Police, Crime, Sentencing and Courts Bill (Seventeenth sitting)
Sarah Champion ExcerptsTuesday 22nd June 2021
(4 years, 7 months ago)
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The Parliamentary Under-Secretary of State for the Home Department (Victoria Atkins)
It is a pleasure to serve under your chairmanship, Sir Charles, as always.
I am grateful to the right hon. and learned Member for Camberwell and Peckham (Ms Harman) for tabling her amendment. I know it will not be pressed formally, but I put on the record my thanks to her for bringing the issue before the House and, indeed, to the hon. Member for Stockton North for giving us the opportunity to debate this important issue in Committee. The Government are absolutely committed to tackling all forms of abuse against women and girls, including sexual harassment. No one should feel unsafe while going about their daily life, and it is completely unacceptable for anyone to make a woman or girl feel objectified or scared.
Following tragic events earlier this year, my right hon. Friend the Home Secretary reopened the first ever public call for evidence for the new tackling violence against women and girls strategy, to capture the many stories that women and girls shared with their friends and their family and on social media. We want to capture those stories as part of our work to shape the new strategy that is coming forward later this year. More than 160,000 responses were received in just two weeks, bringing the total of public responses to more than 180,000—an extraordinary figure for a Government consultation. It says so much about the determination of women and girls to stop those sorts of behaviours.
We are equally determined to respond to the sharing of those experiences. The new strategy will include work to tackle sexual harassment and to recognise the disproportionate impact it has on women and girls.
Sarah Champion (Rotherham) (Lab)
I thank the Minister for giving way—we are so intuitive now that we do not need to ask to intervene on each other.
This sort of behaviour starts at a very young age, which is why the Government were right to accept my amendment to the Bill that became the Children and Social Work Act 2017, to make relationships education for all primary school children mandatory. That should have started last September; we are now told it will start this September. Will she comment about that early intervention and the importance of it?
Victoria Atkins
I am extremely grateful to the hon. Lady for her previous work and for making this important point. I want to give the Committee an impression of the work that we are undertaking as part of the strategy. Legislation is of course an option, but we need to do so much more. We need boys and young men to understand that some of the things that they might have seen on the internet are not real life and not appropriate ways to behave towards women and girls in the street, the home or the school, as we have seen in the Everyone’s Invited work. Education is critical and, I promise her, flows throughout our work on the strategy.
I wish to correct some impressions that might exist. While there is not an offence of street harassment—or, indeed, of sexual harassment—a number of existing laws make harassment illegal, including where such behaviour occurs in a public place. That can include, depending on the circumstances of the case, offences under the Protection from Harassment Act 1997, the Public Order Act 1986 and the Sexual Offences Act 2003.
However—this is a big “however”—I assure hon. Members that we are looking closely at the existing legislation on street harassment and we are committed to ensuring that the law is fit for purpose. We remain very much in listening mode on the issue. We will continue to examine the case for a bespoke offence and will listen closely to the debate as it develops through this House and the other place.
It is important to stress that a law is of limited use unless people know it is there and have the confidence to make a report in accordance with it. Equally—this relates to the point made by the hon. Member for Rotherham about education—it is important that police officers and law enforcement know how to respond properly to such allegations.
Alex Cunningham
I beg to move, That the clause be read a Second time.
The Opposition think that this excellent new clause makes up for the missed opportunity in the Bill. I thank my hon. Friend the Member for Oldham East and Saddleworth (Debbie Abrahams) and the hon. Member for Thurrock (Jackie Doyle-Price), who are the co-chairs of the all-part parliamentary group on women in the penal system. I also thank the Howard League, which acts as the secretariat to the APPG, for its continued energetic work on this issue.
Under the Bail Act 1976, the courts can remand an adult to prison for their own protection, or a child for their own welfare, without being convicted or sentenced, and when the criminal charge they face is unlikely to—or in some cases cannot—result in a prison sentence. The new clause would repeal the power of the criminal courts to remand a defendant into custody for their own protection—or in the case of a child, for their own welfare—pending trial or sentence. Last year, the Howard League published a briefing from the APPG that looked at those provisions and their use. The briefing concludes:
“The case for abolishing the power of the courts to remand for ‘own protection’ or ‘own welfare’ is overwhelming. The use of prison to secure protection and welfare is wrong in principle and ineffective, even damaging, in practice.”
It goes on to say:
“Repealing the provisions in their entirety would be in-keeping with the direction of other recent and proposed reforms. In particular it is in line with, and is a necessary and urgently required extension of, the reforms to the use of police cells as a ‘place of safety’ under the Policing and Crime Act 2017.”
