Criminal Justice and Courts Bill

Debate between Sarah Champion and Julian Huppert

Tuesday 17th June 2014 Commons Chamber

[Sarah Champion (Rotherham) (Lab)]

I appreciate the hon. Gentleman letting me make an intervention and therefore be an intervener. He says there may be rare cases of frivolous or exploitative interventions, yet none of the witnesses before the Committee could give examples of when they were aware of that.

[Dr Huppert]

The hon. Lady is right and I will not charge her for my costs in responding to her intervention—I am sure the Minister will not want to either. She is right, but my challenge was to the Minister to identify such cases. If there are any cases—I imagine that there are, because not being a lawyer I know that lawyers are creative at finding ways around the rules—we should try to fix that. However, I think such cases are the minority.

I withdrew my amendment in Committee because I wanted to see what the Minister could do, and he agreed to consider whether there was a way to improve the clause before Report. I had high hopes that the Minister—who comes from the wonderful county of Cambridgeshire—would have been able, with all the resources of the Ministry of Justice, to come up with something that would capture what we do. We should make it clear that we are clamping down on abusive cases, and say, “Whether or not they are happening, they can no longer happen”, and leave everything else alone. I hoped that in just under three months since the Committee proceedings the Minister might have achieved that, but it has not happened. I am disappointed, because it does not seem to be too hard.

I have done my best to provide suggestions, and I have met the Minister and sent in a number of possible ways forward. Today I wish to debate one of those possibilities, to see whether I can get a formal response from the Minister and whether he will look at it as a way forward and ensure we address the issue, even if that has to be in the other place. I turned to the Supreme Court rules as a possible approach. The Government seem happy with those rules on interveners and are not proposing to change them in any way. The rules would certainly be accepted by many legal professionals, given that they seem to work for the Supreme Court—I have heard no concerns. Article 46(3) of the Supreme Court rules state:

“Orders for costs will not normally be made either in favour of or against interveners but such orders may be made if the Court considers it just to do (in particular if an intervener has in substance acted as the sole or principal…appellant or respondent).”

That seems to capture what the Minister says he was trying to achieve, and I think we would all be relatively happy with that. There would not normally be such measures, but where somebody has acted as though they should be the person taking the case, it would be covered.

That led me to table amendment 51, which tries to capture that concept—it may not have caught it absolutely and I would be happy to hear the details, but it strikes me as a way forward. It provides a way to deal with the problems the Minister is concerned about, without stifling the interventions that I think all in this House—from the Joint Committee to many Members from all parties who I have spoken to—would want to protect.

The clause is not acceptable as it stands, and I do not think it will or could become law as currently drafted because of the problems it would cause. I hope the Minister will fix this issue promptly at an early stage in the other place, and that he will consider amendment 51 as a possible way forward.

[Sarah Champion]

I wish to speak broadly to amendments 23 to 32 to clause 55 in part 4 of the Bill, and to the “highly likely” test on judicial review. I also wish to share my thoughts on the specific proposals for judicial review, based on the recent experiences of the Liverpool City and South Yorkshire regions, which directly affects my constituents. As a precursor, I should say that I accept that the number of judicial review cases has risen in recent years, but I am not certain that the proposed revision of judicial review would give a fair outcome to those parties seeking review, or tackle the reasons why instances of judicial review have increased.

In particular, I wish to address the idea that the likely outcome would be assessed as part of the process leading to the granting of a judicial review, rather than the legality of the process leading to the said outcome. On 7 February the South Yorkshire and Liverpool regions won a joint High Court action that ruled that cuts in European funding were unlawful. Lawyers bringing that action argued that the significant reduction in funding of 65% was disproportionate compared with other areas.

