Criminal Justice Bill

Robert Neill Excerpts

Report stage
Wednesday 15th May 2024 Commons Chamber

[Laura Farris]

I thank my hon. Friend for her comments. They were truly appalling crimes, and I had the constituents of both my hon. Friends in mind when I thought about how to develop the law. We cannot change what happened in the past, but I hope we can send the clearest possible message in future.

I want to come to a couple of other matters, though I will not pre-empt what hon. Members might be inclined to say. First, I want to talk about new clause 9, on one-punch manslaughter. I pay special tribute to my hon. Friend, and my friend, the Member for Bishop Auckland (Dehenna Davison). This was not an ordinary campaign for her, but one born out of the deep tragedy of her childhood. I know that she will speak to the new clause, and I will respond in detail, but I hope she will not mind my saying that I think her dad would feel very proud of how she has conducted herself on this issue, and would be pleased with the changes that we are making.

I come to the amendments tabled by the hon. Member for Stockton North (Alex Cunningham) on prisoner transfer to overseas prisons. I want to set out the Government’s position in general, and in particular in relation to the transfer criteria. The Government agree that not all prisoners will be appropriate for transfer to rented prisons overseas—indeed, the hon. Member has set out some very sensible principles in his own amendment. I would like to give him three points of reassurance. The proposal for foreign prisoner transfer will extend to approximately 600 prisoners—equivalent to just under half of 1% of the entire prison estate. I can confirm that we will not negotiate a prison transfer agreement with a women’s prison.

We will conclude a deal only with a country that can demonstrate that its prison conditions and capabilities meet the applicable human rights standards. The Secretary of State retains responsibility for each prisoner, which ensures that any transferred prisoner retains all their rights under the European convention on human rights, irrespective of where they may be transferred. However, we believe that legislation is the best place for negotiating further terms, with the appropriate involvement of experts. The Lord Chancellor has already confirmed that the use of these powers requires a valid international agreement, and any such agreement would be put before Parliament as a treaty, subject to ratification procedures contained in the Constitutional Reform and Governance Act 2010.

[Sir Robert Neill (Bromley and Chislehurst) (Con)]

I am grateful to the Minister for those reassurances, but some of us have marked misgivings about the whole concept, which speaks a little more of gimmickry than anything likely to ease the real pressures on our prisons. That said, I can see that it might be a tool in the box. Could she help me on two matters that the Law Society has raised? If the agreements are used, what arrangements will ensure that prisoners are able to access legal advice in a proper way, perhaps in relation to appeal or other proceedings? That is essential to ensure a fair approach. How will they be able to participate remotely if necessary in any ongoing legal proceedings? Secondly, what is to be done about family visits? As the Minister will know, the retention of family ties is particularly important, and recognised universally as a key factor in rehabilitation and preventing reoffending. We would not want to disrupt those opportunities for anyone being transferred.

[Laura Farris]

I thank my hon. and learned Friend for his sensible intervention, which engaged two issues: article 6 considerations on the right to a fair trial, and article 8 considerations on the right to respect for private and family life. We are keenly aware of those obligations. I am sorry that I cannot give more detail on that, only the extra reassurance that the Lord Chancellor has insisted that prisoners will retain all their rights under the convention. These will be principal considerations. I will ask the Lord Chancellor to write to my hon. and learned Friend to flesh out some of those responses.

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[Alex Cunningham]

The right hon. Member makes a strong point, and it is up to the Government to respond to it. We believe that we should extend all protections to women in all circumstances.

We welcome amendment 160 in the name of the Chair of the Women and Equalities Committee, the right hon. Member for Romsey and Southampton North (Caroline Nokes). The Online Safety Act made significant progress on intimate image abuse, or revenge porn, which is an abhorrent crime, and it is right that, through this Bill, we continue the good work done through that Act. We therefore support amendment 160, which would make offence relating to non-consensual intimate photographs or films priority offences under the Online Safety Act. That will ensure that this heinous practice is treated seriously and dealt with proactively, so that the harm it causes is reduced.

