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

Robert Goodwill Excerpts

Committee stage
Thursday 20th May 2021 Public Bill Committees

[The Chair]

Sorry, Mr Robb, we did not hear that because we have a bell going off in our ears. Could you repeat that?

Campbell Robb: I hear the bell ringing. I was just agreeing with both of them; I have nothing to add.

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

Q As always, it is a great pleasure to serve under your chairmanship, Sir Charles. What we have just touched on is central to the way that we can try to rehabilitate some offenders. There is a vicious circle, which I am sure most Members of Parliament will have come across, where we are trying to rehabilitate a young offender and get them into work, but the cost of the disclosure rules often put the employers off or make the person have to return to crime—that is probably not a good way of putting it, but they are forced into criminal activity because they cannot get gainful employment.

Have we got the balance right? To what extent is an employer entitled to know somebody’s criminal history? Can we do more to work with employers to get them to understand? Companies such as Timpson, for example, have been very good at taking on people who have criminal pasts, and rehabilitating them. Does the Bill move in the right direction on this? Does it protect employers from potential criminal activity from employees and does it make it easier for people to get into work?

Sam Doohan: The direction of travel is certainly positive. At the same time, we do not think the balance is right yet in the overall rationale for employers at the basic level, who are not obliged to ask for a criminal history and have a free choice whether they do or not. The fact that employers can ask because they are nosy is not fair to applicants at any level.

A 2001 study commissioned by the Department for Work and Pensions said that a lot of the problems around employers asking come from the recruiter and the person who chooses to ask. The study broke that down across several categories, including age and position within a company. There are various factors that make people more willing to ask and more willing to discriminate if people disclose a criminal past.

Another factor that came out from that was that employers would, if given scope to do so, claim that just about any job you can imagine had some tangential relationship to someone’s previous criminal history. Perhaps in a very loose sense, that could be argued to be true, but we see driving convictions being held against people in jobs that do not involve driving, or people with a driving ban, who cannot legally drive, having that conviction held against them for pushing trolleys in the car park in Asda. There is some rationale in allowing employers to ask, but we do not think the balance is there yet. It is being used just to discriminate.

Helen Berresford: The balance point is a really important one. We work with employers as well, and understanding their needs is a really important part of that. For a lot of the employers we have supported, it is about transparency and knowing what they can ask and understanding that point. The system is so complex and arbitrary at the minute, and the transparency is not there, so the faith and trust in the system are not automatically there. We have to get to a point where it is transparent, easy to navigate and much simpler.

Sam’s point about motoring convictions is absolutely right. We have supported people who have had job offers withdrawn because an employer has come across their motoring conviction, which has absolutely nothing to do with the job that they would be doing. It is about relevance for the job. That is a really important factor.

Campbell Robb: As both my colleagues have said, this is a step in the right direction. There is more we would like to see in the Bill. The other point is that, when we get through this, whatever the new regulations are, the Government, working with ourselves and employers, need to really think through how we talk about this. We need to run campaigns and explain to employers and work with businesses and business organisations, so that we do not just all talk about Timpson—which is brilliant at this and does a very good job, but we want to have dozens of organisations. We know they want to do more in this space, but feel put off and worried by the complexity that comes with it. We would like to see a bit more in the Bill, but we also want to work afterwards with the Government and employers to make the measures work better.

[Mr Goodwill]

Q In our farming business, we once hired a young man and we did not know until he started work that he had just come out of a young offenders institution. He was a lodger in my mother’s house. He was absolutely fantastic, but if we had known, we may not have hired him. I genuinely do not know the answer to this question, but to what extent are probation service staff, who probably know more about these offenders than anyone else outside their own family, able to engage with employers to help them make that decision, or is that not in the probation service’s remit?

