Policing and Crime Bill

Viscount Hailsham Excerpts

Ping Pong (Hansard): House of Lords
Wednesday 18th January 2017 Lords Chamber

[Viscount Hailsham (Con)]

My Lords, I will make some brief observations. When the Government come to consider the recommendations concerning funding at inquests, I hope they will agree to the concept of parity of funding, for all the reasons that have been ventilated on previous occasions. But I repeat what I have said to your Lordships’ House before about the triggering mechanism: I do not believe that the police and crime commissioner should be the trigger for that. The coroner should be the trigger for it. There are three very brief reasons for saying that.

First, the coroner is much better placed to form a view as to the relevance and importance of the representation in question. I do not see that the police and crime commissioner would necessarily have access to the relevant information. Secondly and differently, in some inquests, where the conduct of the police or, indeed, the police and crime commissioner could itself be in question, there is a danger of a conflict of interests. Thirdly, sometimes the integrity of the decision of the commissioner will be in question. What happens when the commissioner is facing an election in short order? He or she may well make a decision influenced by the electoral consequences of that decision. All these things seem to suggest very powerfully that the trigger should be the decision of the coroner, not of the police and crime commissioner.

[Lord Faulks (Con)]

My Lords, the noble Lord, Lord Rosser, seemed to suggest that the Government are using the Bishop Jones report as some sort of excuse to not respond to what is suggested by the amendment. Of course, I will hear what my noble friend has to say, but as I understand the position, the question is being considered very seriously by the Government but it would be rather strange not to consider a report of this magnitude dealing with the best-known example of a series of inquests with improved legal representation before coming to the conclusion, to which they may or may not come, that a response to the amendment is appropriate.

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[Baroness Williams of Trafford]

My Lords, the House will recall that Amendment 134 sought to increase the maximum penalty for the more serious stalking offence, where the behaviour of the offender puts a person in fear of violence, from the current five years to 10 years. The amendment would also increase the maximum penalty for the racially or religiously aggravated version of the offence from the current 10 years to 14 years. I would like to thank the noble Baroness, Lady Royall, but she is not in her place so I thank her in her absence, for introducing that amendment and explaining her concerns about the current maximum penalties during the debate on this amendment on Report.

The Government have reflected carefully on that debate and wish to ensure that the criminal justice system deals with these offences properly. The Government continue to keep maximum penalties under review and are ready to increase them where there is evidence that they are not sufficient to protect victims. Current sentencing practice suggests that, in the majority of cases, the maximum penalty of five years is sufficient to deal with serious stalking. In a small number of the most serious cases, however, courts have sentenced near to the current maximum. For those most serious cases, we are persuaded that judges should be able to pass a higher sentence than the current five-year maximum. This would afford greater protection to victims and be commensurate with the serious harm caused by these cases. The Government therefore tabled Amendment 134A, to which the Commons agreed, which replicates with some fine tuning the provisions of the noble Baroness’s amendment.

However, we are going further. As I said during debate on Report, we are keen to retain consistency between penalties for related offences. The Commons amendment in lieu will also therefore increase the maximum penalty for the related Section 4 harassment offence of putting a person in fear of violence. In line with standard practice, Amendment 134A also provides that the increase in maximum penalties for these offences will apply only to crimes committed on or after the date of commencement. As the Commons amendment in lieu builds on Lords Amendment 134, I trust that in the absence of the noble Baroness, Lady Royall, the whole House will be content with the substitution. I therefore beg to move.

[Viscount Hailsham]

My Lords, I am sorry to say that I really disagree with my noble friend on this matter. There is absolutely no justification for increasing the maximum sentence, and I have two reasons for saying that. First, I do not believe that the increase will provide an additional deterrent. Either the person in question is rational, in which case a maximum sentence of five years is a sufficient deterrent, or they are not rational, in which case it will make precious little difference. I note my noble friend’s point that the judges have rarely sentenced at the higher end of the existing maximum. My other point is a general one. I am very concerned about overcrowding in prisons. There has been a tendency to increase the sentences imposed by the courts. The newspapers and Parliament are responsible for that in part, and I do not wish to see Parliament increasing the pressure on our prisons. This is a small contribution to that, and I am bound to say I am against it.

[Lord Pearson of Rannoch (UKIP)]

My Lords, I notice that in Amendment 134A the proposal is to increase the penalty from seven to 14 years for what is described as an offence,

“which consists of a racially or religiously aggravated offence under section 4 … of the Protection from Harassment Act 1997”.

Before we agree to this increase in the penalty, will the Minister enlighten us about what, particularly, a religiously motivated offence might be? Specifically—and I have asked this before in Written Questions and had unsatisfactory Answers from the Government—could such an offence be caused by a Christian preaching the supreme divinity of Christ and therefore denying the supremacy of Muhammad? Would various assembled Muslims be free to regard that as a religiously aggravated offence under this section?

Brexit: EU Nationals’ Right to Remain

Viscount Hailsham Excerpts

Wednesday 11th January 2017 Lords Chamber

[Baroness Williams of Trafford]

My Lords, the Government have been absolutely clear that we will seek to reach an agreement on this issue at an early stage of negotiations with the EU. I totally dispute the notion of a trade-off, because the EU’s refusal to guarantee the status of UK nationals elsewhere in the EU prior to negotiations shows that the Government have been absolutely right not to give away the guarantee of status for EU citizens in the UK. As the Prime Minister has said, that would have left UK citizens high and dry.

[Viscount Hailsham (Con)]

My Lords, may I remind my honourable friend that for the agriculturalists and horticulturalists in Lincolnshire and adjoining counties access to migrant labour is very important indeed? Without migrant labour it is probable that many of those businesses would not survive.

[Baroness Williams of Trafford]

My Lords, I totally agree with my noble friend—I am proud to be his honourable friend. Of course, this will be part and parcel of what we discuss. The Government totally acknowledge where the skills gaps lie, where temporary labour might be needed, and that will be important.

Policing and Crime Bill

Viscount Hailsham Excerpts

Report: 3rd sitting (Hansard): House of Lords
Monday 12th December 2016 Lords Chamber

[Viscount Hailsham (Con)]

The noble Lord ended his remarks by saying that a grave injustice is caused to those when you have publicity of the kind identified, and I entirely agree. It has been very well illustrated by what my noble friends Lord Lamont and Lord Deben said about Lord Bramall and Lord Brittan. I was Lord Brittan’s PPS in the other place and I know how deeply distressing the allegations were. That also applies to Harvey Proctor; the allegations against him were wholly grotesque and must be immensely damaging. So there really is an underlying mischief of a very serious kind. My noble friend Lord Marlesford and the noble Lord, Lord Paddick, are much to be congratulated on bringing forward these amendments.

If I may say to the noble and learned Lord, Lord Morris of Aberavon, my former pair for a short period of time in the other place, he is absolutely right—the problem will not go away. That means that we have an opportunity to address it. It is a continuing problem for this reason: usually the information is disclosed by a police officer, usually for money. That is not going to go away unless we intervene by statute. The truth always is that, if you give power to officials or opportunities to officials, on occasion they will abuse it. The noble Lord, Lord Lester of Herne Hill, rightly asked about the safeguards. Although I look forward very much to my noble friend’s contribution from the Front Bench, I do not think for one moment that there are effective safeguards outside statute.

I turn briefly to the amendment proposed by my noble friend Lord Marlesford, Amendment 182. I agree with one part of it very robustly. His is much more far-reaching than is the amendment proposed by the noble Lord, Lord Paddick, because it applies to all offences—and I think that he is right about that. Allegations of fraud can achieve very high publicity and be immensely damaging, so I have a great deal of sympathy with the scope of Amendment 182. Where I have greater doubt is with two other parts of the amendment. With respect to the accused person, there is no provision for him or her to consent to publicity as there is in the amendment proposed by the noble Lord. Secondly, I am uncomfortable about the concept of the magistrates’ court being the court in which representations as to public interest are to be determined. I am in favour very much of what the noble Lord says with regard to the judge of the Crown Court.

The noble Lord, Lord Pannick, is a much more distinguished lawyer than I am ever going to be, but there are two points that I would make. First, he says that there may be occasions when an accused person will not be charged because witnesses will not come forward, absent publicity. There is truth in that, but then you have to look at the proportionality of the whole. Yes, there may be one or two such cases, but for an awful lot of cases great injustice will be done to people against whom allegations are made that are wholly unfounded. Finally, the noble Lord suggests that the judges in chambers will not be able to assess and determine the relevant arguments and whether there is a public interest in disclosure. There may be some force in that, but I think not much at the end of the day, because judges in chambers and Crown Court judges are pretty experienced about this sort of thing. They will have to consider quite frequently public interest immunity certificates which have very broad quality concerns attached to them. So in applying the principle of proportionality, the argument advanced by the noble Lord, Lord Pannick, is wrong in that respect. I make one rider: I hope that the rules of the court which will doubtless be introduced if the amendment is passed will make provision for the person against whom the allegations are made to have the opportunity to make representations to the Crown Court judge.