New clause 87 makes it an aggravating factor if an offence of manslaughter involves sexual conduct, and does the same for the corresponding service offence. The Government had support from across the House when they restated in statute, in the Domestic Abuse Act 2021, that

“a person is unable to consent to the infliction of harm that results in actual bodily harm or…their own death, for the purposes of obtaining sexual gratification”.

It will therefore not surprise the Government to hear that the new clause has the support of Labour Members. We are all aware of the high-profile cases in which women have been killed as a result of allegedly consensual sado-masochistic acts of violence during sex. We share the Government’s ambition to do more on the issue, in recognition of the serious public concerns about these horrific cases.

Amendment 57, in my name, would ensure that when courts ordered a defendant to attend sentencing, they first satisfied themselves that that would not put their staff at risk. Government amendments 149 and 150 lower the threshold for the availability of the new power to order an offender to attend a sentencing hearing, so that it applies where an offence is punishable with imprisonment for 14 years or more.

Clause 28 comes in the wake of a dismaying trend of high-profile criminals opting not to attend their sentencing hearing. Former neonatal nurse Lucy Letby did that in August last year. She refused to attend her sentencing hearing for the murder of seven babies, and the attempted murder of another six entrusted to her care. Having also refused to attend via video link, she remained in the cells below Manchester Crown court as bereaved family members delivered victim personal statements, and the judge passed a whole life order in her absence. In April last year, Thomas Cashman exploited the same procedural rule by refusing to attend his sentencing hearing. He travelled to Manchester Crown court, but declined to leave his cell, claiming that he had been provoked by court officials. He received a sentence of life imprisonment, with a minimum term of 42 years, for the fatal shooting of nine-year-old Olivia Pratt-Korbel in her home. We share the view that, wherever possible, defendants ought to hear the victim impact statements setting out how victims and families have been affected by the crime.

In Committee, the Under-Secretary of State for the Home Department, the hon. Member for Newbury (Laura Farris), accepted that

“the judge now has discretion to make such an order, but we have found that it is not evenly or always applied”––[Official Report, Criminal Justice Public Bill Committee, 16 January 2024; c. 244.]

as in the case of Lucy Letby, where the judge did not compel her attendance. The Minister said that putting the measure in the Bill would ensure a power in statute for a judge to compel a person to attend their sentencing for any serious offence for which the maximum sentence is a life sentence. The Government’s pages of amendments include those to clause 28, and we are supportive of all efforts to improve the Bill’s workability. I said in Committee that there is nothing in the Government’s explanatory notes about the resources needed to deliver the policy. Likewise, there was little if anything about how the staff who would be at the sharp end of delivering a defendant to court will be protected. The charity Justice raised the concern with me that the policy puts staff at risk; it is questionable whether the discretion to use force in proposed new section 41B(4) of the Sentencing Code is real, or merely apparent, in view of proposed new section 41B(6).

[Sir Robert Neill]

I have a lot of sympathy with the points the shadow Minister is making. It is right that there should be a power—I think we all agree—to prevent vile offenders from showing the cowardly behaviour of not facing the relatives and hearing their sentence in person. However, the Professional Trades Union for Prison, Correctional and Secure Psychiatric Workers has a concern, which he rightly raises. Prison officers already put their life on the line every day—they can be subject to violence when going about their work in prisons—but there is a particular concern. We are extending the measure to a wider range of offences, and very often, those involved in bringing people to court are contractors—from, say, Serco—who may not have the experience or training to deal with these rather difficult situations. It is perhaps therefore all the more important that there be proper consultation with the workforce who will be at the sharp end, as he says.

[Alex Cunningham]

Indeed; that is very much the case. A few paragraphs further on in my speech, I will address that point specifically, as I did in Committee.

Proposed new section 41B(6) states:

“A person is to be treated as having complied with an order under subsection (2) if they have done all that they reasonably can to secure that the offender is produced before the court for the sentencing hearing.”

