Assaults on Emergency Workers (Offences) Bill

Nick Hurd Excerpts

Committee Debate: House of Commons
Wednesday 15th November 2017 Public Bill Committees

[Chris Bryant]

When I was re-reading the Second Reading debate last night and remembered that the hon. Gentleman had joined the Committee, I thought it was just as well that he joined very late. Otherwise, he would have tabled an amendment to that effect, we would be debating it this morning, and I would have had to prepare for it.

The exegesis is simply that I was initially hopeful of a two-year maximum sentence on indictment. Obviously, in nearly every—in fact, in all—other cases, the sentence in a magistrates court is six months on summary conviction. That is what I had assumed that we would be proceeding with, but the Government were keener to go to 12 and 12. I hope that the Minister will be able to answer on that point later. I am enormously grateful for the support that the Government have given in making sure that the legislation is in good shape. There have been some tussles along the way, and we may want to return to the issue of sentence length on Report. I think there is still an argument for a maximum of two years for an offence, but others argue that that would be disproportionate when there are other offences that one could be convicted of that would attract sentences of anything between two and five years. Some people are arguing that that might be a more sensible route to go down when seeking to prosecute.

The new offence in clause 1 also applies to those who are off duty when they are performing the functions that they would have been performing if they were on duty. That is an important provision. Legislation in Scotland is similar but is far more complicated and difficult to use in prosecutions, and there have been instances where that has been used effectively as a loophole. It is also important to say that, as with all such legislation, the offence is not retrospective.

The second provision in clause 2 is the new aggravated offence in relation to seven sections of the Offences Against the Person Act 1861 and manslaughter, kidnapping and ancillary offences. I am glad to say that those ancillary offences cover quite a broad range of those who might be caught. This particular provision has taken the model of the Criminal Justice Act 2003, which created an aggravated offence originally in relation to those perpetrating an offence in relation to somebody’s sexual orientation or their disability, and was subsequently amended to include whether the victim was or was presumed to be transgender. That is a good parallel because, although it does not necessarily increase the maximum sentence available, it means that the court has to state the fact that this is an aggravated offence in open court. That will be of some comfort to quite a lot of emergency workers who have gone to court and seen the person get a minimal sentence with no reference to the fact that this was an aggravated offence. Secondly, it means the court has to consider that as increasing the seriousness of the offence.

I have heard people say that the court already has lots of other means of assessing aggravated elements of the seriousness of an offence, but those vary enormously from things such as the time of day to the vulnerability of the person and the venue and so on. It is important that we put this at least on a par with the provisions of the 2003 Act. Again, it would not apply retrospectively.

I hope that all hon. Members will support the inclusion of the two offences.

[The Minister for Policing and the Fire Service (Mr Nick Hurd)]

I join the hon. Member for Rhondda in saying what a pleasure it is to serve under your chairmanship, Ms Ryan, I think for the first time in my case. If you will indulge me, may I also place on the record my admiration for the success that the hon. Gentleman has had so far with the Bill? Unfortunately, I could not attend Second Reading, so I could not place on the record my genuine admiration for his work. He is characteristically modest in describing himself as the midwife of the Bill, although I join him in congratulating the hon. Member for Halifax on her tireless work. Her speech on Second Reading was extremely powerful in helping to explain through human anecdote why such a Bill is necessary. I also join the hon. Member for Rhondda in congratulating the other sponsors of the Bill.

Having sat in the hon. Gentleman’s shoes and taken a private Member’s Bill through in my first Parliament, I also congratulate him on how he has managed the process and resisted many temptations and invitations to add baubles to the Christmas tree that is this Bill. The reality of these situations is that the more baubles you add to the tree, the more likely it is to fall over. This tree stands proud before us today because it has the right number of baubles on it, which is in large amount due to the discipline of the hon. Gentleman in seeking to pursue a Bill that is simple and coherent. He has done that and I congratulate him on it. That in large part explains why the Government are pleased to support the Bill, not least because it sends a clear message that assaults on emergency workers will not be tolerated.