Professor Sir Simon Wessely’s 2018 review “Modernising the Mental Health Act” recommended the removal of the power of the courts to remand defendants for their own protection and own welfare on mental health grounds. The Ministry of Justice has already indicated that it will act on that recommendation. The Government’s sentencing White Paper suggested there would be forthcoming reforms to remand for own protection but, disappointingly, that was not included in the Bill. On page 58 of the White Paper, the Government notes:
“The Independent Review of the Mental Health Act highlighted that there are still cases where sentencers appear to make decisions that prison is the safest option for some people who are mentally unwell, under current legislation in the Bail Act 1976 or the Mental Health Act 1983.”
It goes on to say:
“Prisons should be places where offenders are punished and rehabilitated, not a holding pen for people whose primary issue is related to mental health.”
The White Paper mentions a project by Her Majesty's Prison and Probation Service on these cases. Could the Minister provide an update on the work in that area? In the Lord Chancellor’s letter responding to the APPG’s report, he said,
“we are determined to ensure that remand to prison is not considered as an option when seeking a place of safety for a person in crisis. However, it is vital that the operational mechanisms are in place before any legislative reforms are made in order to ensure that the system can work smoothly and effectively to deliver this objective.”
Could the Minister please share an update on the operational mechanisms that the Lord Chancellor refers to? Are they in place yet? How much longer should we expect to wait for them to be so?
The provisions in the Bail Act are already out of step with the aims of our justice system, but the implementation of the proposals in the Bill will make them look even more outdated. Since there will now be a requirement to consider welfare before remanding a child, as we know how damaging even short stints in custody are for children, how does it make sense to keep a provision on the statute book to put a child into custody to protect their welfare? The ability to remand women and children for their own protection is, as Dr Laura Janes of the Howard League put it in one of our evidence sessions, “rather Dickensian”. The Opposition agree that this power in the Bail Act is completely outdated, and that it has no place in a modern justice system. We urge the Government to support the new clause so that we can do away with it.
Sarah Champion
It is always a pleasure to serve under your chairmanship, Sir Charles. I am fully supportive of new clause 3, because I think it addresses a rather patriarchal approach that is going on and needs flushing out. The all-party parliamentary group on women in the penal system recently released its third briefing report, “Arresting the entry of women into the criminal justice system”, and its key finding was that 40% of women arrested resulted in no further action. That figure is even higher for women who are arrested for alleged violence.
That shows to me that women are being arrested and put into custody disproportionately, without the necessary due process in terms of what the outcome is likely to be. This creates a drain on police resources and, to be quite honest, is a waste of time, as arrest is not an appropriate response to women showing challenging behaviour. We need a more nuanced approach. Many officers arrested women for fear of criticism from more senior officers if they did not, and black women are two and a half times more likely to be arrested than white women, which raises concerns. Officers need to realise that turning up in a uniform can actually make a situation much more tense, and many women are arrested due to their response to the police turning up, not necessarily because of what the police were called in for. Frances Crook of the Howard League put it very well when she said that these women are annoying, but not necessarily dangerous.
I am interested to hear the Minister’s thoughts on Lancashire police, who have started a pilot through which they bring independent domestic violence advisers to the scene where domestic altercations are going on. Officers are reporting that they have found that incredibly useful in de-escalating the situation, rather than just going straight to charging or bringing the woman in for their own protection. The new clause raises the points that first, there is a problem with the system, and secondly, more creative approaches can be used, so I am very interested to hear the Minister’s thoughts on it.
The Parliamentary Under-Secretary of State for the Home Department (Chris Philp)
As always, it is a pleasure to serve under your chairmanship, Sir Charles. New clause 3 seeks to remove the provision in the Bail Act 1976 for a defendant to be refused bail where the court feels it is necessary for their protection—or, in the case of children, their own welfare—that they are remanded in custody. It is extremely important to make clear to the Committee that this provision is used very rarely. It is considered to be a last resort, and it is only used when there are no alternatives, so we should be in no doubt that this is an unusual provision to use.
Sarah Champion
I fully support new clause 4. It links very tightly to my new clause 20, which I would like to speak to. New clause 20 would mean that once a witness was determined to be eligible for special measures, they would be informed of all provisions and able to decide which option suited them best, rather than the onus being on the court to decide which ones they were allowed. Special measures are an absolute lifeline for many victims giving evidence in court against their abuser. Navigating the criminal justice system can be incredibly challenging, and the idea of giving evidence as a witness against your own perpetrator is extremely distressing. Cross-examination causes re-traumatisation for victims and special measures are vital for reducing the impact on their mental wellbeing. Special measures include screening the witnesses from the accused, giving evidence by a live link and in private, and video- recorded evidence. Currently, victims of child sexual abuse are eligible for special measures in court when giving evidence as a witness. However, delivery of the provisions remains inconsistent and victims often have trouble accessing the measures to which they are entitled.