With respect to my noble friend Lord Marlesford, I shall not support his amendment, should he seek your Lordships’ opinion—but, unless my noble friend Lady Williams surprises me with her argumentation, I shall support the amendment proposed by the noble Lord, Lord Paddick.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I am glad I arrived in time to hear my noble friend Lord Campbell-Savours praying me in aid of this amendment, because I do indeed support it. That may surprise many people, because I am ardently an exponent of justice for women and keen to see that the system is alert to the ways in which women often are failed by it. I have written about this for all my professional life of 40 years in the courts. I take this position and I have not changed, my noble friend will be happy to know.

At the time, back in 2003, the point that I was making in opposing Lord Ackner’s amendment was that Lord Ackner was taking issue with the fact that women got anonymity so why should not poor men charged with rape get anonymity? He suggested having equality. It was an argument that was, I am afraid, familiar to me from old judges: “You want equality, Ms Kennedy, we will give you equality”. It did not take account of the fact that the lives of women in society are so often different from those of men. With rape, particularly, women often just could not face coming before the courts to testify against the person who had raped and violated them. I do not have to rehearse in this House the whole baggage around rape: we know why women have been handicapped in coming forward and why the statistics are so low. We know the difficulty of dealing with things that happen in private, but we also know the ways in which women’s whole lives would be affected by the sense of dishonour attached to rape, and for many women this is still the case. Many more women are becoming brave and saying they do not need anonymity but it was given to women in the 1970s to try to redress the balance of law’s historical failure. It recognised something that I want to say very slowly to this House: treating as equal those who are not equal does not create equality.

We do justice by looking beyond the courtroom doors and knowing what really goes on in society. For that reason, we introduced anonymity into the system when that flew in the face of principle. We do not want anonymity in our courts. We want people to stand there and accuse, to face their accuser and to hear what the evidence is. We want justice to be open and for the public to hear it. But the decision was made to give anonymity to women to encourage them to come forward when these terrible events had happened to them. Lord Ackner advocated—and he found some friends in the House—that we had equality in 2003 and should treat everybody equally. But if we had equality, we would not still be hearing women arguing for equal pay and about domestic violence and violence towards women.

You cannot give total anonymity to an accused all the way through a trial because we know that there are cases where people come forward at the right point and say, “This happened to me, too”. If the Savile case and others have taught us anything it is precisely that. However, you do not solve one injustice by visiting another injustice on people. That is why I feel very strongly that the police should not disclose names until the point of charging. We have here a rather unpleasant alchemy of the police and media coming together. I have worked on many cases where a tip-off was given by police to the press who were then standing outside the police station to photograph people as they exited. It never comes to a charge, but the accusation has already been made. Why does that happen, you may ask yourself? In the old days it used to be because the police officer had been promised a drink or a case of whisky would be sent round at Christmas from the local newspaper or a more major national one. I am afraid it could take even more unpleasant forms than the drink at Christmas.

I remind the House that not long ago a woman called Rebekah Brooks—then Rebekah Wade—gave evidence to a Select Committee about the amount of money paid by her newspaper to police officers for precisely the kind of information we have been talking about, which blights people’s lives. From Cliff Richard to Paul Gambaccini, a whole set of people have suffered the consequences of this kind of publicity. The strength of this amendment is that it is not saying that the door is closed. Many women are assisted by the fact that other women will ultimately come forward because they hear that a charge has at last been brought against somebody. They are not standing alone and then they have courage. However, you also have to prevent other injustices. That is why you protect people by giving them the cover of anonymity until the point of charging. Then, and only then, should a name be put into the public domain.

How do we deal with police misbehaviour? I know there are noble Lords who do not think the police ever misbehave: they do. Happily, it does not happen as often as many people think but it is too often and police misbehaviour is behind most of this kind of publicity. If the standing order is not working and the principles are not being adhered to, how can you give teeth to preventing police officers doing this? The only way is if they face sacking or prosecution if they are discovered to have interfered with due process. We must have stronger responses to police misbehaviour of this kind.

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[Baroness Howe of Idlicote (CB)]

My Lords, I have added my name to Amendment 185 in the name of the noble Lord, Lord Wigley, for all the reasons he has explained so eloquently, even though pushed to deliver them very quickly. I shall be much briefer.

If someone has been sexually assaulted by a complete stranger and has then reported the details to the police, it is clearly important that when the police then interview potential suspects they do not under any circumstances, whether the potential offender has been charged or not, disclose the identity of the victim to such suspects. In the past, perhaps, this would not have been so vital, but today if the attack has been carried out by a sexual predator, the availability of the internet, Facebook and all the other many ways of identifying where a victim lives will inevitably mean that the attacker can continue to harass their victim via all or any of these means. Indeed, I am sure noble Lords will have read many harrowing stories of just such instances—we have heard one or two of them already—where the named victim has ultimately been forced to leave the area and resettle in a completely different, new part of the country, changing their names too.

The noble Lord’s amendment is vital. I very much hope that the Minister will be able to accept it in its entirety.

[Viscount Hailsham]

My Lords, I am conscious that your Lordships want to vote on Amendment 187, so I shall be brief, but I have to say that this proposal is, to my way of thinking, one of the most unjust that I have heard in your Lordships’ House for some time. It is worth identifying what it says. I shall come to the proviso in a moment, but what it says that somebody who is accused of rape is not to know the name of the accuser—the complainant. For that matter, somebody who is accused of actual bodily harm or grievous bodily harm is not to know the name of the accuser or of the witnesses. I ask rhetorically: how on earth can a defendant or his representatives prepare his case for trial without knowing the name of the accuser or the witnesses? After all, they may not have been there. They may be notorious liars. There may be lots of other reasons to distrust their integrity.

The substantive clause here precludes the police from giving the name of the victim or the witnesses to the accused person. That is curiously reminiscent of the procedure underlying lettres de cachet in pre-revolutionary France, as described in A Tale of Two Cities. Let us look at the proviso, because it needs a bit of probing. The proviso in subsection 1(b) of the proposed new clause is so far as,

“non-disclosure would not impact on … a new trial”.

Who is to judge whether it impacts on a fair trial? I can tell noble Lords from the language of the proposed new clause that it is to be the police or the Crown Prosecution Service. So the police or the Crown Prosecution Service, who are party to the procedure, who are making the allegations, will judge whether it is fair to disclose the identity of the victim or the witness. How can that possibly be fair? What procedure is there in the proposed new clause for the accused person to challenge that determination? There is none at all.

We are told, “Ah, the judge will let it in”, but the judge cannot when there is an absolute prohibition. There is no procedure here whereby the decision of the police officer or the Crown Prosecution Service can be challenged. Probing a little further, what about police statements? I am sure my noble friend knows full well that police statements have to be served on the defendant prior to trial so that they can prepare and understand their case. If the identity of the witness or the victim has to be redacted out of the statements, what possible purpose is there in serving the statements at all? One merely has to identify these things to see that this would be struck down, certainly by the courts. It is a clear contravention of the provisions in the convention now in domestic law in favour of a fair trial.

Incidentally, on proposed new subsection 1(c), regarding the protection of people, bail conditions can do that. There may be a case for strengthening bail conditions but there is absolutely no case for introducing a measure that will do a profound injustice in our courts. I hope my noble friend the Minister will give a robust response to this.

[Lord Carlile of Berriew]

Before the noble Viscount sits down, is the point not that the complainant may say that the person who allegedly assaulted him or her is a stranger but may have an oblique motive for so saying? How is the defendant therefore able to defend himself or herself without being able to know who the accuser is? It is a palpable injustice which was not covered, I regret, by the passionate speech by the noble Lord, Lord Wigley, which omitted that crucial point.

[Viscount Hailsham]

I could not agree more with the noble Lord. I agree with him as I agreed with him on the previous debate. We are dealing here with the possibility of profound injustice and we should guard against it.

[Baroness Cohen of Pimlico (Lab)]

My Lords, my name is also attached to this amendment, but I would not normally have spoken given that the noble Lord, Lord Wigley, and the noble Baroness, Lady Howe, were such distinguished proponents of it. At the moment there is a choice of injustices. Perhaps we should have provided—and I should be glad to provide at Third Reading—a clause saying that a judge may decide whether the name should be disclosed. This is, however, also a modern offence. In the old days it might not have mattered very much if you disclosed only the name of the accuser. These days, the perpetrator has no trouble at all, because of the spread of social media, and these cases are more frequent.