As the hon. Gentleman made clear in his remarks, clause 1 creates a new form of common assault where the assault is on an emergency worker. An offence committed under those circumstances will be triable either way and will have on indictment a maximum penalty of 12 months in prison. That is double the current maximum penalty for the existing offence of assault. The new offence provides increased protection under the law for emergency workers who may be assaulted in the course of their day-to-day work.

Such increased protection will also extend to situations where an emergency worker is not at work, but acts as if he or she was—for example, when an off-duty firefighter rescues someone from a burning building. The offence will sit alongside the existing common law offences of assault and battery but will be targeted at assaults against emergency workers. In the case of a more serious assault against such a worker, the existing offences of actual bodily harm and grievous bodily harm are likely to apply.

It is worth reiterating why we are creating a new form of common assault when perpetrated against an emergency worker.

[Michael Tomlinson]

I am sure the Minister heard my intervention. Perhaps he is answering it in his own way by explaining about other offences that sit alongside this one, but I wonder if he would directly address my point. I believe it is unusual for there to be exactly the same length of sentence for an offence that is tried summarily as for one that is tried on indictment. It may be that he is already answering that point, but I would press him slightly further on whether there is a specific explanation why the six-month and two-year sentences initially proposed have not found favour with Her Majesty’s Government.

[Mr Hurd]

My hon. Friend is too generous; I was not actually answering his question, but I will attempt to do so now. His basic question is why does the maximum penalty seem to be 12 months in both the magistrates court and the Crown court? The maximum penalty is in fact six months in the magistrates court and 12 months if dealt with in the Crown court. The provisions of clause 1(4) make it clear that the provisions should be read as six months, to match the sentencing powers of magistrates. That is a drafting provision to take account of provisions in the Criminal Justice Act 2003 that have not been commenced. I hope that gives my hon. Friend some explanation. I am more than happy to tease that out in the Committee and during further proceedings.

I am keen to register the human dimension. The Second Reading debate was incredibly useful in drawing out, constituency by constituency, real human examples of the risks that our emergency workers take on our behalf and intolerable situations they find themselves in. We know those examples instinctively, but it is useful to bring the experiences together in such a debate. That is why the Bill is timely and right. I am sure every single member of the Committee would join me in expressing our gratitude and respect for our emergency workers. The statistics about the number of assaults across the range of emergency workers covered by the Bill are genuinely shocking, and the Second Reading debate brought that through very clearly. It is very clear to me and the Government that emergency workers deserve the full protection of the law. Tougher sentences for assaults on emergency workers send the clearest possible message that that such cowardly and despicable behaviour will not be tolerated.

On Second Reading, we listened to various suggestions for amendments. Concerns were expressed about whether the maximum sentence for the new form of common assault, where the assault is perpetrated against an emergency worker, is harsh enough. An increase for the maximum penalty from six months to 12 months is exclusively for the lowest level of assault, which may not involve any injury, and the act constituting the offence can be as little as a push. The offences of actual bodily harm or grievous bodily harm are more likely to be used if the assault is more severe. Both those offences already have a maximum penalty of five years.

Members also raised the issue of which emergency workers were covered by the Bill. The original definition of emergency worker proposed would mean that many people working in or for the NHS, who are at risk of being assaulted because they have face-to-face contact with patients or other members of the public as a regular part of their job, would not be covered by the extra protections provided by the Bill. We want to ensure that all those working in or for our NHS, providing services directly to the public, who suffer an assault either in the course of doing their job or using their skills to provide emergency care to members of the public while off duty, are given equivalent protections to those working on the frontline in our emergency services. That definition will be considered in greater detail, I am sure, during our discussions.

[Huw Merriman (Bexhill and Battle) (Con)]

Has the Minister assessed whether it makes sense for the Attorney General’s powers relating to reviewing unduly lenient sentences to have some regard to the new offence? I say that because the new offence runs alongside existing offences. I do not wish to change the drafting of the Bill, but I ask the Minister follow how the offence develops, and in the event that the courts are not sentencing as we would like, perhaps he can look at whether the Attorney General’s power should be enhanced to cover the new offence.