The onus is currently on the court to offer the provisions to the victim if it believes it will
“improve the quality of evidence”
by witnesses—so is not about the survivor’s mental wellbeing and abilities. An APPG on adult survivors of childhood sexual abuse survey found that 44% of victims were not offered the opportunity to give evidence remotely or behind a screen.
This new clause would amend the Youth Justice and Criminal Evidence Act to ensure that once a witness was determined as eligible for special measures by the court, they would be informed of all options and could decide which measure or measures suited them best. It is worth saying that some survivors I work with actually want to be in court and face their abuser—but it is up to them to make that choice.
This amendment will provide what is best for the witness’s wellbeing, rather than if the judge thinks it will improve the quality of evidence. There was support for this proposal in the Bill Committee’s evidence sessions. Phil Bowen, Director of the Centre for Justice Innovation, said:
“Yes, I think a presumption would be useful, but I think it also requires attention to implementation and delivery issues. Special measures should already be used in specialist domestic abuse courts across our magistrates court estate and, in many cases, domestic abuse victims are without access to those measures, for want of anyone who asked.”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 18 May 2021; c. 43.]
Adrian Crossley, Head of the Criminal Justice Policy Unit at the Centre for Social Justice, said of special measures:
“I think it makes a massive difference to the view of the complainant and, unfortunately, it would also make a massive difference to the view of some defendants, who may face the reality of the evidence against them earlier. It may encourage pleas that should have happened earlier.”
“Sometimes the implementation of special measures and, certainly, the pragmatics of what happens in court are not there and the stress that that puts witnesses through is absolutely huge.”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 18 May 2021; c. 46.]
As we have seen too vividly with the rape review findings, lack of support for witnesses and victims in court proceedings has a genuine impact on the justice process. More than a quarter of child sexual abuse cases did not proceed through the criminal justice system last year because the victim and survivor did not support further action. One of the main reasons was that the victim worried they would find the legal process too upsetting.
The Minister may say that we should keep the law so that it is the quality of evidence that remains, because that matters the most. I say to the Government that it is obvious that when we prioritise the wellbeing of victims and survivors—the people giving the evidence—the conviction is more likely to be secured because they feel more able to speak. If the victim assumes that they will be re-traumatised in the court proceedings, why on earth would they even try to secure justice? If that is the assumption, more offenders will walk free.
Dame Vera Baird, the Victims’ Commissioner, also agreed with this proposal. In her view, the problem begins
“with the fact that the needs assessment is not done clearly by a single agency.”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 20 May 2021; c. 113.]
It needs to be carried out as part of the witness care unit, rather than across the Crown Prosecution Service and police, as it currently does. Dame Vera Baird also said that the measures that may best suit the victim are not always available. Special measures are not consistently available across the country.
What will the Minister do to ensure that resources and funding are sufficient to support victims giving evidence? Some witnesses who gave evidence have claimed that special measures should remain available at the discretion of the judge. The Minister may use that argument in the Government’s response to my new clause. However, we know that the current system is letting victims down, and something needs to be done so that it is legally required that they have these options available to them. The majority of court proceedings have taken place via a live link since the pandemic began. What reason is there to refuse the same provision to vulnerable witnesses? Let us be frank: the court is not always functioning with the victim’s best interests at the centre of its decisions. This change would grant vulnerable witnesses much more autonomy over their experience in court, rather than the courts relying on who and how they are able to give evidence—the same courts that have let so many down.
If it were better for special measures to be left to the flexibility of the court rules, we would not have a situation where victims wait years to give evidence, and often then face their abuser in court. Additionally, under this new clause, the court would still be included in the decisions. It would still have to ensure that the measures or measures provided
“do not inhibit the evidence of the witnesses being effectively tested by a party to the proceedings.”
As the Victims’ Commissioner said, it should be the default position that victims, if they choose, can pre-record their video evidence weeks, months or years before the trial takes place. Not only would that be less traumatic for them, but it means the recollections are more current and therefore more reliable.