One reads of cases all the time and I want to disentangle this from the issue of rape. It is not entirely about rape. It is about being knifed in the street or pushed under a Tube train by a perfect stranger, as I am sure we have all read about, and being terrified thereafter in case he or she comes and does it again. Therefore, I would be very grateful if the Minister would understand the strength of feeling and the injustice being done. If we can put in a clause at Third Reading offering the possibility of review by a judge if necessary, I would be glad to do so.

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[Baroness Royall of Blaisdon (Lab)]

My Lords, in moving Amendment 187A, I declare an interest as a trustee of Paladin, the National Stalking Advocacy Service. It is four years since a stalking law was introduced, following an amendment that I tabled in this House which was the culmination of terrific work by the independent parliamentary inquiry, whose adviser was the excellent Laura Richards and which included the noble Baronesses, Lady Brinton and Lady Howe of Idlicote. It was strongly supported by colleagues in the House of Commons, notably Yvette Cooper and Stella Creasy. I pay tribute to the Government for the progress made since 2012, the introduction of the offence of coercive control and last week’s announcement of stalking orders.

Stalking destroys lives. Some 40% of the victims of domestic homicide have been stalked, including Jane Clough and Holli Gazzard, and the punishment must fit the crime. When I tabled the original amendment, it was always the intention that the maximum sentence be 10 years. However, due to the two tiers in the Protection from Harassment Act, the higher test mirrored Section 4 harassment and became five years by default. Experience now tells us that this is not enough.

My amendment mirrors a 10-minute rule Bill introduced by Alex Chalk, the Conservative MP for Cheltenham, and supported by MPs from all parties, including Richard Graham, the MP for Gloucester, whose constituent, Dr Eleanor Aston, was stalked for eight years by a former patient, Raymond Knight. When he was sentenced to five years—the maximum sentence—the judge stated that he would like to have given Knight a longer sentence as he was a serious risk to Dr Aston. This case is not unique; I could cite numerous other examples, including Kristine Carlson and Katie Price. Extending the maximum penalty would set the tone, allow for greater flexibility and make it clear that stalking is a serious offence. An increased maximum sentence is necessary for the most serious cases, particularly where there is repeat offending. At present a defendant who pleads guilty to this most serious offence, even if it is a repeat offence against the same victim, will serve a maximum of 20 months. This is insufficient to protect the victim.

Sadly, too few cases still result in a stalking charge, and, when they do, the sentencing does not reflect the serious nature of the crime. This was highlighted as a cause for concern when we were meeting Home Office lawyers to discuss the drafting of the stalking legislation in 2012 and given the proposed maximum sentence of five years. Training is important. So, too, are sentencing guidelines. The maximum penalty should reflect the serious impact that this psychological crime has on the victim.

Stalking is a long-term pattern of behaviour. It is persistent and intrusive, and it engenders fear, alarm or distress. It results in long-term psychological harm and can escalate to violence and murder. Stalking is about fixation and obsession. It is clear that when people fixate and stalk, they are psychologically unstable. A significant minority are psychotic, and some may suffer from undiagnosed personality disorders. Currently, stalkers are not routinely assessed, and they should be. More robust sentences would allow for a robust mental health assessment which informs diagnosis, treatment and management.

The Minster may well say that the Sentencing Council is undertaking a review and that it would be precipitate to pre-empt that review. The Sentencing Council reviews sentences within the framework set by Parliament, so it is for us to act and then for the Sentencing Council to build its guideline around the maximum tariff.

Of course, it is true that, alongside the stalking, there may be other offences—for example, assault or arson—that can be charged. But in a significant number of cases, stalking is the only offence, a very grave offence, which can lead to the victim being a prisoner in their own home, developing post-traumatic stress disorder, losing their job, losing their relationship, losing their mental health and ultimately losing their life. It is a serious offence and must be treated as such.

Paladin’s research shows that victims feel unsafe due to short sentences. Preventive orders do not lead victims to feel safe because it is the very nature of the stalking offence that means such boundaries are prone to being breached. In the most serious cases, the only time a victim truly receives any respite is when his or her stalker is behind bars. Victims continue to live in fear and are terrorised and terrified when the stalker comes out. It is clear that short sentences do not allow for any form of diagnosis, treatment or management, so the behaviour continues in a revolving-door fashion. This is costly to victims and to the criminal justice system.

It is important to highlight the fact that stalking occurs over an extended period of time. Often, stalkers are prosecuted only for breaching restraining orders. The maximum sentence for criminal damage, burglary and offence against property is 10 years. These offences are acute and one-offs. Allowing judges greater flexibility on sentences will acknowledge the repetitive nature of stalking, which can span multiple years, offences and breaches.

Some victims have felt helpless due to the long-term, insidious and persistent nature of this crime—as in the case of Helen Pearson, who was almost killed by Joe Willis and attempted suicide twice. The escalation to murder should be clearly understood. These cases are called “murders in slow motion” for a reason, and we have an opportunity to intervene earlier and prevent them. It is one of the few crimes where early intervention can prevent serious psychological damage, violence and murder. That is precisely why we need to increase the maximum sentence.

My amendment would give judges the greater flexibility they require in sentencing to allow the sentence to fit the crime and thus better protect the victim whose life is being torn apart. I beg to move.

[Viscount Hailsham]

My Lords, I very much hope that your Lordships do not support this amendment. My reasons are both general and particular. As to my general reason, I am very cautious about any inflation in sentencing. Our prisons are already grossly overcrowded. When I was Prisons Minister at the back end of the 1980s, we had a prison population of some 44,000. We now have a prison population of just short of 85,000, and that makes for gross overcrowding. Until very recently, I was on the monitoring board of a local prison. As a member of the Bar, I go to prisons, and the facilities in prisons are overstretched almost beyond imagining. In this respect, the POA is right. I am very anxious that we should not do anything that tends to make courts increase the overall level of sentences. In the past five years, the average sentence has increased from 12.3 months to 16.4 months, and conditions in prisons are dire.

That takes me to the second point, and I shall be very brief. Five years—the existing maximum—is a long sentence, even when one takes into account the fact that the offender will not serve the whole of it. Being shut up in custodial circumstances in most of our prisons is a deeply unpleasant experience. If the offender is rational, then five years is a perfectly good deterrent. If the offender is not rational, then increasing the sentence will make no difference whatever to his conduct. All we are doing is to drive up the overall level of sentences, and that is thoroughly undesirable.

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[Viscount Hailsham]

My Lords, I shall be very brief. I have no objection to my noble friend answering the questions posed by the noble Lord; it is obviously right that she should. My objection lies to proposed new subsection (3), because I do not think that the existing law needs any change. If one looks at the primary legislation, one sees that the ability of defence counsel to ask questions or call evidence is hedged about by judicial restriction and can be exercised only relatively rarely. I have been in court many times when this has happened, and there is no sense that the legislation is being abused, that evidence is being adduced unnecessarily or that cross-examination is being done wrongly.

At the end of the day, I believe that the law is right as it stands. Although I have no objection to a review and no objection to the questions put by the noble Lord, I do not think we need to change the law—and I am therefore bound to say that subsection (3) of the proposed new clause poses problems as far as I am concerned.

[Lord Hope of Craighead]

My Lords, I will add just a footnote to what the noble Viscount said. Some years ago, there was a challenge to Section 41 of the 1999 Act on the ground that it was incompatible with the convention right to a fair trial. I sat upstairs in a committee room as a Law Lord with the Appellate Committee. We were very careful to restrict the ability of counsel to explore these matters, as far as we possibly could consistent with the right to a fair trial. I am glad to hear that, from the noble Viscount’s experience, the system is working very well. On the other hand, when we were framing our restrictive view as to how the section should be applied, we were looking to the future; we did not have the benefit of experience. Like the noble Viscount, I have no objection to a review, which I suppose might serve some useful purpose by informing everyone as to whether the system is really working as the Law Lords expected it should.

Policing and Crime Bill

Viscount Hailsham Excerpts

Report: 1st sitting: House of Lords
Wednesday 30th November 2016 Lords Chamber

[Baroness O'Neill of Bengarve (CB)]

My Lords, this amendment is also in the names of the noble Lord, Lord Paddick, and the noble and learned Lord, Lord Falconer of Thoroton. The second part of the Leveson inquiry was promised by the former Prime Minister in order to investigate allegations of collusion—above all, corrupt collusion—between the press and the police. An undertaking was made to victims of press and police corruption, including those who had lost loved ones at Hillsborough and were then smeared, among many other victims.

