Police, Crime, Sentencing and Courts Bill (Second sitting)

Robert Goodwill Excerpts

Committee stage
Tuesday 18th May 2021 Public Bill Committees

[Bambos Charalambous]

Q A final question about limiting the use of child remand: do you think the provisions in the Bill go far enough?

Adrian Crossley: We welcome the addition of the new statutory duty clause for courts that requires them to consider the welfare and best interests of the child. We think that is a positive part of the Bill. It would be nice if it could go further. Seeing custody as something to keep people safe is not correct, but there is broad support, as far as I can tell, from people with an interest in youth justice for this change. I know some of my colleagues would like it to go further.

Adrian Crossley: I can only add that we have seen a substantial reduction in custodial sentences for youths over the last 10 years or so. We welcome efforts to encourage rehabilitation and use it absolutely as a last resort. I think it goes far enough.

[Mr Robert Goodwill (Scarborough and Whitby) (Con)]

Q I would like to ask about the extension of categories of positions of trust. We have all been appalled by the way that some individuals have abused those positions, as football coaches, in gymnastics, in children’s homes or in the Catholic Church and other religious settings.

Currently, as I understand, clause 45 would extend those definitions and include anyone aged over 18 who supervises or works with 16 and 17-year-olds. I know from personal experience with my own family that, often, older children at a dance school, perhaps over 18, often chip in to help with tuition and coaching. In some cases, they may even be in the same class at school as a 17-year-old who is part of that dance academy. I wonder whether there could be difficulties in situations such as that. Indeed, we also remove the right to give consent from 16 and 17-year-olds who may find that infringes on their ability to choose who to have a relationship with. Perhaps Mr Crossly might be most appropriate to respond first.

Adrian Crossley: The first point to know is that affording some protection in this area is absolutely imperative. We have seen abuse of trust that has led to not just inappropriate relationships—that is not what we are dealing with. We are dealing with sometimes highly vulnerable children who are sexually abused. In order to make an inroad into dealing with that sort of offending, we need to get to the crux of how it comes about. All too often, positions of trust can allow a perpetrator to hide in plain sight—not only that, they make the person who is abused feel partially responsible and incapable of speaking out. The perpetrator recruits the trust of the people nearest and dearest, including their parents.

While I appreciate that there may be some difficulties in the administration of this issue, that will not unnecessarily impinge upon the movement of people and their enjoyment of their leisure, I do not put that value at naught—absolutely not. I do see, at the other end of this, we have a very real risk, which has existed pervasively throughout our society for a long time. I think the extension into the position-of-trust model starts to move away from identifying it as in small pockets of society and to see it as the modus operandi of some perpetrators of crime. I think its broadness is important and the clause as it stands is sufficient.

[Mr Goodwill]

Q So you would not agree with those who might argue that a small number of perfectly proper relationships might be caught up in this and that we could end up with people being unnecessarily criminalised. That is not to undermine the points that we all agree with about people in positions of trust who exploit that. The question is whether a person’s right to give consent could be undermined by these changes in specific situations, particularly where an 18-year-old is at the same school or in the same class as a 17-year-old.

Adrian Crossley: So much of this, as with any law, is about how it is actually executed on the ground and how the decision-making processes operate. At this stage, when you are looking at the written form of the clause, I can see that there is potential there for consent. The administration of a clause like this relies on good practice, and I would say that these things can be circumvented. You have the same sort of problem with something as controversial as stop and search, where you can see that there may be a very good reason for it but, done badly, it can be incredibly corrosive to society; it can stop people moving around freely. But that does not mean that the legislation itself is wrong. It will come down to how we administer this, and a continual review of that is necessary. But I do accept this: it is not possible for me to say that there will not be friction and difficulty as this clause is administered.

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[The Chair]

Mr Goodwill, have you got a short one you want to squeeze in?

[Mr Goodwill]

Q It is a quick follow-up to the points on illegal occupation of land. We see a situation where Travellers purchase land and then occupy it—they obviously do not plan to travel a great deal more—and it becomes a planning issue rather than one of trespass and occupation. I cannot see anything in the Bill that would address that. I know that the planning process can be protracted. Could more be done in that area? Perhaps Mr Lloyd might comment.

David Lloyd: I feared that you were going to say that. I am not convinced that anything can easily be done. Clearly, on private land, there is a planning process, but it is private land, and that is difficult. I think you are talking specifically about where someone has purchased land and invited people in, and they may well have inappropriately developed that land so that there is a site built there. It is very difficult to know how to deal with that. I certainly have not got the answer. You may well have an answer among you, but how you get the planning process to discriminate, if you like, in a positive way against that which is clearly not right and for that which is right will be difficult.

[Mr Goodwill]

Thank you.

[The Chair]

I think we can allow each side of the Committee seven or eight minutes.

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[The Chair]

Thank you. Robert Goodwill.

[Mr Goodwill]

Q Thank you, Chair. As a layman, I was not aware that terms that are understood more widely in the community have specific legal meanings and definitions. What benefit is there in codifying the common-law offence of public nuisance into statute? Does it clarify the situation or help? Or would you be critical of that suggestion? Perhaps Mr Willers could answer.

Marc Willers QC: It might be better for Mr Wagner to deal with that issue, given that I am dealing with part 4.

Adam Wagner: This is a recommendation by the Law Commission, as I am sure you are aware. My concern about codification is that it becomes a statutory tool in the armoury that might not previously have been used. I appreciate that the Law Commission recommended it. It does have benefits in terms of clarity and making the definition of public nuisance a statutory one, rather than coming out of common law and arguably being subject to not being clear.