Cross-examination can also take place on video under section 28 of the Youth Justice and Criminal Evidence Act. This is particularly useful to reduce the huge backlog that the courts currently face, and these measures already exist. We just need to make sure that victims can access them as they should. The Government need to ensure that implementation is effective, and that the courts are fully resourced for it. More funding must be given to courts to provide places for vulnerable witnesses to give evidence securely, and ISVAs must also be available and dramatically expanded, so I am glad that the Minister has said that as part of the review she will actively look to employ more ISVAs.
I hope the Government listen to this argument and address the issue urgently, so that no more victims have to suffer the traumatising process of giving evidence without access to special measures.
Chris Philp
I am grateful to the shadow Minister, the hon. Member for Stockton North, and the hon. Member for Rotherham for raising this important issue. Clearly, all hon. Members from across the House would want victims of these terrible crimes to be supported at what are often traumatic court hearings, and the Government have certainly been working hard on it.
Reference was made to the rape review published last week. As the hon. Member for Rotherham suggested, it contains a range of measures designed to help support victims of these terrible crimes, not least a provision for more ISVAs, as she said in her remarks. It also asks the police to take a better, more proactive, faster, more comprehensive approach to the investigation of rape. No victim is to be left without their phone for 24 hours; digital material will be requested only where strictly necessary and proportionate to the line of inquiry; and there will be better joint working between the police and the CPS and so on. So numerous measures were announced last week, all designed to help improve the situation in the area that we are discussing. In all frankness, it certainly does need to be improved.
Specifically, the clauses mention pre-recorded evidence permitted under section 28, as we have heard. It is worth saying that for vulnerable witnesses we have already fully rolled out the availability of section 28 pre-recorded evidence; that was completed in November last year. Vulnerable witnesses include all child witnesses, and also witnesses whose quality of evidence is likely to be affected because of a mental health disorder or some form of physical disability. The measure has already been implemented in every single Crown court across the country.
On intimidated witnesses, as the shadow Minister said we are already piloting the use of section 28 evidence for intimidated witnesses in three early adopter Crown courts—Leeds, Kingston upon Thames and Liverpool. That means that victims of those crimes have access to this measure and are able to pre-record their evidence, cross-examination and possibly re-examination via video early in the process, outside of the courtroom environment. That, for reasons we have discussed, is often of significant benefit to the victim.
Sarah Champion
I am very heartened by what the Minister is saying. One problem that keeps getting raised with me is that if victims choose to go down the live link route there must be authorised sites, but there are so few in the country, and they have backlogs and so on. There is a resourcing issue. However, it is my understanding that a lot more live evidence has been given by video link during the pandemic. Surely we have had a year of piloting this, as well as the specific pilots that the Minister is doing, so is he now looking at rolling back the opportunity to give evidence via live link, in order to wait for the pilot?
Chris Philp
Giving evidence by live link in proceedings is obviously different from section 28, which applies to pre-recorded evidence and cross-examination. In answer to the question about live links, no, there is no intention to try to influence the judiciary to use live video links less than they have been doing so. Generally speaking, it has worked very successfully. Each week there are 20,000 court sessions across all jurisdictions—criminal, civil, family and tribunals—using video technology, and there is no desire on the part of the Government to see that reduced, should the judge and other participants want to continue with it. That option is available. All Crown court rooms have the cloud video platform installed in them, which will remain the case.
A new system is coming in that will improve things further, but there will be no removal of remote capability from Crown court rooms. They will have the ability to take live evidence by video link. Every cloud has a silver lining, and one of the silver linings has been the fact that every Crown court room now has that capability.
Sarah Champion
My new clause shifts the choice to the victim rather than the judge. What the Minister is saying is great, but will he support my new clause, so that the victim is able to choose whether to give evidence by live link?
Chris Philp
Having spoken to new clause 4, let me turn now to new clause 20. As the hon. Lady says, it moves the discretion away from a judge and makes it the witness’s choice whether the section 28 recording is conducted. We want to encourage as many eligible people as possible to make use of the special measures that are available, and we have taken a number of steps to ensure that objective. For example, the revised victims code, which came into force just a few weeks ago, on 1 April, focuses on victims’ rights and sets out the level of service that victims can expect to receive from criminal justice agencies. The code also enshrines victims’ rights to have their needs assessed by the police or a witness care unit in order to determine whether they are eligible to give evidence using special measures and would benefit from doing so, to help relieve some of the stress involved in giving evidence. We want to ensure that every single eligible witness is identified, and that the matter is actively considered.
Chris Philp
Clearly the victims code, published a few weeks ago, is designed to help victims in many of the ways that the hon. Lady described. I will come on to the specific question of who makes the decision in a moment. In addition to the victims code, however, we are doing more work with important agencies such as the police and the CPS, drafting guidance to share with victim care units and making sure that the understanding of the special measures, such as section 28, is as high as it possibly can be. We are also looking to maximise the use of section 24 and to improve the use of remote link sites—the point that the hon. Member for Rotherham made a moment ago—again to help victims.
