremely carefully.

I do not want to take up the House’s time too much on the report, which has been published in the last half an hour. My right honourable friend the Home Secretary has already issued a statement, which noble Lords will be able to find online, but my understanding is that the Metropolitan Police has 56 days to respond formally to the report. The Home Secretary will of course return to Parliament to provide a full government response once the final report and responses have been received.

I am grateful to all noble Lords for their engagement on the issue of secure schools. I have tried to set out the legal position clearly. I hope that the undertaking that I have set out will be sufficient. Again, with apologies to the House for not dealing in too much detail with the new report, because I am sure there will be other opportunities to debate it, I beg to move.

Motion C agreed.

Police, Crime, Sentencing and Courts Bill

Lord Wolfson of Tredegar Excerpts

Consideration of Commons amendments & Lords Hansard - Part 2
Tuesday 22nd March 2022 Lords Chamber

Moved by

[Baroness Williams of Trafford]

That this House do not insist on its Amendment 107, to which the Commons have disagreed for their Reason 107A.

107A: Because the amendment is unnecessary as there is no legal barrier to local authorities setting up and running academies.

Motion K agreed.