The noble Lord, Lord Strathclyde, when he was Leader of the House, read out the former Prime Minister’s Statement on this matter to this House on 29 November 2012—almost exactly four years ago. He said:

“When I set up this inquiry, I also said there would be a second part, to investigate wrongdoing in the press and the police, including the conduct of the first police investigation. This second stage cannot go ahead until the current criminal proceedings have concluded, but we remain committed to the inquiry as it was first established”.—[Official Report, 29/11/12; col. 338.]

But there has been a shift, and the Government are apparently no longer so committed to Leveson part 2 happening once the criminal proceedings are finished. The noble Baroness, Lady Neville-Rolfe, answered a Written Question on Leveson 2 on 15 June this year. She wrote:

“Criminal proceedings connected to the subject matter of the Leveson inquiry, including the appeals process, have not yet completed. We have always been clear that these cases must conclude before we consider part 2 of the inquiry”.

So now it is just to be considered, not undertaken.

This is not what was promised to the Hillsborough families or to other victims of press and police collusion or corruption. In the light of the conviction of Mazher Mahmood, the findings of the Hillsborough Independent Panel, the finding that News of the World executives lied to a Select Committee and the apparent continuation of what we might, kindly, call business as usual at some larger newspaper corporations, I do not think we can say that we are sure that the need for Leveson 2 has diminished. The Hillsborough Family Support Group worked with the shadow Home Secretary, Mr Andy Burnham, to table an amendment to the Bill on Report in the Commons which would have recommitted the Government to going through with Leveson 2. It is that amendment that I have agreed to move today.

The Government could have begun proceedings for Leveson 2 weeks ago, when the relevant trials had finished. Doing so would help draw a line under Hillsborough, Orgreave, Daniel Morgan and countless other scandals involving both the police and the press.

I do not think this is a trivial matter. A commitment was made to Leveson 2; the victims want it; the public want it; and, for democracy to function well, we all need it. The Government should get on with what they promised in 2011 and 2012 and begin Leveson 2 now. I beg to move.

[Viscount Hailsham (Con)]

My Lords, despite the eminence of the noble Baroness, I hope the Government will be robust in resisting the amendment. I have one general principle about it. Over a long time in Parliament, I have been involved directly and indirectly with a very large number of inquiries; I have participated in some. There is a proportionality rule: is the likely outcome of the inquiry and the chances of its recommendations being implemented sufficient to justify the cost of setting it up and the bureaucracy involved? In the majority of cases in which I have been involved, the answer to that question is no, and I strongly suspect that this time the answer is no again.

All of us who have been in public life know full well that there has always been collusion between the police and journalists—certainly ever since I was first in the House of Commons, nearly 40 years ago. It is lamentable, but it has been the case. I doubt that anything else that will be turned up in this inquiry would justify the initial cost.

I have one further point. It is absolutely right that police officers who take money for supplying confidential information—that is, are bribed—should be the subject of criminal procedure. But that is also, in the generality of cases, true of the journalists. What we are dealing with when a journalist pays a police officer is a criminal conspiracy to do an unlawful thing.

Occasionally, there will be instances where the public interest is genuinely involved. But one thing I have noted in recent months and years is the unwillingness of juries to convict journalists for doing this, because quite specious claims of public interest are always invoked. In general, it is public curiosity, not interest, which justifies the process. I very much doubt that we will get juries to see the rightness of what I have been saying, so there may have to be another way forward.

I very much hope that the press industry—editors in particular—recognises the impropriety in the generality of cases of journalists paying police officers for information. The fact that juries will not convict for these purposes is neither here nor there. I would hope that senior journalists would incorporate into the contracts of employment with their journalists a prohibition on doing what I have just described, and that editors and proprietors would be willing to enforce that prohibition.

Reverting to my first point, I am sorry, but I cannot support the noble Baroness’s very eloquent submission to your Lordships’ House.

--- Later in debate ---

[Lord Kennedy of Southwark]

My Lords, Amendment 106, which is tabled in my name and that of my noble friend Lord Rosser, would delete the provision that would allow police civilian staff and volunteers to use CS spray or PAVA spray. We had an interesting, if somewhat confusing, debate on this subject in Committee. I think this is a step too far and that the public will be rightly concerned about who is authorised to use these incapacitating sprays.

PCSOs have specific duties and have performed them very well. I pay tribute to them and the work they do. This provision enables civilian staff and volunteers to be designated as PCSOs to use these weapons, which can kill and have unfortunately done so. Equipping volunteers and staff with such weapons, giving them some limited training and authorising them to use those weapons against members of the public is a huge leap and one we need to be very careful about. I do not believe that the Government have made a convincing case about why it is necessary to take this route.

We have heard very little in these debates about special constables, who have the powers of police officers and undertake extensive training. Surely greater recruitment and use of special constables would be a better option if the Government want more officers on the street supporting the full-time police service. I will listen carefully to the debate and, in particular, to the response from the Minister. I beg to move.

[Viscount Hailsham]

I propose to be brief. This amendment, as has been very fairly pointed out by the noble Lord, removes the substance of new subsection (9B) of the Firearms Act. It is therefore relevant to look at the new subsection to see the extent to which it is acceptable. I am content with one bit of it, welcome another bit of it and remain very concerned about a third bit of it, and I shall deal with each rather briefly.

--- Later in debate ---

[Lord Hope of Craighead]

Before the noble Viscount sits down, can he be a bit more specific about what he has in mind as a self-defence device? If you have a weapon which is capable of inflicting injury, it all depends on the mind of the user. I understand the point he is making, but I am not quite sure that one could have such a category.

[Viscount Hailsham]

I think one can. I think a Taser is a self-defence device. I know there is a dispute about that and that many take the view that it is unduly dangerous, but I take the view that it is self-defence. I take the view that pepper spray and things of that kind are self-defence. I take the view that a revolver is not. It is that sort of distinction.

--- Later in debate ---

[Baroness Williams of Trafford]

My Lords, these amendments return us to an issue that was debated at length in both the other place and in Committee in this House, namely whether it is ever right for designated members of police staff, or the new category of designated volunteers, to carry CS or PAVA sprays for defensive purposes—I stress the point that this is for defensive purposes.

I should point out to the House that, although most of our debates have been about whether it is right for volunteers to carry defensive sprays, Amendment 106 as drafted would also prevent chief officers equipping their existing paid staff, such as PCSOs, with such sprays. I assume this is not intention of the noble Lord, Lord Kennedy, but it would be helpful if he could clarify this when winding up.

When we debated this issue in Committee, a number of noble Lords expressed the view that the use of force is somehow incompatible with the PCSO role, and even more so for volunteers. For example, the noble Lord, Lord Paddick, said that the appropriate route for an individual who wishes,

“to volunteer to get involved in the use of force in the exercise of police powers”,

is,

“to become a special constable”.—[Official Report, 26/10/16; col. 267.]

I think he said that again today. However, it is important to put on record that, given the long-standing tradition of policing by consent, I would hope that no one who wishes to help with the policing of their community, as a police officer or a member of staff, whether paid or as a volunteer, does so with a view to using force against their fellow citizens. There are of course myriad roles which police officers, staff and volunteers perform regularly that do not involve the use of force.

Indeed, as we have discussed, the primary role of a PCSO across England and Wales is to engage with members of the public and to carry out low-level interventions such as dealing with anti-social behaviour. However, as was discussed in the House of Commons earlier this month, it is a sad fact of life that both police officers and PCSOs are assaulted and injured on duty. For example, in 2015-16, 270 assaults were reported by PCSOs in England and Wales, and those figures do not include the British Transport Police. It should be noted that this figure includes only assaults that officers report to their health and safety or human resource teams. In some cases, officers will choose not to report cases, as it is usually not compulsory to do so. Therefore, in reality, this figure is likely to be much higher.

We must therefore ensure that chief police officers are able to use their operational experience to make judgments as to the necessary level of defensive equipment and self-defence training that they make available to their officers and PCSOs. The only other option for chief police officers would be to withdraw their PCSOs from areas where there was a threat to their safety, potentially making disorder more likely if members of the community were unable to engage with a familiar face in uniform.

The situation is in essence no different from that of special constables, who are themselves volunteers. They have all the powers of a police officer, and a significant number are trained in the use of defensive sprays. I also point out that a small proportion of specials are trained in the use of public order tactics, so the use of force by appropriately trained police volunteers is not a new idea.