On the question of empowerment, which the hon. Member for Garston and Halewood just asked about, there is clearly a balance to strike. Obviously we want to ensure that victims are protected and looked after, and that we minimise the trauma that may follow from reliving the experience. We should also be aware, however, that these are court proceedings, designed to determine guilt or innocence. The consequence of a conviction in such cases is, most likely, a long time in prison—rightly so. We therefore need to ensure that the interests of justice are considered, as well as the interests of the victim, which are also extremely important; they are both important.
Ultimately, the judge decides whether a live link may be used or the other special measures may be activated for someone who is eligible. The reason for that is that it is for a judge to make a determination in an individual case on how that case is managed and conducted, having regard to all the particular facts in the case—the circumstances, the victim and the nature of the victim, the nature of the questioning or cross-examination that might need to take place.
The concern of the Government is that if we simply legislate to remove that judicial discretion, saying that the judge cannot decide and what happens is automatic, it means that the judge will in some sense lose control of how the proceedings are conducted. There may be circumstances in which that undermines the delivery of justice.
We hope that judges listen to our proceedings—I am sure they do—and hear the very strong emphasis that we in this House give to victims. The judges are aware of the victims code and the strengthened rights that it gives victims, and they will keep that at the front of their minds when they make such decisions. I hope that they will make them—they normally make them and I hope will continue to do so—in a way that is sympathetic and sensitive. To wholly extinguish judicial discretion, however, would go a long way.
Sarah Champion
I appreciate the Minister’s giving way. I am not entirely convinced that his civil servants have read my amendment. After proposed new paragraph (b) in subsection (2), the new clause states:
“so far as possible ensure that the measure or measures provided for do not inhibit the evidence of the witness being effectively tested by a party to the proceedings.”
It explicitly gives the ultimate call to the judge. We would be giving the victim the right to have a choice, but if the judge believes that it in any way discredits the evidence that they are able to give, the judge has the right not to allow it.
Chris Philp
The drafting is:
“Provided that a direction under paragraph (b) shall so far as possible ensure that the…measures provided for do not inhibit the evidence”.
As far as I read it, it does not give the judge the power not to make the order; it simply states that they must make the order in such a way as not to inhibit the evidence being given
“so far as possible”.
My understanding of the words on the page is not that the judge has an ultimate veto; they must simply exercise a direction in that way.
Furthermore,
“so far as possible”
is not a high test when it comes to justice being done and ensuring that evidence is given fairly. When we are potentially convicting someone and sending them to prison for a long time, ensuring that justice is done
“so far as possible”,
intuitively, does not feel like the standard is quite high enough.
Sarah Champion
I am happy to work with the Minister to get the wording exactly right, so that it does exactly what I think we both want.
Chris Philp
The Government’s position, in conclusion, is that it is very hard to sit in Parliament and legislate definitively and bindingly—
Chris Philp
Let me finish the sentence—for all the circumstances that may arise in an individual case. Therefore, although we have guidelines, procedures and so on, ultimately, the management of any particular case, including things such as the use of live links and proceedings in the courtroom, are a matter for the very experienced judge who is looking at the case, the defendant and the witnesses in front of him or her, the judge.
That is why, ultimately, judicial discretion is required. However, we agree with the direction of travel. I have already mentioned some of the things that we are doing to push things further. I am certain that judges looking at our proceedings will respond accordingly and will take a positive, constructive and accommodating view where the issues arise. In fact, they already have a duty under section 19 of the Youth Justice and Criminal Evidence Act 1999 to take into account the views of the witnesses in making their decisions. We feel that that strikes the right balance.
Alex Cunningham
I am grateful for that clarification.
I am also heartened by the Minister’s response to new clause 4. I will not take anything away from the Government for the tremendous progress that they have made in this area. However, there have been many pilots and I believe that those have already proved that the system is working. I suspect that if it were not working, he would be looking to do something else, rather than extending the pilot. I hope that we can make some more progress sooner rather than later.
The Minister talked about the various recommendations in the rape review. I do not think that we need to wait for the Government to roll out their actions from the rape review. We could take some action now. I see the new clause as another opportunity to take another small step, but it is a significant step, to protect victims and even to improve the quality of evidence that is given in court. Who knows, that, too, might improve some of those abysmal conviction rates that we suffer as a country—suffered by victims who do not receive justice.