Evidence presented to the Court at the time showed that Ministers allocated €150 million less to Liverpool City region, and almost €90 million less to South Yorkshire, than they had estimated their share to be. Obviously, that could not be fair. It meant that over the next seven years, funding to Liverpool City region worked out at €147 per head, compared with €380 in the previous funding round from 2007 to 2013. A judicial review case was filed in September 2013, and the process, rather than the outcome, was deemed out of order. The judge requested the High Court to order the Government to adjust their allocation of funding from Europe because of the flawed calculation method used to distribute €10 billion from the European regional development and European social funds. Had that decision not been challenged, the funding that would have been allocated to Liverpool City region and South Yorkshire would have been spread across other regions.

Under the judicial review process as it stands, South Yorkshire and Liverpool were right to file for judicial review, as they believed that the process by which the decision was made was flawed. Logic would suggest that if the process behind the decision was flawed, the likelihood is that the decision itself would be flawed. Unsurprisingly, the judge ordered the Government to reconsider the funding arrangement.

The difficulty is that we will never know what would have happened if the Government’s proposals on judicial review had been in place at the time of that specific case. I suspect that the Government, already having a series of funding arrangements in mind, would have granted the same levels of funding to South Yorkshire and Liverpool, regardless of the process under which the funding allocation was decided. If, at the application stage, it was deemed that South Yorkshire and Liverpool would have been likely to receive the same amount of funding, their application would have been taken no further. To be clear: in South Yorkshire and Liverpool, I suspect that the likely outcome would have been assessed as the same in this case, regardless of the flawed process. Therefore, at the beginning of this process, the case may have been unable to proceed—a case in which 3.6 million people living in those regions would have not been able to access €10 billion-worth of funding.

Such considerations—those predictions of likely outcomes—will now become law under the Government’s plans. I have no doubt that in some areas judicial reviews may be seen as wasteful, but at the same time I strongly believe that the case I have referred to would not have made it to court under the new proposals.

Was the process flawed? Yes. Is the outcome likely to be similar? Perhaps, yes. Does that mean that the people of the Liverpool City and South Yorkshire regions should not have been afforded the opportunity to challenge? No. On the slim chance that the outcome would change for them, taking the case to the courts would have seen the two regions immeasurably better off. It is only right that the people of those regions be allowed to challenge that decision.

A faulty process often leads to a flawed decision, and even if the outcome might be the same, we need to consider those rare cases in which the outcome is predicted to stay the same so judicial review is not granted, but the outcome is then prevented from being different. In their current form, these plans would prevent case law from forming based on the one in 100 cases in which the outcome might have been predicted to stay the same but in fact did not stay the same. We are taking the power of the formation of case law away from judges, and we are instead putting the power of decision making into the hands of people less experienced in making such decisions.

I implore the Minister to look at the case of the Liverpool City and South Yorkshire regions as an example of why judicial review should be granted not on the basis of the likely outcome, but on the basis of the process of decision-making. We must allow flawed processes to be challenged, so that for the cases in which an outcome is different, the people involved are granted that outcome, rather than having it snatched away from them before it goes to court.

Criminal Justice and Courts Bill

Debate between Sarah Champion and Julian Huppert

Monday 12th May 2014 Commons Chamber

[Sarah Champion (Rotherham) (Lab)]

I thank the right hon. Member for South East Cambridgeshire (Sir James Paice) for his support today and on the panel, and my hon. Friend the Member for Barnsley Central (Dan Jarvis) for the support and guidance that he has given me throughout this process. This is very much an issue on which the House can come together, and it has been heartening to see that when it comes to the protection of children, people think on more a logical and protection-based basis than a political one.

New clauses 2 and 3 are the result of a cross-party inquiry into child sexual exploitation that I led with Barnardo’s. We discussed the new clauses in Committee, and I appreciate the careful consideration that the Minister gave them then as well as subsequently, and I hope that that translates into a commitment.

New clause 2 would amend the Sexual Offences Act 2003 as recommended by the inquiry so that the police are better able to prevent young people from being groomed. At present, someone is considered to have committed a grooming offence under section 15 of the Act if they contact the child twice and arrange to meet them, or travel to meet them with the intention of committing a sexual offence. My new clause would mean that the perpetrator would have to make contact only once, although the other requirements of the offence would obviously still remain. During the legal and the police oral evidence sessions, advocates and the police reported that the current legislation is too weak, and that making the grooming offence easier to use would make it a good prevention tool. As one legal professional stated,

“there is a lot to prove”

when trying to get successful prosecutions using current legislation.