The noble Lord, Lord Paddick, has tabled Amendment 107, which would remove Clause 38 from the Bill. The change to Section 54 of the Firearms Act 1968 made by Clause 38(2) is consequential on the provisions in Clause 37 enabling designated volunteers to be given access to defensive sprays. It therefore follows that if Amendment 106 were agreed to, Clause 38(2) would be unnecessary. However, Clause 38(3) deals with a separate point, making it explicit that special constables are members of a police force for the purposes of the Firearms Act 1968 and therefore do not require a certificate or authorisation under the 1968 Act when equipped with a defensive spray. Accordingly, the amendment goes wider than I believe the noble Lord intends.

A question was asked about the most appropriate route for an individual who wishes to perform front-line policing to join the specials. I think I have already addressed that point but I add that there might be reasons why an individual who wants to volunteer to help to make his or her community safer chooses not to join the specials. These reforms will enable those who wish to help to keep their communities safe to do so even where they are unable to meet the requirements for being a special—the time commitment, for example, or they may be in an occupation where they are prevented from being a special, such as being a Border Force officer, but still have skills or experience that could be of value.

My noble friend Lord Hailsham asked about the order-making power in Clause 37(6) enabling the Home Secretary to make regulations that would allow police staff and volunteers to use a firearm. The power is primarily intended as a form of future-proofing. Should, for example, a new form of defensive spray that uses substances other than CS come on to the market—

[Viscount Hailsham]

I do not want to press my noble friend too hard on this as she may want to indulge in correspondence on the matter. However, the Explanatory Notes state, with reference to sub-paragraphs (b) and (c):

“This enables the issue of appropriate self-defence devices in future, once such a device has been tested and authorised”.

What is there in the Bill that confines the weapon to be authorised to a self-defensive device? It is open-ended, so it includes offensive weapons.

--- Later in debate ---

The effect of child sexual exploitation can have a terrible impact on young people in later life, and therapy or other help gives them a better chance to rebuild their lives. I urge the Government to consider this very modest amendment and accept its recommendations. I beg to move.

[Viscount Hailsham]

My Lords, I hope we do not go down this road. It seems a thoroughly bad idea. Of course there is a good case for voluntary provision. There may be many cases where assessment is highly desirable but this is coercive. It imposes an obligation on the police officer to do what is set out in the amendment.

[Baroness Walmsley]

I would like to make it clear that it would be only with the consent of the child, so it would be consensual as far as they were concerned.

[Viscount Hailsham]

That is not what it says in the amendment. Had it been so, I would not object, but we are talking about a piece of legislation, and it is coercive. If the police officer has to do it, presumably the child has to co-operate. You are not dealing just with young children, either. You are dealing with people up to the age of 18 and I would have thought that there were a substantial number of cases where the child would not want to be assessed and would find it pretty traumatic if he or she was. While there may be a strong case for putting in place a voluntary system for doing it, there is absolutely no case for making it coercive. I really hope that the House will not think of pursuing such a policy.

[Baroness Howe of Idlicote]

My Lords, I think I will leave aside the contribution of the noble Viscount, Lord Hailsham. I do not really agree with what he said. My name is on this amendment and I support it because it would create a clear and explicit referral pathway for child victims of a sexual offence or other forms of child abuse for an assessment of their mental health needs.

As we have heard, the amendment would deliver on the Government’s own commitment in Future in Mind and work to put in place policies that go a step towards creating parity between physical and mental health. The Government say that they want to develop:

“A better offer for the most vulnerable children and young people”,

including by ensuring that,

“those who have been sexually abused and/or exploited receive a comprehensive assessment and referral to the services that they need, including specialist mental health services”.

The amendment would deliver on that ambition.

It is important to recognise that the Government have made welcome steps in this area, in particular through their investment of £1.4 billion over the course of this Parliament in children’s and young people’s mental health services. However, there is evidence to show that this is not yet reaching the most vulnerable. According to research from the Education Policy Institute, in the first year of funding, of the expected £250 million only £143 million was released—and of that, only £75 million was distributed to clinical commissioning groups. For 2016-17, £119 million has been allocated to clinical commissioning groups—but this has not been ring-fenced, risking that it will be spent on other priorities.

It is clear from the evidence available and what we have heard today that these young people are at extremely high risk of developing a mental health condition. Lifelong difficulties can result in drug and alcohol abuse, mental ill-health, homelessness, gang affiliation and/or disability if the underlying trauma of their experiences is not met with swift and appropriate intervention. Research has found that up to 90% of children who have experienced abuse will develop a mental illness by the time they are 18. In the spirit of parity between physical and mental health to which we all aspire, in a comparable physical situation people would be screened and have regular check-ups, yet we do not offer the most vulnerable children the same opportunity to receive the help they so vitally need.

National policy is increasingly focused on the social determinants of long-term health. Evidence has shown that adverse childhood experiences are a key risk factor for poor outcomes such as worse health, coming into contact with the criminal justice system and worse employment and educational outcomes over the life course. Children who are victims of a sexual offence are often left without support for their mental health difficulties, which are likely to develop into more entrenched mental health conditions later in life, because they do not meet the thresholds for clinical interventions or because a suitably trained professional does not properly assess their mental health needs.

This amendment would provide national consistency, as we know that the situation across the country is inconsistent and young people are not always getting the holistic assessment they need to meet their needs. Thresholds for mental health clinical interventions are inconsistent across the country and referral routes into CAMHS are varied, with some areas not allowing the local voluntary sector to refer directly. Some sexual assault referral centres refer children for mental health support, but others do not.

In her response in Committee, the Minister mentioned the commissioning framework for adult and paediatric sexual assault referral centre—SARC—services, published in August 2015. However, case-tracking evidence from the Havens in London found that, of the 24 children under 13 who were reviewed, only three were referred to CAMHS and that, of the 56 young people aged 13 to 17 who had their cases reviewed as part of the study, only five were referred. It was acknowledged in the same report:

“Few children are referred to CAMHS from the Havens, most likely as interventions are generally at the forensic examination stage and it is difficult to determine longer term emotional support needs at this … stage”.

It is therefore necessary to ensure that other agencies have a duty to refer for a mental health assessment, in order to guarantee that a young person’s holistic mental health needs are assessed after their traumatic experience.

Alongside providing national consistency, this amendment would introduce a referral for an assessment and enable better understanding of the level of support that needs to be provided both by CAMHS and outside CAMHS. This will lead not only to better responses and referral routes for young people but a greater understanding to inform commissioning at local level, so I hope that the Minister will be able to accept this amendment.

[Noble Lords]

Viscount Hailsham.

[Viscount Hailsham]

Do not worry—I answer to any old name.

[Earl Attlee]

I meant the noble Viscount. I absolutely accept the point made by my noble friend. There is no flexibility in the amendment. After a fleeting grope of a 17 year-old at a Tube station, someone would still be caught by this in totally inappropriate circumstances. So, although I accept the need in serious cases, I am afraid that I cannot advise my noble friend the Minister to accept this amendment because of the lack of flexibility.

[Baroness Williams of Trafford]

I applaud the noble Baroness, Lady Walmsley, on her intention to ensure that children who have been abused have the proper provision following that abuse, mainly because they are often traumatised by their experiences. I share her desire to ensure that such children receive the support they need, including for their mental and physical health, but I must reiterate my strong belief that the overriding determinant of referral for health services must be clinical need.

[Viscount Hailsham]

With no coercion.

[Baroness Williams of Trafford]

With no coercion, as the noble Viscount says. The important thing is that all children and young people, not just those who are victims of sexual offences, get the right care at the right time, based on their needs—not on a non-clinician’s view of their potential needs, based on their experiences. Furthermore, the amendment makes no reference to obtaining consent.

I think that my noble friend Lord Hailsham referred to that. Individuals, including children or their parents or carers, as appropriate, need to consent to receive treatment. Where a person indicates that they would like to avail themselves of any referral, consent can be sought for the relevant personal details to be passed to the health provider. This is the proper course of action, rather than automatically passing personal details and potentially sensitive information about sexual abuse to a third party, even when that third party is a healthcare provider. We know there is more that can be done to meet the health needs of children and we are taking concrete steps to do that.

The Government wholeheartedly agree that mental health services should be available to children and young people who need them. We are investing significant funding to that end—but, as I have indicated, it would be wholly inappropriate for referrals to mental health services to be the responsibility of police officers rather than appropriately trained practitioners. I stand ready to meet the noble Baroness and other noble Lords who have put their name to this amendment to discuss these issues further, but I hope that at this stage the noble Baroness will agree to withdraw her amendment.

--- Later in debate ---

[Baroness Walmsley]

My Lords, this is another thing on which I did not succeed in convincing the Government in Committee, but I listened very carefully to what the Government said and have made some changes.