I do worry that once it becomes a potential tool in the box, it will be used more. From the perspective of protest, and protecting the right to protest and freedom of assembly, it is just another tool in the armoury of public authorities to limit protest. Both Mr Willers and I deal with cases involving private injunctions against protesters and, in Mr Willers’ case, Gypsy and Traveller communities. You can see this proliferation in the courts of the use of any kind of method that will allow private companies and public authorities to restrict what is generally non-violent activity that does not cause much, if any, public order issue. You can see that being used. My concern is that it adds another potential bar to an already quite extensive collection of bars to public protest.

Marc Willers QC: I echo what Mr Wagner had to say. In the context of unauthorised encampments, there has been what has been described by the Court of Appeal—Lord Justice Coulson—as a feeding frenzy, in a case involving Bromley’s application for a wide injunction, effectively creating a no-go zone in Bromley, where Gypsies and Travellers would not be able to camp. That has been replicated up and down the country, in what has been described, as I said, as a feeding frenzy of litigation.

The Court of Appeal, in that context, concluded that the creation of such no-go zones offended the Equality Act 2010, the European convention on human rights and the protection of the right to respect for the traditional way of life of Gypsies and Travellers, and the enshrined right to roam. To bring it back to unauthorised encampments, in part 4 of the Bill the Government appear to be creating the no-go zones that the Court of Appeal has said in another context would fundamentally breach the rights that I have identified.

[Mr Goodwill]

Q Mr Willers, I was going to ask whether you thought that as cases come to court and we get more case law, some of these definitions might become more clearly defined and could be referred to if they go to appeal or even to higher courts, so we might see clearer definitions as we use this law in practice.

Marc Willers QC: The problem with part 4—it is speculation as to whether or not definitions will become crystallised in litigation—is that most Gypsies and Travellers will have left the site and be unable to challenge the decision by a police officer to arrest them, given the scenario that would play out under, for example, proposed new section 60C of the 1994 Act. A Gypsy or Traveller parking on a piece of land with their family, perhaps on the way down to Kent from somewhere up north, is not going to hang around when threatened with the seizure of their vehicle to argue that they should be entitled to remain on the land. Even if they did, they would probably not get legal aid with which to challenge the application of the section and their prosecution. In those circumstances, we are probably unlikely to see much, if any, judicial consideration of the vague terms in part 4.

Adam Wagner: If I may, I will add that

“serious unease, alarm or distress”

is not new to the law. You see that wording in the definition of criminal harassment and in other places. My concern is more about width than about clarity. I have dealt with numerous cases involving over-wide injunctions. There is quite a lot of case law about clarity versus width, and the point is that once this language is in the law relating to noise, it will be obvious to the courts that it is a very wide provision indeed and will rely to quite a large extent on the decision making of the police officers.

For example, if a protest decided to be completely silent, it would be difficult for the police to say that that protest was going to cause enough noise to cause serious unease. I imagine that the next Extinction Rebellion protest we see will be completely silent after this. But in seriousness, I think the court will just see that as very wide. What you have really got here is nothing to do with public order; it is about nuisance. It is about criminalising a certain kind of nuisance arising from what should be a protected activity—exercising political speech rights, under articles 10 and 11 of the European convention.

[Mr Goodwill]

I think—

[The Chair]

We will move on. I call Sarah Jones. You have about six minutes.

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[The Chair]

Thank you. We have until 5.45 pm for this session.

[Mr Goodwill]

Q Could I ask a question about open justice? We will all have seen American courthouses where some of the barristers seem to be playing to the gallery rather than necessarily to the jury. Do you think that the proposals to make justice more open to the public and to observation will work? Do you support them?

Derek Sweeting QC: Two questions there. Would we support them? Yes, because open justice is a really important objective within the justice system. Will they work? There are obvious problems with managing hearings that are accessible over the internet, particularly in an age of social media when people know how to record things and take photographs and video online—that sort of thing. I think there are issues with how you police open justice and ensure that proceedings have the seriousness and gravity that they should have and that you do not get an abuse, particularly on social media, of the facility to be able to see things from afar. But generally I think it is a move in the right direction.

[Mr Goodwill]

Q We have seen situations where jurors have been engaged in social media conversations about a case, and I think in some cases they have been found guilty of contempt of court. If, particularly in high profile cases, there was a lot of social media debate, could that increase the number of situations in which jurors are compromised or undermined by being tempted to engage in that? As it is sometimes difficult to see what jurors are doing, could we police that in any way? If that subsequently came out, could it result in miscarriages of justice?

Derek Sweeting QC: Yes. I think at the moment there are already dangers around jurors doing things that they should not through the internet and social media. They are given a very specific warning and written information about what they can and cannot do while they are serving on a jury. I think all of this must be considered with a lot of care. There are bits of court proceedings that I think should not be directly under the gaze of the camera and so on. So there is a lot of room for working out what the protocols are and how things work best.

On the general point, there is plainly a risk that we will have more occasions on which there could be potential contempts of court, but I do not think we can go backwards; we just have to manage these things as we have done with every technological step forward that impacts on the justice system.

[Mr Goodwill]

Q And there is no danger whatsoever that barristers might play to the gallery to try to raise their own personal profiles and popularity.

Derek Sweeting QC: Well, barristers never do that, of course. I think we are a long way off the American sort of proceedings that we sometimes see. That is perhaps slightly unfair to many American attorneys, who conduct their business with a lot of decorum, even under the gaze of the camera.

[Mr Goodwill]

Thank you. That was slightly tongue in cheek, although we do occasionally have barristers appearing at the Dispatch Box and I would not comment on their performance.