Sarah Champion
Does my hon. Friend agree that the fear of giving evidence as the system stands, prevents any justice from happening? Any movement that the Government can make that is sensitive to the needs of victims and survivors would be hugely beneficial.
Alex Cunningham
That is very much the case. Yesterday, following the statement from the Lord Chancellor, there were various discussions of the statistics around cases. For some people, the case does not get beyond the police investigation; it never reaches the CPS. That is because of some of the issues outlined by my hon. Friend. We believe that it is time to start taking action. I say gently that it is great to have warm words from Ministers, but we actually need to make real progress. I will therefore press the new clause to a Division.
Question put, That the clause be read a Second time.
Alex Cunningham
We now turn our attention to quite a different subject. New clauses 6 to 8 would work as a package to create a new specific offence of pet theft, punishable by a custodial sentence of up to two years. As the Minister is aware, the theft of pets is currently an offence under the Theft Act 1968. However, although the law of theft caters for certain specific offences—for example, bicycles, scrap metals and even wild mushrooms, unbelievably—that is not the case for pets. That matters because the Theft Act does not consider a pet’s intrinsic value as a much-loved member of the family. Instead, it takes into account only its monetary or sale value.
I am sure that, like me, the Minister gets a regular flow of emails from animal lovers and owners who want tougher laws to deal with those who would deprive them of their pets. They value their pets way beyond many things in their lives and even make sacrifices to ensure they get the expensive vet treatment that they need. It seems absurd to us that the theft of a much-loved pet is currently regarded in law as the same as the theft of a mobile phone or a handbag.
Pets are living, sentient beings that come into our lives and become irreplaceable members of our families. I do not mind saying that it broke my heart when my dog, Lady, died. It was the same when KT the cat died. He was called KT after we discovered that we had a male cat, which had previously been named Katie by one of my sons.
We believe that legislation and sentencing must reflect reality, and that is why Labour tabled new clause 6. It would create a specific offence of pet theft that would enable courts to deliver sentences for pet theft offences that properly reflect the attitudes of modern society. I know the Minister will remind us that the Government are looking to reform this area of the law, but that was due to happen last year.
Fewer than 1% of pet thefts lead to charges being brought. Although the Theft Act allows for a minimum custodial sentence of up to seven years’ imprisonment, the evidence shows us that someone found guilty of pet theft is far more likely to be handed a caution than a custodial sentence. That is because the vast majority of cases involving pet theft will be handled by the magistrates courts, rather than the Crown court. That is exactly why we need a change in the law. Creating a specific offence of pet theft, rather than leaving offences to be prosecuted under the Theft Act, would mean that judges are able to sentence acts of pet theft in accordance with the huge emotional damage that the offence causes.
The change is as important as it is timely. As the Minister is aware, the number of pet thefts—dog thefts in particular—has skyrocketed during the pandemic. Five police forces across England and Wales reported more acts of dog theft in the past seven months than during the whole of the previous year. Indeed, the number of dog thefts has been increasing year on year for the best part of the past decade, and we are now at the point where, on average, at least five dogs are stolen in England and Wales each and every day. That is a staggering and horrifying figure. I have heard of pets actually snatched from their owners in the street, as criminals steal them to order.
What is even more worrying is that, while the number of dog thefts increases with each year, the number of court charges relating to dog theft has gone down. In 2015, only 62 court charges were brought. In 2016, that had decreased to 48, and by 2017 the number was only 37. By failing to take decisive action as pet thefts rocket and successful prosecutions fall, the Government are sending a dangerous message to criminals—that they can continue to break the hearts of families up and down the country with complete impunity.
Given that the Government have taken no action, the Opposition feel that we must step in and offer them an opportunity for change with a specific offence of pet theft, punishable with a custodial sentence of up to two years. Again, that would allow judges to hand down sentences that properly reflect the emotional family value of a pet, rather than simply its value as an object. That seems to us a wholly sensible response to the current crisis of pet thefts that we see today. Pets are not simply objects; they are invaluable members of our family, within our homes. They provide emotional comfort, support and happiness to families across the country.
It is not just the Opposition who recognise that. The Minister will be aware that many animal welfare groups support a change in legislation, as do members of his own party and the vast majority of the public. The current system does not work and it is the country’s 12 million households that have pets who are being let down. I hope that the Minister, rather than saying that the Government will sort this issue out some other time, will take decisive action and support the new clauses today.
Sarah Champion
I am extremely grateful to my hon. Friend the Member for Stockton North for tabling these new clauses, because during the pandemic in particular the rate of dog theft has gone through the roof, as the cost of puppies, dogs and all other pets has also skyrocketed.