Given that subsection (4) provides the authority to use “reasonable force”, those responsible for producing the offender who fail to use such force are arguably at risk of being held in contempt for failing to comply with a court order. Prison governors and custody officers are accordingly placed in an invidious position. In her letter to me dated 1 March, the Minister said:

“Prison officers and Prison Escort and Custody Service staff are trained in control and restraint techniques, and we would expect them to use these skills to enforce a lawfully given order that an offender should attend court. Further guidance, training and, if required, personal protective equipment will be provided to ensure that prison and escort staff are fully supported to affect such court orders. The security and safety of prisoners, and well-being of prison officers will remain a priority.”

When I first considered clause 28, I made enquiries about how reasonable force is currently used by prison officers to deliver a defendant to court. It came as a surprise to me to learn that it involves three prison officers in full riot gear, including overalls, gloves, steel-toed boots, helmets and shields, approaching the prisoner, securing them and getting them into the transport vehicle. Their job is then complete, and responsibility passes to the private security firm staff to deliver the defendant to the court. Unlike the prison officers, neither private security staff nor receiving court staff are equipped with the personal protective equipment or the training to transfer the defendant first into the court cell and then to the dock. That was exactly the point raised by the Chair of the Justice Committee, the hon. and learned Member for Bromley and Chislehurst (Sir Robert Neill). I want to raise again with the Minister the question of whether the clause will ensure that all staff involved in producing a prisoner at their sentencing hearing are protected, all the way from the cells to the dock, and probably while the prisoner is in the dock as well. I have brought back amendment 57 in the absence of clarity from the Minister about how that would work in practice. I would welcome her further comments.

Amendment 58 would exclude some types of prisoner from being issued with a warrant to serve a sentence in a foreign country. It would exclude people with less than six months to serve, those serving indeterminate sentences for public protection, and those who need to be detained in the UK for education or training purposes, or for legal proceedings, such as parole. I accept what the Minister said about that in her speech.

In Committee, I raised the subject of the failure of the Bill and the accompanying notes to provide detail on exactly how the scheme to transfer prisoners abroad would work, who the partner countries would be, and where their responsibilities would lie. The Minister said that the amendment that I had tabled made “sensible” points, but that the Government

“believe that they are best addressed through policy, based on…expertise from within the prison system, not set out in primary legislation.”

She also told me that it was her “understanding” that no prisoners would be moved to countries not covered by the European convention on human rights, and I welcome what she has said about that today. Again referring to me, the Minister said:

“He…asked about the availability of legal advice…First of all, the whole landscape of court procedure has changed in the last few years. Receiving legal advice can be done remotely, and court proceedings often take place remotely via a live link.”––[Official Report, Criminal Justice Public Bill Committee, 18 January 2024; c. 280-281.]

That is supposed to mitigate the fact that someone is in a cell abroad.

The Minister was also at pains to point out that 10% of prisoners were foreign nationals, so

“family and primary care considerations are already rather different”.––[Official Report, Criminal Justice Public Bill Committee, 18 January 2024; c. 282.]

Perhaps there is a clue there, suggesting that it is foreign offenders and not British nationals whom the Government really want to send overseas. The Minister has talked of only 600 prisoners being affected by this policy, and I welcome her assurance that no women will be affected. I know that the Government are negotiating with some countries about where the prisoners will go, but we do not have the fine detail that we need in order to understand whether the policy will be effective. The Minister herself acknowledged that

“there is not much detail in the Bill”,

but said that the Government were developing

“primary legislation to create the framework for the agreements.”––[Official Report, Criminal Justice Public Bill Committee, 18 January 2024; c. 287.]

She was referring, of course, to agreements that had not yet been made. However, policy changes all the time, so we need to nail down the provisions in the Bill and who will be included and excluded.

Amendments 59 to 62 amend clause 35, which relates to transferring prisoners to foreign prisons. Amendment 59

“would require the Controller to make a report to the Secretary of State on any breaches of the arrangement between the foreign country and the UK.”