[Mr Hurd]

I thank my hon. Friend for that thoughtful intervention, which I recall he also made on Second Reading. I certainly undertake to discuss that point with colleagues at the Ministry of Justice and the Attorney General himself. My hon. Friend will recognise that what the hon. Member for Rhondda is doing through the Bill, which the Government support, is to put in place new measures that complement the existing legislation and send a strong signal to and through the system that we will not tolerate assaults on emergency workers. We are doing that both through the creation of the new offence and through the aggravating factor, which strengthens the hand of the system.

I was talking about how the scope of the Bill has shifted during the course of the debate. In addition to NHS workers, the original definition of emergency workers included prison officers and persons

“(other than a prison officer) employed or engaged to carry out functions in a custodial institution”,

but it did not cover those working in a situation in which a prisoner is being transported—for example, to court—by someone other than a prison officer. We believe it is important that those individuals are covered by the Bill. We will discuss that when we come to the relevant amendment.

Clause 2 creates an aggravating factor, as I signalled in response to my hon. Friend, which will apply to assaults that are not covered by the new offence of common assault against an emergency worker. The Bill places a duty on the court to consider assaults, which include actual bodily harm, grievous bodily harm and manslaughter, committed against an emergency worker as an aggravating factor in sentencing. The offence will therefore be considered more serious and may merit an increased sentence within the maximum allowed for the offence. The sentencing judge must state in open court that the offence is so aggravated. Clause 2 puts the sentencing guidelines on a statutory basis, but with reference to a specific group of people—emergency workers—and for a specific list of assault and assault-related offences.

[Chris Bryant]

I do not think there is a great need to add to that. One point referred to on Second Reading was whether the complexity of the Scottish Act, in which there is a loophole relating to whether somebody is exercising their functions, would be replicated in this Bill, which will apply to England and Wales. Because of the way the Bill is drafted, I think we can be pretty confident that such a loophole will not exist. I do not think that there are any further issues that need to be addressed.

Question put and agreed to.

Clause 1 accordingly ordered to stand part of the Bill.

Clause 2 ordered to stand part of the Bill.

Clause 3

Meaning of “emergency worker”

--- Later in debate ---

[Chris Bryant]

Amendment 2, which I am about to speak to, would help substantially. The truth is that we do not know the precise statistic the hon. Gentleman is seeking. We might stand a better chance if we kept the provision in the NHS that gathers such statistics, but unfortunately that is being abolished, so we will rely merely on staff surveys, which are a less reliable means of obtaining information.

The good news is that amendment 2 would extend the definition of emergency worker to include all those providing NHS health services. Incidentally, I understand that the phrase “national health service health services” is slightly clumsy, but it is the only way that we could make it work. Amendment 3 specifies the provision of NHS health services, so amendments 2 and 3 have to be read together. The National Health Service Act 2006 and the parallel National Health Service (Wales) Act 2006 have a different way of defining NHS services from the one I suggested we would proceed with on Second Reading. I will read the definition from the Welsh version, because it is exactly the same as the English one, apart from the word Wales is used rather than England, and I am Welsh. It states:

“The Welsh Ministers must continue the promotion in Wales of a comprehensive health service designed to secure improvement—

(a) in the physical and mental health of the people of Wales, and

(b) in the prevention, diagnosis and treatment of illness.”

Members will acknowledge that that is a broad definition of the provision of NHS services that brings a large number of people into the ambit of emergency workers. If a nurse is working on a hospital ward and someone has a cardiac arrest, it would be difficult to argue that they should not be covered by the Bill. It is the same for a hospital orderly working in the building, taking someone down to theatre or whatever. I am delighted with the way that the Government have helped redraft the Bill through amendment 2. I hope all Members will support amendments 1, 2 and 3 and ensure that clause 3 remains part of the Bill.

[Mr Hurd]

The Government not only accept, but welcome clause 3 and the amendments tabled by the hon. Member for Rhondda.

The clause, as the hon. Gentleman made clear, sets out the definition of emergency worker as it applies to the new offence of assault on an emergency worker and as it applies to the aggravating factor. The clause gives a list of occupations or groups of people, which broadly includes the police, prison officers, fire, rescue and search personnel and services, and those providing healthcare services. My hon. Friend the Member for Aldridge-Brownhills sought reassurance on police community support officers, and I confirm that the hon. Gentlemen was entirely correct in the reassurance that he gave.