These animals are worth so much more than their monetary value; they are valued members of our households. And we have seen some very high-profile cases that demonstrate the impact when pets are stolen. The law needs to catch up and I really urge the Minister to take this opportunity to do that.
In March, DogLost—a UK charity that helps victims of dog theft—recorded a 170% increase in the rate of this crime between 2019 and 2020. It is very welcome that in May the Government announced a taskforce that will consider the factors contributing to the rise in dognapping and recommend solutions to tackle the problem, but we do not need just another consultation. What we actually need is action and the Bill provides the perfect opportunity for the Government to take that action.
Campaigners against dog theft have called for pet theft to be made a specific offence and they are right to do so. That crime needs more robust punishment than just being covered by theft of property; treating pets just as “property” does not recognise the emotional attachment that people place on them.
Hywel Williams
Does the hon. Lady recognise, as I do, the value of pets in therapeutic situations, especially when people have a disability and perhaps build a particular relationship with a cat or dog? In that respect, the theft of such an animal is even worse than the theft of just a family pet, as it were.
Sarah Champion
I completely agree. While the hon. Gentleman was talking, I was reminded of my grandma, who had a budgie called Bluey. As a child, I did not realise why, every few years, Bluey changed colour. But for my grandma, if Bluey had been stolen it would have broken her, as Bluey was the one constant in her life. The value of a budgie is—what? I do not know—£20? What we find, though, is that when people are caught for petnapping they only receive a small fine; indeed, sometimes they just receive a suspended sentence. Those punishments do not reflect the emotional worth that the pets have.
According to the Pet Theft Reform campaign, in recent years only 1% of dog thefts have even led to prosecution. Campaigners have called for reform of the current system of pet microchipping, to improve the chances of reuniting stolen animals with their owners.
As we have discussed, it is heartbreaking when a beloved family pet is stolen. Currently, however, it is very difficult to collate definitive statistics on pet theft, which is principally due to, first, the different methods of recording pet theft that are used by different police forces and, secondly, pets not being differentiated under the Theft Act 1968. Pets are more than property and legislation should reflect that.
Siobhan Baillie (Stroud) (Con)
I have campaigned on this incredibly important issue. However, having looked into the details and worked with different campaign groups and the Gloucestershire police force, which is recording these crimes well, I think some of the issues that the hon. Lady has touched on are becoming wider and wider in scope. There is a range of things that we need to fix.
I am inclined to say that the taskforce is the way forward to get to legislation. Does the hon. Lady agree that we must look at all of the issues, rather than just trying to tackle either specific sentencing or specific legislation?
Sarah Champion
I completely agree with the hon. Member. Yes, of course, we need robust data to be able to do that. We are in a chicken-and-egg situation because, as the hon. Member highlights, different police forces record different things, so it is hard to grasp the problem. The thing that I am most mindful of is that the opportunity to make changes to the legislation are slight in Parliament, but the Minister has an opportunity now, so I urge him to grasp it.
Does the Minister agree that the punishment should outweigh the potential rewards for stealing pets? At the moment, people receive tens of thousands of pounds for stealing dogs, but they are not given a sentence if they are convicted. I completely understand the work of the taskforce, but we need a positive response, which campaigners and pet owners have called for. There have been some really disturbing cases, with increasing violence used in dog thefts. That is another reason why I want the Government to send a strong message that that is not acceptable and is punishable.
A dog owner was knocked to the ground and punched in a terrifying attack by two men trying to steal her pet. Allie Knight, 22, was attacked near Mutley Plain, Plymouth, as she walked her pug, Paddy. Mike Jasper was walking his dog Ted—this was awful—a sprocker spaniel, in south London in December after visiting his allotment when he was brutally attacked by two men wearing face masks and Ted was taken. “BBC Breakfast” raised this case, and it highlighted the depth of the loss that someone feels when their pet is taken. A 50-year-old woman was attacked and had her dog stolen while she was out walking in Moira Road in Woodville, Derbyshire. One man pushed her to the floor, and grabbed her two-year-old dachshund called Minnie, while the other held his fist to her face.
Police forces need sufficient resources and training to be able to deal with pet theft in a sensitive manner and highlight resources where owners can turn for support. Blue Cross strongly supported the recent decision of Nottinghamshire police to appoint Chief Inspector Amy Styles-Jones as the first specialist dog-theft lead in the country. Having a dedicated dog-theft specialist in each police force would make a huge difference, and would address the point made by the hon. Member for Stroud about the disparities across the country.