Campbell Robb: We work every day with thousands of people who are coming out of prison, trying to settle them. We work with employers across the country to find either permanent or short-term opportunities. Criminal records are just one barrier to many people who are trying to get work when they come out of prison. It is about training and education, rehabilitation in prison and what is available then, and suitable accommodation. There is whole range of factors.

The new changes to the probation system, which I know the Justice Committee has looked at recently, are hopefully opening up some opportunities for all of us who work in this space, to provide a more rounded service. These changes to criminal records will help a bit, but they will make a big difference if we can go just that bit further.

[Maria Eagle (Garston and Halewood) (Lab)]

Q Can I ask our witnesses about problem-solving courts? We have had them before. In fact, when I was the Minister of State for Justice and Equalities before the 2010 election, we had a number of different problem-solving courts, such as mental health and drugs courts. My recollection is that they worked very well, saved the system a lot of money in the long run and helped individuals, but they cost a bit more to operate. My experience of them was that they were a good thing, but they were all abolished during the austerity years by the coalition Government. So, we know they work. Do you agree with that assessment? Would you like to see problem-solving courts simply rolled out, so that we can make the savings that they make for individuals sooner rather than later?

Campbell Robb: It is simple: the answer is yes. The commitment in the Bill to community sentences, treatment requirements and problem-solving courts is a real step in the right direction for non-custodial, rounded approaches to sentencing and rehabilitation. When we work with problem-solving courts in the areas that have them, our experience is that they do work. We need to provide that rounded approach to non-custodial sentences, which is to do with treatment, problem solving, a good probation service, training and development. In short, the answer is yes. These are a good thing. We would like to see more of them. The evidence is generally positive, both for pathways out of addiction and into employment, and for reducing reoffending. We look forward to working with whoever is providing them to really get that.

The second thing to add is about better awareness among judges about the success of these courts and how to use them. When the Bill is passed, how do the Government intend to work with the judiciary and other providers to make sure problem-solving courts become more available and better used?

--- Later in debate ---

[The Chair]

Excellent. We are receiving you—brilliant. I am not sure if you can see us yet, but we can certainly see you. I call Mr Goodwill.

[Mr Goodwill]

Q Good morning, Dame Vera. I think the victims who feel most let down by the criminal justice system are the victims of rape. Very low numbers of those cases get to court and, similarly, low numbers achieve convictions. Over recent months and years, some electronic data from phones has been used to undermine some of those cases. Messages sent to placate—certainly not to antagonise—the abuser in an abusive relationship can be used to undermine the case, for example. Proposals on data analysis and consent for it are coming forward, but how can we improve victims’ confidence in the criminal justice system—particularly for crimes such as rape and other serious sexual offences—and reduce requests for information from those victims?

Dame Vera Baird: Thank you very much, Mr Goodwill. It is very good to see you again—we were next-door neighbours at one time, constituency-wise.

I will focus on the digital download point, because it is extremely key. Clause 36 in the Bill is very problematic. We have done some considerable work on it, which I would like to mention. First, let me compliment the Home Office team who drafted it and who approached us to ask what we thought of it. Let me explain that I fully understand, as I guess the Committee does, that the purpose of clause 36 is different from the area Mr Goodwill has just rehearsed.

I understand from Mr De Meyer, who is the NPCC police officer I have mostly been talking to about this, that people say to the police, “Someone is harassing me” or “Someone sent me this. Look at my phone—there is the evidence.” The police are worried that if they take the phone, they might be in breach of the investigatory powers legislation, so they are seeking a statutory power to take a phone off somebody who is voluntarily giving it up. That was good to understand—that is fine—but the power as set out at the moment does not contain any protections for the complainants who are in the position that Mr Goodwill has mentioned.

If I may, I will briefly rehearse the position as it is seen from the victim’s point of view. If you look at a Rape Crisis survey 18 months ago, or if you talk daily to ISVAs, you will find that the view is that on the ground it is practically routine for rape and sexual assault complainants to be asked to hand over digital devices, and for most of the material on it to be trawled, so far as they are aware. Apparently, according to my network of stakeholders, the CPS frequently seeks a level of material straight away, before it charges, and if a complainant refuses, the case just does not get considered for charge. That is very, very troubling, and it has a chilling effect not only on current victims, but on reporting, and it could impact victim attrition.