In many cases, there have been multiple instances of contact between the perpetrator and the victim, but proving that can be difficult for the police. There was unanimous support for this change in the inquiry’s oral evidence sessions, specifically from senior police officers. Indeed, it seems clear that if a child is travelling across the country to meet an adult, or vice versa, and that adult has demonstrated the intent to commit a sexual offence, it is completely unnecessary to require them to make contact with the child at least twice.

Two years after the UK Sexual Offences Act 2003, the Scottish Parliament considered recommendations and adopted legislation on sexual grooming. Prior to making a decision, the Scottish Parliament heard from a number of witnesses. Several respondents questioned the need for adults to have met, or communicated with, a child on at least two earlier occasions. The Association of Directors of Social Work considered that to be prohibitive, as a meeting can be set up with just one communication. The Scottish Children’s Reporter Administration recommended revising the requirement to one prior communication to more accurately reflect the reality of some children’s vulnerability and perpetrators’ skills in exploiting it. The Law Society’s written submission questioned why there was a necessity for the accused to have met or communicated with a child on at least two earlier occasions. It recommended that the reference to two earlier occasions should be deleted from the offence provision. In oral evidence, the Law Society witnesses confirmed their belief that there needed to be only one communication.

In oral evidence, the Association of Chief Police Officers in Scotland suggested that more than one contact may often be made in the grooming of children for sexual abuse, but that

“If contact had been made on a single occasion and the circumstances and other information that was available to us suggested that the contact was illegitimate it would not be helpful if we were required to wait until another contact had been made or the person had travelled with the intention of meeting the child and for more evidence that the meeting was likely to lead to sexual abuse, before we could intervene.”

In his evidence, James Chalmers also questioned the requirement for two previous communications:

“One lengthy internet conversation could last hours or the best part of a day and could be much more significant than two short conversations. That is why I have my doubts about the limitation of requiring two previous meetings or communications. I am not sure that that provision serves any useful purpose.”

Dr Rachel O’Connell, director of research at the cyberspace research unit at the University of Central Lancashire, gave evidence to the Committee that, in her experience, grooming can take place over a period of many months, but that in at least one case in Wigan, a girl went to a meeting with a paedophile after only a few online conversations during one day. In its submission to the Committee, the National Hi-Tech Crime Unit of Scotland stated:

“There is no evidence to suggest that a paedophile will not carry out the grooming process during the first communication and arrange to meet up with a child. This is no doubt the case in many instances. The aim of the new legislation is the protection of children and this loophole may well be one that the paedophile would utilise to avoid prosecution.”

I understand that the requirement for prior communication on two occasions was probably initially put in place to demonstrate clearly the intent to commit a crime. From a police point of view, however, and especially that of the child, this is at best an unnecessary burden and at worse will lead to a child being abused before the police can act. The Scottish committee recognised this concern, but considered that it is the content and the context of communications that are key to proving the offence, rather than the number of communications. There is a clear possibility that a particularly skilled paedophile could, in one communication, arrange a meeting with a vulnerable child. Because of all this evidence, the offence of grooming a child in Scotland is just one communication. I urge the Minister to follow that lead and adopt the same policy.

On new clause 3, there is at present considerable disparity between the maximum ages at which children can be considered to have been abducted, depending on whether they are in the care system or not. This was outlined well by the right hon. Member for South East Cambridgeshire. New clause 3 would amend the Child Abduction Act 1984 to make it consistent for all children. Currently, the Children Act 1989 makes it an offence to remove a looked-after child from care without authority if they are under the age of 18. The Child Abduction Act 1984, however, which applies to children not in the care system, applies only to children under the age of 16. I went over the details of this issue in the Bill Committee and I am mindful of Madam Deputy Speaker’s warning.