Clause 28 of the original Bill provides for the Secretary of State to appoint a controller to keep under review and report on the running of any rented prison spaces abroad. It also extends the power of His Majesty’s chief inspector of prisons to inspect and report on the conditions in such places. The Bill, however, places a great deal of unaccountable authority in the hands of the Executive, who can make provision for any arrangement by means of secondary legislation. It is silent on how those subject to this arrangement will be treated. Similarly, it provides no guarantee that the prison rules in secondary legislation, which govern crucial issues including segregation, complaints and the use of force, would apply. I hope the Government share my view that any agreement made between the UK and a foreign state should be subject to full parliamentary scrutiny and oversight. Amendment 59 would help to enable that to happen by requiring the controller to report any breaches of the arrangement to the Secretary of State.

Amendment 60 would ensure that the prisons inspectorate “must” conduct the duties specified in proposed new subsection 5D in section 5A of the Prisons Act 1952, and would ensure its consistency with the legislative basis for its role in England and Wales. We fear that the oversight of both the controller and His Majesty’s inspectorate of prisons will ultimately be subject to negotiation with a relevant partner country. The wording in the Bill relating to the powers of the inspectorate differs from the wording in the Prisons Act, in that it states that the chief inspector “may”, rather than “shall”, inspect. The implication is that inspections could take place only by invitation of the foreign state, rather than as a statutory requirement. That leaves open to future negotiation crucial aspects of HMIP’s role and methodology, such as its ability to conduct unannounced inspections, to speak to prisoners in private, and to access records such as those relating to the use of force, which would mean that a lower standard of independent scrutiny would be applied to the treatment and conditions of UK prisoners held under such arrangements. Amending the Bill to ensure that HMIP can perform its duties under the optional protocol to the convention against torture and other cruel, inhuman or degrading treatment or punishment is an important safeguard to ensure rigorous, independent scrutiny.

Amendment 61 would ensure that HMIP could inspect escort arrangements under which prisoners are transferred to foreign prisons. Clause 28 of the original Bill specifies that the chief inspector may inspect or arrange for the inspection of any prisons where prisoners are detained under an arrangement between the UK and a foreign state. The inspectorate’s powers to inspect escort arrangements were made by amendments to the Prisons Act in section 46 of the Immigration, Asylum and Nationality Act 2006. It is particularly important that the inspectorate should also be able to inspect the escort arrangements for the transfer of UK prisoners to foreign prisons. Our amendment would bring the legislation into line with the inspectorate’s powers in relation to prisons in England and Wales by also enabling it to inspect or arrange for the inspection of escort arrangements. A foreign state with which the UK makes an agreement could potentially be many thousands of miles from the UK. The transfer of prisoners could involve a lengthy journey including a variety of modes of transport such as, potentially, prison vans, planes, trains and ferries. The potential for trouble appears limitless.

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[Mr Deputy Speaker (Mr Nigel Evans)]

I call the Chair of the Justice Committee.

[Sir Robert Neill]

This has been a wide-ranging debate, because it is a wide-ranging Bill, and it has touched on a number of difficult, sometimes sensitive and complex topics. However, the tone of the debate does the House a great deal of credit. I appreciate the tone and approach taken by both Front-Bench teams; there is more common ground than not on a number of these areas. Let us see what we can do to improve things. I particularly appreciate the approach adopted by our Minister today, whose engagement has been exceptional on all these matters; I am grateful to her.

Let me deal with some of the amendments. I certainly congratulate my right hon. Friend the Member for Chingford and Woodford Green (Sir Iain Duncan Smith) on his work on cuckooing, which is a real issue; I have seen it in my constituency. We have a gap in the law that we need to plug. I also endorse what was said by my right hon. Friend the Member for Basingstoke (Dame Maria Miller) about new clause 86 and related matters. The concept of consent is perfectly well established in the law on sexual offences, and there would be nothing abnormal in making consent, rather than motive, the gravamen of the offences in question. In fact, that approach would bring them more into line with the rest of the canon of sexual offences. I really hope that the Government will think hard about that. Obviously, I take on board the points made about the amendments that my right hon. Friend the Member for Romsey and Southampton North (Caroline Nokes) spoke to, and the powerful speech made by my right hon. Friend the Member for Tunbridge Wells (Greg Clark) about the desecration of corpses. That is a vile concept, and clearly the law needs to be amended.