The Bill focuses on people who have to deal with difficult people in difficult situations as part of their day-to-day job. That job exposes them to a degree of risk of assault and the Bill will give them increased protection in the event of such attacks. Although all the workers in clause 3 are defined as emergency workers, there is no requirement in the Bill that they must be responding to a specific emergency when an offence is committed against them.

We accept amendment 1, which brings those who provide prisoner escort services within the Bill’s definition of emergency worker. That will ensure that the people responsible for escorting prisoners between prisons and courts and for guarding prisoners while they are at court are brought within the Bill’s provisions. We believe it is right that they will be covered by the new offence of assault on an emergency worker and by the aggravating factor.

We accept amendment 2, which aims to widen the definition of emergency worker in the health sector for the purposes of the Bill and to ensure that we protect all those working on the NHS frontline. I thank my colleagues at the Department of Health for their co-operation with us. It is completely unacceptable for those providing healthcare in an emergency situation to be assaulted. However, many healthcare workers and those who support them, whose jobs involve regular face-to-face contact with patients, their relatives or other members of the public, are also vulnerable to assault while carrying out their duties. As has been pointed out, the statistics are genuinely shocking. It is only right that all those working on the NHS frontline are afforded the greater protections provided by the Bill.

I will briefly say something about those who work for first aid organisations, such as St John Ambulance, to which the hon. Gentleman referred. As we push the boundaries of the Bill, we get into difficult definitions and choices, which I am sure will be probed by Parliament as the Bill proceeds. Our view is that staff and volunteers who selflessly give up their time should be protected by the Bill if they are assaulted while providing a service under contract to the NHS. They may also fall within the scope of the Bill if the assault occurs while carrying out an activity that can be classed as a rescue. Those are the circumstances that currently we envisage as enabling those staff and volunteers to be protected by the Bill, but I am sure that there will be views expressed on that as it proceeds.

We consider that this new, expanded definition strikes the right balance—balance is inevitable in these situations—and includes those who fit the definition of emergency workers for the Bill’s purpose. However, we will consider any further proposals put forward by the hon. Member for Rhondda.

[Chris Bryant]

I am very grateful to the Minister for his words at the end. We will look at whether there are further means of tightening this up on Report, but there is not much else that needs to be said on this part of the Bill.

Amendment 1 agreed to.

Amendments made: 2, in clause 3, page 3, line 29, leave out paragraph (h) and insert—

“(h) a person employed for the purposes of providing, or engaged to provide—

(i) NHS health services, or

(ii) services in the support of the provision of NHS health services, and whose general activities in doing so involve face to face interaction with individuals receiving the services or with other members of the public.”

This amendment would broaden the range of health care workers included within the definition of “emergency worker” so as to include all clinical workers providing NHS services and support workers who have direct interaction with patients or the public more generally.

Amendment 3, in clause 3, page 3, line 34, leave out subsections (3) and (4) and insert—

‘(3) In this section—

“custodial institution” means any of the following—

(a) a prison;

(b) a young offender institution, secure training centre, secure college or remand centre;

(c) a removal centre, a short-term holding facility or pre-departure accommodation, as defined by section 147 of the Immigration and Asylum Act 1999;

(d) services custody premises, as defined by section 300(7) of the Armed Forces Act 2006;

“custody officer” has the meaning given by section 12(3) of the Criminal Justice and Public Order Act 1994;

“escort functions”—

(a) in the case of a prisoner custody officer, means the functions specified in section 80(1) of the Criminal Justice Act 1991;

(b) in the case of a custody officer, means the functions specified in paragraph 1 of Schedule 1 to the Criminal Justice and Public Order Act 1994;

“NHS health services” means any kind of health services provided as part of the health service continued under section 1(1) of the National Health Service Act 2006 and under section 1(1) of the National Health Service (Wales) Act 2006;

“prisoner custody officer” has the meaning given by section 89(1) of the Criminal Justice Act 1991.” —(Chris Bryant.)

This amendment is consequential on Amendments 1 and 2.