We did an analysis of a data set showing that one in five victims withdrew their complaint of rape at least in part due to disclosure concerns. Home Office data shows an increase of rape complainants withdrawing pre-charge, and it is right to say that many senior police officers, including Mr De Meyer, accept that there has been a big blow to the confidence of the public in the police because of the whole issue of digital data.

In my own former area—I was the PCC in Northumbria until not quite two years ago—the Home Office funded a pilot of independent legal advice for rape complainants dealing with digital download. That pilot disclosed that about 50% of the requests for digital download of rape complainants’ devices were not necessary or proportionate. Of course, we must take some comfort from the fact that that means the other 50% were, and my understanding is that this pilot worked well. It was praised by 23 of the 25 professionals involved in it because it also speeded matters up: where there was a legitimate request for a particular section of the contents of the device, the independent legal advisor was able to get to grips with its reasonableness and advise if it was reasonable, and it was then very quickly accepted. None the less, 50% of requests were not in that category, and we do know that it influences people about reporting rape when they fear that not only their own personal data, but the data of everybody else who is on their phone—their little brother, their sister, their mother, anyone they may confide in—will also have to be disclosed.

The last three points that I really want to emphasise to let you appreciate the seriousness of this problem are that in 2020, the Information Commissioner published a report about exactly this, and outlined a series of ways in which the police were not complying in a number of respects with data protection legislation. The gateway for consent was one of the concerns, and there was an internal report by the CPS two years ago, which found that 60% of its requests for digital download were over-intrusive and not necessary. A little bit later, HMCPSI found about 40% were in the same category. The police have now done a lot of work to try to shift policy backwards, and this new power—which has no obvious nod, even, in the direction of the protection of complainants—came out of the blue from a different Department of the Home Office, and has absolutely none of the protections that, in policy terms, the police have been looking towards for quite some time.

We have the ICO, the Home Office and the National Police Chiefs’ Council all meeting with us, and we are very pleased with that. We asked whether we can draft some amendments to this that will safeguard the protection the police need, but will also offer protections for complainants when the power is used for this—as it will be, of course. In a very lightning run through them, there is no definition of agreement. What it says is that an authorised person can take information from a device if it has been voluntarily provided and there is agreement to give the stuff, but there is no definition of agreement, and we know very well—as I have just recited—that often, there is a sort of implicit threat that if you do not, that is the end of the story. We defined agreement in a fairly obvious way—fully informed and freely given. There is no requirement at all for the police to specify the nature of the material, let alone the actual material, that they want to look for. It is just all or nothing: you agree or you do not agree. A big concern is that although it is described as information that needs to be relevant if it is being sought, it does not make reference to the very important turn of phrase in the legislation, which is a “reasonable line of inquiry”. It is much broader.

We therefore drafted some amendments that dealt with all of those points and a number more, and we offered them to the Home Office team. I am very pleased to say that the National Police Chiefs’ Council accepted them, and felt that they fulfilled all the requirements that it had and offered some excellent protections. I am very pleased to say that the Information Commissioner’s Office, although it is happy with the code of practice going way beyond this legislation, also accepted them. The Home Office did not. When we tried to probe why, the answer came:

“While the NPCC indicated they were content with your drafted provisions, they have also said they were similarly supportive of the draft we prepared. We incorporated their operational perspective…with the views of our technical and legal experts”.

[Mr Goodwill]

I think we probably need to move on, because other colleagues want to get in.

[The Chair]

I think we have to move on now. It is not that this is not important. It is hugely important, but you have asked one question and there was a 10-minute response. We have three colleagues. We cannot do that again. I call Mr Dorans.