In Committee, the Minister raised the case of a parent who objected to their 16-year-old running off to Gretna Green to be married and used the abduction notice to stop them. I understand his argument, but I believe that police would approach this pragmatically and make the right decision. New clause 3 would be extremely helpful in a case brought to me by a constituent. Her 16-year-old daughter keeps going out to meet her much older boyfriend. The mother is extremely concerned that the daughter is being groomed, but the police do not have enough evidence to act. As the daughter lives at home, the police cannot use an abduction warning notice on the boyfriend, which could be an effective deterrent. As she said:

“What am I meant to do? I tried locking her in her bedroom but she just climbed out of the window. Am I meant to chain her to her bed?”

If the Minister accepts new clause 3, all children under 18 will receive the same protection. My constituent’s daughter would not have to be demonstrably groomed or abused before the police could act. I urge the Minister to consider my new clauses.

[Dr Huppert]

It is a huge pleasure to follow the hon. Member for Rotherham (Sarah Champion). It has been a pleasure to work with her on amendments in Committee and on Report. I pay tribute to her work and to the style with which she has tried to ensure that change happens. Her approach has been to try to solve the problem, rather than to have a political debate that would create heat but not fix anything. I hope she gets the result she deserves from the Government.

I will not say a huge amount on the detail, as the hon. Lady has covered the issues very adequately. When we discussed new clause 2 in Committee, the Minister said:

“it is sensible for me to go away and reflect on what she has said, and to work out what we can sensibly do next.”––[Official Report, Criminal Justice and Courts Public Bill Committee, 27 March 2014; c. 498.]

I hope he will be able to enlighten us on what he has sensibly done next. I notice it is not yet in the form of an amendment that we brought to this House. I hope an amendment is about to be brought, even if it has to, disappointingly, go to another place. I think the change can be made. I accept totally that the exact wording might not be precisely right—it is always hard to write these things perfectly—but the intent of new clause 2 is clear. The Minister was supportive earlier. I hope he will be again.

On new clause 3, I think the wording is slightly further away from what can be achieved. There are genuine issues—if a 17-year-old can get married, it does seem a little strange. I understand why the hon. Lady was not able to capture every single aspect of this. Having tried bits of legislation, I know how hard it can be. I hope the Minister is able to be supportive, so that we can close some of the gaps without going too far and creating problems that we do not intend to cause. I hope we can have helpful comments. I also pay tribute to Barnardo’s, which has done a huge amount of work on this issue.

I am aware of the constraints on time, Madam Deputy Speaker, so I will not go through every single clause, even though I have strong opinions on some of them. The shadow Minister talked about assaults on members of the armed forces. He is absolutely right to say that we should take great care. People who serve in the armed forces do a huge number of things for our country and they deserve protection. They should not be treated in the ways he outlined. Some of the cases are absolutely abhorrent, but I am not persuaded that his exact proposal is the best way to tackle them. I hope he will seek to find a sensible way forward and not play party politics. He has avoided doing so in other areas. We want people to be treated properly and with respect, but I do not think it is right to single out the armed forces from other organisations. There are powers already—I hope the Minister can clarify this—for this to be taken as an aggravating offence. It is already possible to do what he seeks to do, so I do not think his amendment will move us forward.

Turning to the huge bundle of amendments tabled by the hon. Member for Shipley (Philip Davies), I am happy to take credit from him for campaigning for what actually works. I know he is less bothered about that than some of us are, but I want an approach on prisons that helps people and reduces the number of offences committed. That has to be the aim. This is not just about punishment, but about not creating future problems. There is a huge amount of research on what reduces reoffending. Open prisons result in lower reoffending rates, and that is important. He would like to talk about the victims of the original offences, and I have sympathy with that approach, but I would also like to look at the victims of offences that we want to try to prevent from ever happening. That is incredibly important, and it is why I and others are so keen on evidence-informed policy making—that we should find out what happens and listen to experts rather than deal with a gut reaction.