I had been seeking to ban the use of Tasers by police in psychiatric wards, but since the Government feel that their use may sometimes be necessary, my amendment asks the Government to specify very clearly in regulations the exceptional circumstances under which Tasers should be used. Bearing in mind that the use of such a weapon is a very serious issue and has sometimes led to the death of the person who has been tasered, my amendment asks that any use of such a weapon in a psychiatric ward should automatically be referred to the Independent Police Complaints Commission as a matter of course in just the same way as a death in custody is reported and investigated. By that means we would find out in considerable detail what led to such a severe intervention, and that information can be helpful to the police and mental health providers in improving the way they deal with people in great distress who may well have turned to some kind of violence or aggression. The hour is late, and that is all I wish to say. I beg to move.

[Viscount Hailsham]

My Lords, I agree with the noble Baroness that the hour is late, and therefore I shall be brief. I was here for the debate in Committee on this subject and I was wholly persuaded by the Minister about the undesirability of this amendment. I know full well that Tasers can be very injurious and I know that they are dangerous, but I also know from considerable personal experience that people in psychiatric wards can be extremely dangerous, volatile and violent.

I speak as somebody who was for some years Minister for the special hospitals. There were three mental hospitals in my constituency. I was the Minister for Police for a time and, relatively recently, I was on the monitoring board of a local prison. I know they are different, but in prisons you see many people who ought to be in psychiatric hospitals. The truth is that sometimes there is no choice: people get possession of a weapon and threaten their nurses or pose a very real threat to the other residents on the ward. What is a police officer to do if summoned and faced with a person with a knife? The truth is that in exceptional cases—which I will come to in a moment—a Taser may be necessary. I am certainly not going to go down the road of prohibiting that by statute.

What does “exceptional circumstances” actually mean? I can tell the noble Baroness: when there is a reasonably founded belief that it is necessary in self-defence or in defence of a third party. If I was the Secretary of State and put that into a statutory instrument, so what? Ultimately, it has to be decided by the court. If you look at this amendment and reflect on its consequences for one moment, the police officer is guilty of assault unless he can bring forward the defence. But who is responsible for bringing forward the defence? Does he have to prove that his acts fall within the exceptional circumstances or does the prosecution have to negate their existence? I suspect the latter, but it is extremely difficult for a police officer in those circumstances. It is a legal minefield and good news for lawyers—which is not something I am advocating in this case. It is a thoroughly bad amendment and I hope we hear no more of it.

[Earl Attlee]

My Lords, I will briefly support the noble Viscount. I would not want to put a police officer in the very difficult position of having to decide whether to get involved in close engagement with someone who is very dangerous or use a conventional firearm, with all the difficulties that that entails.

Brexit: Immigration Policy

Viscount Hailsham Excerpts

Wednesday 30th November 2016 Lords Chamber

[Baroness Williams of Trafford]

I thank the noble Lord for that. I have read the report and the recommendations, and I welcome the report. The Government have been clear that as we conduct our negotiations it must be a priority to regain more control of the numbers of people who come here from Europe. It would not be right, therefore, for us to give a running commentary on negotiations.

[Viscount Hailsham (Con)]

My Lords, in the context of immigration, may I remind my noble friend of the needs of the agricultural and horticultural industries in constituencies such as my former one? They are dependent on labour from abroad, most notably from eastern Europe, and if they are denied that resource they will face very considerable problems.

[Baroness Williams of Trafford]

I acknowledge what my noble friend says and I hope it will reassure him that we are talking to all sectors, not just the agricultural sector but sectors such as social care, because these things are very important as we move forward.

Policing and Crime Bill

Viscount Hailsham Excerpts

Committee: 5th sitting (Hansard): House of Lords
Wednesday 16th November 2016 Lords Chamber

[Viscount Hailsham (Con)]

My Lords, I have a great deal of sympathy with what the noble Lord is saying. What troubles me slightly is the quantum of the compensation and, more particularly, whether there is any appeal on it. I think these offences are triable either way. In the magistrates’ court, is there an appeal to the Crown Court on the quantum contemplated? If the case is tried on indictment, where lies appeal from the compensation ordered by the Crown Court?

[Lord Marks of Henley-on-Thames]

My Lords, it is quite plain that there ought to be an appeal. I have not looked at the provisions and perhaps I can clear that up before Report. It is also quite clear that the appeal from the magistrates’ court on compensation would go to the Crown Court and from the Crown Court to the Court of Appeal, where the standard for an appeal is high but one would expect the judges to get it right. The noble Lord knows well that these issues of compensation are very much in the discretion of the trial judge, taking into account both the harm caused and the ability of the offender to pay the compensation. It is a perfectly good question and I undertake to look at it before Report.

Finally, Amendment 219 would simply add these offences to the list of sexual offences in respect of which a victim is entitled to anonymity. It is right that there should be anonymity for victims of revenge porn offences because these fall squarely within the category of sexual offences that are entitled to such anonymity. I think this is relatively uncontroversial. I beg to move.

[Viscount Hailsham]

My Lords, I give qualified support to what has just been said by the noble Lord, Lord Marks. I have a great deal of sympathy with the underlying argument which he has advanced. There is no doubt, and it is increasingly the case, that people are using private intimate photographs and films for the purpose of blackmail or revenge. Given that we have a Bill where we can extend the existing law, I see absolutely no reason why we should not extend the substantive offence of disclosure to one of intent as well. That is a perfectly sensible amendment and I would support it if given the opportunity.

Regarding extending the definition of the “damage” from distress to the enlarged category which the noble Lord spoke of, my feeling is that the word “distress” probably encompasses what he has in mind. However, I have no objection to the extension in the sense that it does at least remove any doubt that may exist and is certainly not harmful. I suspect it is not necessary but I am not against it.

I made a point about compensation when I intervened on the noble Lord and I will not repeat it at any length. In principle, I am in favour of a compensation provision, but I worry about compensation at large without any kind of regulation of the amount: that can mean injustice. I am far from clear on whether the Crown Court has an appellate role in respect of compensation awarded at the magistrates’ court, and I would be grateful if the Minister could help the Committee on this. I am even more in doubt as to whether the Court of Appeal would have a role in considering an award made at the Crown Court. Will my noble friend give some thought to this, maybe returning at some later stage? If there is no effective appeal, I have two suggestions. One is that we should impose an arbitrary cap—a ceiling—on the amount that could be awarded. That would prevent any obvious injustice. Secondly, and differently, we should consider restricting the claim for compensation to a claim made in civil proceedings, where the procedure is more clearly established.

Amendment 219 is about anonymity. I took the opportunity to look at the substantive Act and was struck by the very large number of examples which are covered by anonymity. I can see no reason of principle, and rather a lot of advantage, in accepting the amendment put forward by the noble Lord to extend anonymity to this category of case.

--- Later in debate ---

[Lord Pannick]

The way that people protect their reputations is that we all have to emphasise the importance of the presumption of innocence. It is quite wrong that people such as the doctor to whom the noble Lord referred are subjected to serious detriment simply because an allegation has been made. That is the basis of English law: you are innocent until you are convicted. That is the principle and I do not accept that the nature of the problem justifies an amendment of this sort, which would lead to all the problems I have sought to identify.

[Viscount Hailsham]

My Lords, notwithstanding the very eloquent speech made by the noble Lord, Lord Pannick, I am in favour of this amendment, subject to one or two points I am going to make. If the noble Lord will forgive me, most of his points are drafting points, which could be dealt with by way of further discussion and a further amendment. I take the point that there are defects in this amendment but in my view, the principle that the noble Lords, Lord Paddick and Lord Campbell-Savours, are aiming at is correct and the arguments that have been advanced by the noble Lord, Lord Pannick, are not correct.

I have two reservations. First, I note that one of the principal mischiefs that this amendment should capture is not dealt with at all: communication by police officers to the press, often for money. I know perfectly well that that is covered by existing legislation and I have no doubt that communication by a police officer giving private information regarding accusations is contrary to the disciplinary code, but if we are moving an amendment of this kind, we should seek to catch the very serious mischief of police officers giving private information to the press.

[Lord Marks of Henley-on-Thames]

My Lords, is the noble Viscount, Lord Hailsham, saying that the practice of police officers giving information to the press after a person is accused by them of an offence is not covered by the amendment as drawn? I should have thought it was.

[Viscount Hailsham]

I really do not think so because it is a question of publication. What is meant by “publication”? It is, I think, different from communication. I think “communication” is a private communication—made, for example, by a police officer to a journalist—and “publication” is a more overt act which happens via the press, the television or whatever. I think they are different. Perhaps that matter could be considered by the noble Lord, Lord Paddick.