I will concentrate on two matters that the Justice Committee has examined over a period, the first being the provisions on the transfer of prisoners to serve sentences in prisons overseas. I made it clear that I am sceptical about the efficacy of that measure. I do not say it is unlawful, and I do not think the Opposition are saying that either. I accept that it has happened in limited circumstances elsewhere, including in states that are party to the European convention on human rights. The most obvious example is Belgium renting prison space in the Netherlands, but there has also been an example in Norway and Scandinavia. However, our situation is very different. Those two instances highlight the limited value of such arrangements. The prison space that Belgium rented in Holland was very close by—in some cases, it was literally up the road—and there was a similar situation in the Scandinavian countries. In addition, those countries are in the Schengen area. Those instances are not the same as transferring people overseas, some distance away. The practical implications, which the right hon. Member for Hayes and Harlington (John McDonnell) and others referred to, will get in the way of the proposal achieving anything.

I am grateful to the Minister for recognising some of the concerns raised by Opposition Front Benchers and the Law Society. It is imperative that proper legal advice be available. It is important that there be an inspection regime that ensures parity of standards with those in United Kingdom prisons. Again, I stress the importance of maintaining family ties. The Minister follows these things very closely, so she will know that the evidence overwhelmingly shows, time and again, that the three best things for getting people to turn their life around and not reoffend are a roof over their head, a home, and a family or relationship. If a family relationship or close family ties of any kind are undermined, it makes it more likely that people will reoffend.

Given the number of safeguards that will have to be put in place—to safeguard not just convention rights, to which the Minister rightly referred, but common law rights, which predate the convention and our incorporation of it into our domestic law through the Human Rights Act 1998—it is highly unlikely that anyone will ever end up going abroad. I would much rather we concentrated on more direct measures to deal with the crisis of overcrowding in our prisons. The overseas jail cells measures will not make any difference to the pressures on prison places, or any contribution to long-term demand. If we want to return foreign national prisoners abroad, it would be much better to speed up our prisoner return agreements and get those prisoners to serve their sentence in their home country. That would be constructive. We already have the measures and the legal framework to do that; we just need to be much more rigorous in our use of them.

If we really want to deal with overcrowding in our prisons, the Government and the business managers need to get a grip and bring the Sentencing Bill back to the Floor of the House. That Bill contains valuable, sensible and balanced measures that deal with public protection properly. It provides a far better suite of measures to reduce unproductive forms of imprisonment, and concentrate the very expensive resource of prison where it is most needed: on violent, dangerous and serious offenders. That would be a far greater contribution.

I pay massive tribute to my hon. Friend the Member for Bishop Auckland (Dehenna Davison) for her work in this area. As a lawyer, during my time at the criminal bar, I have both prosecuted and defended one-punch manslaughter cases. I fully understand the impact on families; I have sometimes had to talk to families who have had to accept manslaughter charges. With great respect to my hon. Friend, I do not think the wording of her new clause, as it stands, would meet what is required to deal with this. I am concerned that we are looking at the offence in a piecemeal fashion. Unlawful act manslaughter is a legally complex area. It is often not easy for juries to understand; it is not even easy for judges looking at the factual situation to direct on. That was highlighted recently in the Court of Appeal decision in the case of Auriol Grey, the severely autistic and disabled lady whose actions, tragically, caused an elderly cyclist to fall off her bicycle into the path of a car and be killed. She was originally convicted on the basis of unlawful act manslaughter. A very strong Court of Appeal quashed that conviction, which highlights some of difficulties in such cases.