Clause 3, as amended, ordered to stand part of the Bill.

Clause 4

Taking of samples under the Police and Criminal Evidence Act 1984

Question proposed, That the clause stand part of the Bill.

--- Later in debate ---

I hope that the legislation will send out a strong message: spitting is not on, and if people spit at an emergency worker they could be subject to a fine if they unreasonably withhold an intimate sample and they would be required to provide a non-intimate sample. With those comments, I very much hope that hon. Members will support that clauses 4, 5 and 6 stand part of the Bill.

[Mr Hurd]

I wholly endorse what the hon. Gentleman was saying about the pragmatic approach of the clause. I also congratulate him on the way in which he spoke about the sensitive issue involved. I wholly endorse and associate myself with his comments about the progress we have made as a country in our approach to HIV.

We will proceed with sensitivity on the issue, but the fact remains—the evidence is there in all the testimony, case studies and examples given on Second Reading—that, as well as dealing with the physical and mental aspects of being assaulted, in certain circumstances emergency workers may be concerned that they have contracted a serious infectious disease as a result, especially when those attacking them threaten as much. If exposed to the risk of infection, emergency workers might have to wait for up to six months to find out whether they have been infected.

During such periods of uncertainty, the emergency workers may also be concerned that they are in turn infecting those around them, including their friends and family. One only has to read the speech of the hon. Member for Halifax or the examples given by the hon. Member for Rhondda—I am thinking in particular of PC Bruce and PC O’Shea and the story of what they had to go through—to realise that that is absolutely intolerable. That is why the clause is required.

Emergency workers may also have to take medication that ultimately is not required, some of which may have severe side effects. Such incidents can cause great distress and worry to the individuals and their families, so we are very keen to work with the hon. Member for Rhondda to find ways to protect emergency workers from the worries of unnecessary medication that may result from exposure to infectious disease. We therefore support his proposals in the Bill. However, we will want to work with organisations, including the National AIDS Trust and the Terrence Higgins Trust, further to consider their concerns. We will also continue to work closely with the police and other emergency services to ensure that the Bill’s proposals are practical and affordable. The hon. Gentleman has been extremely pragmatic throughout the course of the Bill. We want to put on the statute book legislation that will actually have some effect, and the Bill is genuinely practical in that respect.

I am reassured to hear the hon. Gentleman say he will continue to work with officials and stakeholders to ensure the Bill is the best it can be. I join him in making it absolutely clear that this Bill should not propagate stigma associated with HIV, which was a point raised by my hon. Friend the Member for Aldridge-Brownhills. It must be noted that there is a very low risk of contracting HIV through biting or spitting blood, and only in very particular circumstances. Alongside creating this power we want to work with the police and emergency workers to ensure there is a better understanding of the risks involved. It is ultimately about supporting our emergency workers and providing peace of mind.

For the sake of consistency we agree that the Bill should extend police powers in the Terrorism Act 2000 to marry up with the extension of powers in the Police and Criminal Evidence Act 1984. Clause 6 makes further consequential amendments to the Police and Criminal Evidence Act, on disclosure, and to the Human Tissue Act 2004. It exempts blood and non-intimate samples from the controls in that Act for health protection purposes following assaults on emergency workers. It also makes provision for a constable to require a person to attend a police station for the purposes of taking a sample.

[Chris Bryant]

I am grateful for the Minister’s comments. I should put on the record my gratitude to him for the way he has been willing to work with me and to meet and take phone calls at all sorts of strange hours. I should also say that my hon. Friend the Member for Sheffield, Heeley has been particularly helpful to me, not least because this is an area of the law that she knows well, in helping draft the legislation and in persuading colleagues that this is a good piece of legislation. She has not got quite as good a name as Hooley, a former MP several years ago, whose campaign slogan was “Hooley for Heeley”. I do not know what the name of the hon. Member for Hazel Grove would be in similar circumstances.

Without further ado, I hope the Committee will support these clauses and the Bill.

Question put and agreed to.

Clause 4 accordingly ordered to stand part of the Bill.

Clauses 5, 6 and 8 ordered to stand part of the Bill.

Bill, as amended, to be reported.