The second point concerns gossip. The noble Lord, Lord Pannick, is quite right about this. There will be gossip. Among the great mischiefs are social media and foreign communications, where there is an awful lot of identification. That is a form of gossip that is simply not touched by this amendment and probably cannot be. That is a defect, which I acknowledge even though I support the broad thrust of the amendment.

On the broad thrust, I find the arguments advanced by the noble Lords, Lord Campbell-Savours and Lord Paddick, very persuasive. Harvey Proctor was an old colleague of mine in the House of Commons. We all know that he lost his job and his home, and his reputation has been irreparably damaged by what happened. The publicity regarding Sir Edward Heath is simply absurd but it will taint his long-term reputation. I was PPS to Lord Brittan when he was Chief Secretary to the Treasury. His last days were darkened by the allegations against him, which were wholly groundless. There is therefore a serious mischief that the Committee should seek to address.

The noble Lord, Lord Pannick, has made some important points here but, if he will forgive my saying so, he seems to ignore the principle of proportionality, which should come into play. If we are right in supposing that this is a very serious mischief, we should be cautious about allowing drafting points to stand in the way of confronting it. The question of witnesses coming forward is a proper point. There is no doubt that on occasion, publicity enables witnesses to come forward; that is absolutely true. Surely, though, the proviso in the amendment that would enable the police to go to a judge for the authority to disclose the fact of the accusation addresses that point. Maybe it could be improved upon but the concept of allowing the prohibition to be lifted by a judge is surely a sensible one.

The point the noble Lord makes about the accused person being prohibited from receiving exoneration is a perfectly good one and has substance, but actually it is a drafting point and it would take the noble Lord and myself but a few moments to add the necessary words to the amendment to cover it. I ask the Committee to stand back, look at the extent of the mischief and ask itself whether the drafting objections that have been put forward are sufficiently weighty to stand in the way of our doing justice.

[Baroness Brinton (LD)]

My Lords, many speakers with much more experience than me might wonder why someone who has amendments later in today’s Committee on the rights of and support for victims might wish to speak in support of this amendment. I have experience of cases involving two teachers and very contrasting approaches by the police, both pre-charge and post-charge. The first involved a head teacher who happened to live in the area of his school. A pupil had made a very serious allegation and there was much publicity. Not only did the head teacher and his family have to leave the village but he became seriously ill; in fact he died within two years of the incident going public. It quickly became apparent that this was a fallacious allegation by the pupil, and the police dropped the case. The problem is people. The matter had been all over the local press and radio, and this man’s career was utterly traduced. There is no doubt that it led to the downfall in his health and his subsequent death.

The other case is that of a friend of mine who was abused at his boarding school aged about eight years old. After some decades he finally managed to pluck up the courage to talk to the police, and then the police guidelines were followed. Until after charging there was no advertising at all about the case. At that moment two other pupils from other decades came forward, thus supporting and helping the police and the CPS when they brought their case. Importantly for the initial complainant, they went through only one moment when the entire matter was made public. Had it gone public before then, there would have been repeated incidences in the press and very difficult times until it came to trial.

This is about justice. It is absolutely right that there should be justice where a complaint has been made and no charge follows. However, there is also an issue for the victims and the lives they have to lead if false publicity is given and nothing then follows; they also have to live through substantial amounts of publicity. I do not have the knowledge that the noble Viscount, Lord Hailsham, does, but I support the amendment. If it needs redrafting to finesse it, that is absolutely right—provided that there is the chance at an appropriate moment, and it seems to me that charging is that moment.

--- Later in debate ---

I invite the Minister and the department to look at this because it seems odd. A review is ordered by the commission on the basis that it has come to light that there is relevant and admissible evidence that was not available at trial and that may undermine the safety of the conviction. Why should it be that after the appeal and any retrial are over, and any possible risk of damage from publication has passed, the statement of reasons should not be available in full to enable the public to understand what led to the Court of Appeal’s reconsidering the conviction in the first place? I beg to move.

[Viscount Hailsham]

My Lords, I will be very brief. I find myself in agreement with much that has been said this evening by the noble Lord, Lord Marks, but on this occasion I must state a thorough disagreement. I speak as somebody who has been at the criminal Bar, off and on, for 40 years.

Section 41 of the Act imposes substantial restrictions on the ability of defence counsel to adduce evidence of previous sexual conduct, or to start on a process of cross-examination as to that. I am sure the noble Lord has reminded himself of the terms of the restrictions in Section 41, which are set out conveniently in Archbold. I have taken the liberty of bringing a photocopy of that to this Committee. The restrictions are considerable, but in my opinion—based on a long period at the Bar—there are a very limited number of circumstances when it is necessary, to secure justice, that the defence counsel brings forward instances from the complainant’s past sexual life and has the right to ask questions about that. As it is set about by the restrictions of the judge’s discretion—which is set out in statute—I see no reason to depart from the existing legislation.

I am sure the noble Lord has consulted Archbold, Blackstone’s and Cross on Evidence. I would urge your Lordships in this Committee who have any doubt about this matter to look at those authoritative textbooks, where they will find satisfactory examples of instances when the courts have allowed such evidence and cross-examination.

The noble Lord is effectively calling for a review and it is very difficult, as a matter of principle, to stand against a review. I am sure it does not have to be in legislation. But it is calling for a review, and if enough of your Lordships’ Committee want one, so be it. However, in my view, the existing legislation is right and I very much hope there is no departure from it.

Policing and Crime Bill

Viscount Hailsham Excerpts

Committee: 3rd sitting (Hansard - part one): House of Lords
Wednesday 2nd November 2016 Lords Chamber

[Lord Marlesford (Con)]

My Lords, Amendment 181 seeks to right, or at least to mitigate, what I see as a wrong. In recent months, we have on many days heard, read or seen reports of individuals being investigated for crimes, particularly sex crimes. There is huge publicity, especially when one of those persons is already a public figure, which must be agony for those concerned.

Sometimes the investigation leads to prosecution and conviction, and then any sympathy one might have had is likely to evaporate or at least diminish. But sometimes it leads to an announcement by the police that there will be no prosecution, and that may be after many months. The phrase used to explain the decision is “insufficient evidence”. That is a most tendentious phrase. It implies “no smoke without fire” and is rather similar to the old Scottish “not proven” verdict.

The decision to investigate allegations must always be made by the police, but sometimes investigations come to nothing. There can then be a long period, perhaps a very long period, of waiting, and then there is the announcement of “insufficient evidence”. The essence of our system of justice is that criminal cases are tried on the facts, with a jury, with a verdict either of guilty or not guilty. That is how it should be. It is not a matter of mere semantics to object to the phrase which I have quoted. That is why I seek to change the wording in circumstances where the decision is made that there is not the evidence to prosecute from “insufficient evidence” to the much more neutral phrase “lack of evidence”. I beg to move.

[Viscount Hailsham (Con)]

My Lords, I support what my noble friend Lord Marlesford has said. He has identified something that has gone seriously wrong in recent years. The phrase “insufficient evidence” suggests the existence of some evidence. In some instances that will, of course, be right, but in other cases it will not be right—for example, in recent cases which will, doubtless, be in your Lordships’ minds. My noble friend has put forward a phrase which ought to be acceptable to the Government, but if it is not—and I am no wordsmith—perhaps I might suggest some alternatives. It would be proper to say, for example, “wrong to commence criminal proceedings” or “criminal proceedings are not justified”. Other phrases may occur to your Lordships.

What we must not do is to allow the police to come forward with a reason which implies the existence of a fire unsupported by sufficient smoke. That is not a fair state of affairs. My noble friend on the Front Bench may say that this is not a matter for statute. If the Committee is of that view, then advice could be given by ACPO to its members, but I think my noble friend has identified a real point which I hope your Lordships will support, by argument and debate.

[Lord Dear (CB)]

My Lords, I support what both noble Lords have said, the noble Lord, Lord Marlesford, in particular. I am sure I am right in saying that there is a growing sense of disquiet throughout society, which has swung away from the rampant interest that one saw in recent years in pursuing sex offenders, in particular—the Jimmy Savile case comes to mind immediately—towards beginning to say, “Wait a minute, it has gone too far”. I believe that it has gone too far. We live in a world where reputations can be traduced almost within seconds, given the spread of social media—I think the phrase now used is “going viral”. That can happen and, worldwide, a reputation is in tatters in a way that was not at risk of happening before.