[Mrs Lewell-Buck]

I am interested in the comments of the hon. and learned Member. As the Bill goes to the House of Lords, will he work with me and others who are concerned about one-punch attacks to draft something that he thinks would do what it is supposed to, and be more legally sound?

[Sir Robert Neill]

I am always happy to talk about it. It is my conviction that a single piece of legislation purely on one-punch manslaughter is not the answer. If there were to be legislation, it should be a wholesale reform of the law of homicide. The Law Commission recommended a reform of the law of homicide as long ago as 2006, but that was not acted on. That would deal with not just the issue of unlawful act manslaughter, but the other forms of manslaughter, including gross negligence manslaughter, reckless manslaughter and the interplay between murder and manslaughter; manslaughter is often an alternative verdict. Then of course we have the special defences in relation to diminished responsibility, which reduce, under certain circumstances, murder down to manslaughter. That is a slightly complicated field. The law is difficult for juries to follow, and we oftentimes use law that goes back to almost the 17th and 18th century. As for the right way forward, we should do two things. First, all the work being done around the information campaigns, including one-punch awareness and the “walk away” message, takes exactly the right approach. Secondly, we should look again, cross party, at a wholesale reform of the law of homicide, which could pick up those issues.

Joint enterprise remains a problem. I pay tribute to the hon. Member for Liverpool, Riverside (Kim Johnson) for the work that she has done, and for her amendment. I am not convinced that its wording is right, but we have to return to this matter, for the very important reason that many families of those who have been convicted under joint enterprise had hoped that the Supreme Court decision in the case of Jogee, which reversed what it described as the wrong turn taken in the case of Chan Wing-Siu in 1985, would see a number of people’s convictions quashed. In reality, subsequent decisions of the Court of Appeal have tended to narrow the approach in Jogee, very often because of the factual situations, which vary greatly. We do therefore need to look at this issue. I am not sure that the wording in the amendment is the answer, but I hope that we can work constructively on that. There are certain circumstances in which there is a role for joint enterprise, but the expansion of it beyond what most people regard as reasonable is a matter of real concern. I hope we can continue to work cross party to find a better solution.

[Rob Butler]

A concern that the Government have raised previously when joint enterprise has been considered is the use of the word “significant”, and the term “significant contribution”. The Government have argued that that is too vague. Does my hon. and learned Friend agree that “significant” is commonly used in criminal justice, and that judges and magistrates are very experienced in advising juries or lawyers on deciding what “significant” means? The Government need to come up with something a little more compelling than the suggestion that “significant” is not a meaningful word.

[Sir Robert Neill]

I entirely agree with my hon. Friend. “Significant” is a good starting point for the work that we need to do. The intellectually rather convoluted approach that we have to joint enterprise at the moment is really not tenable. A jury will understand “significant”. If we are to have an indictable offence, we need a test that a jury will readily comprehend. “Significant” is comprehensible to jurors.

[Peter Dowd]

In light of today’s debate and the discussions that we had over several weeks in Committee, does the hon. and learned Gentleman agree that there is a lacuna in legislation in a whole range of areas? I think he is suggesting that we need a cross-party approach, but time is running out. Does he think that certain things could be pushed through, but not in a rushed fashion; they would be considered carefully in the Chamber?

[Sir Robert Neill]

I agree with the hon. Gentleman’s sentiments. Many of these matters will require consideration —and, on the homicide angle, the involvement, I hope, of the Law Commission. It could be asked to revisit its report of 2006. In fact, I hope that will be done, whatever the party in government. The same is true in relation to sentencing for one-punch manslaughter. I am cautious about minimum sentences generally. I understand the feeling that sentencing is sometimes too low, but at the moment manslaughter can encompass a huge range of facts and degrees of culpability. Any sentencer has to balance the consequence of the act against the level of culpability of the offender. The huge range in culpability creates a difficulty with minimum sentences. It would be better to ask the Sentencing Council to review the matter. If that is done in the knowledge that there will be a cross-party approach, it will carry more weight and give us better outcomes.