One has only to look at Members of this House, never mind anyone outside—and outside is in many ways more important than our own membership of your Lordships’ House. Lord Bramall comes to mind. The son of the noble and right reverend Lord, Lord Carey, has recently been in the newspapers for reasons I found totally disquieting. So have Sir Cliff Richard, Lord Brittan, Sir Edward Heath and Bishop Bell, who has been the subject of many of our debates recently. I will not take up your Lordships’ time except to say that I support what is being said. Whether we should do it by advice, as has recently been said, I do not know, but the Government should take note of this growing tide of disquiet at what is going on. I hesitate to say, and I am sad to say, that the police are front runners in causing this situation. Something should be done and this amendment is a step in that direction. I support it.

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[Baroness Hamwee]

My Lords, I support the amendment. From the point of view of the person detained the detention starts at the point described by my noble friend Lady Walmsley. It is not a question of that being some sort of limbo; that must be how it feels. If a person is on the way to a place of safety, they are being detained, held and controlled as much as they would be when they reached their destination.

[Viscount Hailsham]

My Lords, I have great sympathy with the points just made. The clock should start ticking when a person is taken into custody and not when he or she arrives at the place of safety.

[Baroness Chisholm of Owlpen]

My Lords, the amendment would provide for the permitted period of detention of a person detained under Section 135 of the Mental Health Act 1983 to commence at the point at which they were removed to, rather than the point at which they arrived at, a place of safety.

The Government wholeheartedly support the aim of minimising the period during which a person is detained under either Section 135 or Section 136 of the 1983 Act. That is why Clause 80 reduces the maximum detention period from 72 hours to 24 hours.

I also agree that every effort should be made to minimise the time taken to remove and transport a detained person to a place of safety. However, I put it to the noble Baroness that securing that outcome cannot best be achieved through legislation. Indeed, the amendment could well have unintended consequences which were detrimental to the best interest of detained persons.

I fear that the practical effect of the amendment would be to penalise those in need of care and the professionals assessing them in circumstances where the detained person needed to be removed from an isolated location, or if it was difficult to remove that person. For example, if someone needs to be removed from a place that is isolated or difficult to access, it may take some time for professionals to be able to get that person to a place of safety. We do not want the police or mental health practitioners to have one eye on the clock in such circumstances.

There is a balance to be struck between taking positive action to keep periods of detention as short as is reasonably possible and giving mental health professionals sufficient time for the necessary arrangements to be made for mental health assessments to be conducted during the 24-hour window provided for in the Bill. We believe that the combination of reducing, by two-thirds, the period of detention and starting the detention clock only when the detained person arrives at the place of safety—which is, incidentally, how the time limits work now—achieves that balance.

In practice, the vast majority of detained persons will be assessed well within 24 hours of their removal, but the legislation needs to allow not just for the generality of cases, where a person can be taken quickly to a place of safety, but also for that small minority of exceptional cases where this may not be possible. I hope that, on reflection, the noble Baroness is persuaded that the approach taken in the Bill is in the best interests of those suffering a mental health crisis and in need of immediate care. I accordingly invite her to withdraw her amendment.

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In a civilised society, this situation requires not only data collection and decisions at local level but a national statement from the Government about how we should treat mentally sick people. This should not require the use of firearms. I beg to move.

[Viscount Hailsham]

My Lords, I hope the Committee does not accept this amendment. Of course, I have every sympathy with the generality of the points made by the noble Baroness, but I hope she will forgive me if I observe that many of the arguments that she has advanced are advanced in general against the use of Tasers, not with particular regard to the use on psychiatric wards. Your Lordships need to keep in mind that some people held on psychiatric wards can be prone to extreme violence. I am not prepared to say that there are no circumstances in which a Taser might not be appropriate in self-defence of the people with responsibility for the persons on the ward or in defence of third parties. That is an extreme position to take and I ask the Committee not to take it.

Furthermore, if the Committee was to accept this amendment it would create an offence on the part of the officer or nurse who used a Taser, who would be guilty of an assault, whereas the circumstances that arose in any ordinary context would justify the use. That strikes me as a very rum thing to do indeed. I hope that we will rely on the ordinary law, which is that a Taser should be used only in wholly exceptional circumstances in appropriate self-defence or in defence of a third party, and we should not try to prohibit its use in very specific circumstances of the kind identified by the noble Baroness.

[Lord Dear]

My Lords, I echo the words that we have just heard. I have considerable sympathy with the emotions and reasoning behind the amendment of the noble Baroness, Lady Walmsley. I make no comment about staffing in psychiatric wards—I have no knowledge of that—but as I speak against this amendment, we should remember that the Taser was introduced as an intermediate stage. It is intermediate between the use of batons, pepper sprays, CS gas and so on the one hand and firearms on the other. A Taser is not a firearm. It is something akin to it—it looks rather like one—but it is not a firearm within the definition of the Act. It does a different thing altogether. There is a violent interaction; of that, there can be no doubt. It brings immediate incapacity and some discomfort when it is fired but, as is sometimes said, in fact it knocks down the individual completely. That has to be the object of the exercise.

Perhaps I can give the Committee a circumstance which has already been alluded to. On a psychiatric ward a patient, for whatever reason, has become exceedingly violent and probably caused serious injury. They may even have caused death. The police are called; what are they going to do? If this amendment is passed into law, the police cannot use a Taser. They will use either the original, which is the pepper spray and so on, or a firearm. We need to remember that the use of a firearm in those extreme circumstances is justified in law, because there is a threat to life. By taking the Taser out we will in effect open the door, in extremis, to somebody being shot with a real lethal barrelled weapon.

I am all for looking at practice directions and reviewing the use of Tasers. Mission creep has been mentioned and perhaps there is mission creep—I do not know that and have not looked at the figures. However, to have something as extreme and prescriptive as this amendment within statute will certainly expose patients in psychiatric wards to the risk of death rather than anything else. In speaking against this, I am all for looking closely at the use of Tasers and for counselling officers using or thinking of using them to exercise extreme caution, but I would not go so far as the amendment stands.

Independent Inquiry into Child Sexual Abuse

Viscount Hailsham Excerpts

Monday 17th October 2016 Lords Chamber

[Baroness Williams of Trafford]

My Lords, the terms of reference were drawn up by the chair in consultation with the Home Secretary. The chair has made a statement today expressing her satisfaction with the terms of reference. As regards Judge Goddard, I understand that no concerns were raised formally and that my right honourable friend the Home Secretary had both a letter from Judge Goddard and what was presented to the Home Affairs Select Committee. Pausing for reflection is a matter for the independent inquiry. It is for the inquiry to decide whether it wishes to do that; it is not for us to tell it what to do.

[Viscount Hailsham (Con)]

My Lords, I suggest to my noble friend that the purpose and scope of the inquiry is hopelessly flawed and that it would be better now to scrap it entirely rather than waste any more money on it. If that is wholly impossible, can we have a much tighter remit as to procedure, purpose and timescale? That needs to be given immediate thought.

[Baroness Williams of Trafford]

My Lords, judging by today’s statement by the chair, I do not think that there is any intention of scrapping the inquiry. As I said earlier, an internal review of the inquiry is going on and an interim report is due out before the end of the financial year. I have outlined some of the things that the inquiry has achieved to date. But I must reiterate that it is independent and therefore we cannot dictate what it should do.

Migrants in France: UK Contribution

Viscount Hailsham Excerpts

Wednesday 12th October 2016 Lords Chamber

[Baroness Williams of Trafford]

On the latter point, yes, I am confident. I also join the noble Lord in paying tribute to the volunteers who have given their time to help in a dire situation in Calais. I am sure we all pay tribute to them.

[Viscount Hailsham (Con)]

My Lords, I hope my noble friend will say nothing to the French authorities to delay the clearance of the camps. The attacks on British subjects who are using the roads nearby are intolerable.

[Baroness Williams of Trafford]

My noble friend makes a valid point about these camps not being a suitable place for anybody to be. Therefore the renewed effort by the British Government and the French authorities to get people away from the camps, and either back to their countries or to reception centres where they will be safe and able to proceed with asylum claims or access other areas of support that they might need, is definitely the right approach.

Orgreave: Inquiry

Viscount Hailsham Excerpts

Wednesday 13th July 2016 Lords Chamber

[Lord Keen of Elie]

My Lords, that will be a matter for the new Home Secretary.

[Viscount Hailsham (Con)]

My Lords, may I reinforce the caution shown by my noble and learned friend? While it may be the case that individual police officers were guilty of misconduct or overreaction, the primary responsibility for what happened rests on the leaders of the mining community, who brought very large numbers of people to the site and were prepared to use force and threats of force in order to implement policies that were as much political as industrial. Had they succeeded, that would have subverted the principles of democratic government.

[Lord Keen of Elie]

I think the factual circumstances of the incident at Orgreave are well known, and I would not seek to elaborate upon them.