Chris Philp
Once again, I am grateful to the shadow Minister and his colleagues for raising an extremely important issue: criminals seeking to profit from the theft of a pet. Sadly, it is a growing trend. Dog owners do not feel safe or comfortable very often, and it can be heartbreaking when a much-loved family pet is taken. Recognising that, the Lord Chancellor, the Home Secretary and the Secretary of State for Environment, Food and Rural Affairs have recently created a new taskforce to investigate the problem end to end and find solutions—not just in relation to the criminal offence, which we will come on to in a moment but in relation to prevention, reporting, enforcement and prosecution of the offences. It will make clear recommendations on how the problem can be tackled. We have seen in other contexts—for example, there was a problem a few years ago with scrap-metal thefts from church roofs—how an end-to-end approach can have an effect. We should not look simply at one element of the problem but at the whole thing end to end, and that is what the task force is urgently doing, as well as taking evidence from experts. The Minister for Crime and Policing is also involved, to make sure that police investigation is what it should be.
As we have heard, the theft of a pet is currently a criminal offence under the Theft Act 1968, so the question arises of why we need a new offence. The first thing I would say is that the maximum sentence for the new offence proposed by the new clause is only two years, whereas the maximum sentence under the Theft Act is seven years. The new clause, if adopted, would reduce the maximum penalty available for stealing a pet from seven years to two years, which strikes me as incongruous, given the purported objectives of the new clause.
The shadow Minister made some points about whether the emotional value of the pet was recognised and accounted for. I draw his attention, and the Committee’s attention, to the Sentencing Council guidelines on theft, which are used by judges when passing sentence for theft up to the seven-year maximum. Under the guidance, which judges are bound to use, harm includes the emotional distress caused by the theft. The guidance also talks about the value to the person who suffered the loss, regardless of monetary worth, so the emotional distress and the non-monetary value are baked in already, in black and white, in those Sentencing Council guidelines. Indeed, the table specifying the level of harm sets out that emotional damage and harm to the victim cause an escalation in the sentence, over and above what would be the case based simply on monetary value.
Sarah Jones
I imagine that if a vehicle could not accommodate a black box, it would not fall within the remit of the new clause. Perhaps we could work on the guidance accompanying the new clause to fix the issue that the right hon. Gentleman has mentioned. I am grateful to him for doing so.
Sarah Champion
Does my hon. Friend agree, though, that fitting a black box would not inhibit a good driver, and it should not put an additional cost on the hire? The new clause would allow us to capture the data that could prove that people had been acting recklessly after hiring sports cars.
Sarah Jones
My hon. Friend is right, as always. The purpose of the new clause would be of no concern to people who drive safely and competently.
The new clause would also make it a requirement for companies to hand over that black box data to the police should they request it. As Members of the House have communicated to me, this problem is repeatedly raised on the doorstep in some communities and in constituency surgeries, and getting a grip of it would not only make people safer, but push back on the costs picked up by responsible road users who are penalised through their own insurance to cover the risk presented by a minority of reckless road users who drive vehicles without insurance that become involved in crashes.
The Motor Insurers Bureau has shared with me some troubling examples of questionable insurance policies being used by some companies in this rental sector. Agencies agree that costs are passed on to law-abiding road users by those abusers of system. A black box would help to provide an evidence base for determining whether road traffic offences had been committed and, ultimately, for securing prosecutions if necessary. That would protect law-abiding road users from risk and cost to them.
Over the years, I have seen the police and various partnerships deploy several attempts to address the issue, with varying success. The new clause would make a start by using legislation to address reckless driving facilitated by the irresponsible use of hired supercars.
The Chair
With this it will be convenient to discuss the following:
New clause 11—Definition of “issue of consent”—
“(1) Section 42 of the Youth Justice and Criminal Evidence Act 1999 is amended as follows.
(2) For paragraph (b) substitute—
“(b) “issue of consent” means any issue where the complainant in fact consented to the conduct constituting the offence with which the defendant is charged and any issue where the accused reasonably believed that the complainant so consented;””
This new clause re-defines “issue of consent” for the purposes of section 41, including in the definition the defendant’s reasonable belief in consent, and thus removing it as a reason for the inclusion of a complainant’s sexual history or behaviour.
New clause 12—Admission of evidence or questions about complainant’s sexual history—
“(1) The Youth Justice and Criminal Evidence Act 1999 is amended as follows.
(2) After section 43 insert—
“43A In any trial or contested hearing to which section 41 of the Youth Justice and Criminal Evidence Act 1999 applies, if no pre-trial application in accordance with Part 36 of the Criminal Procedure Rules has been made, or if such application has been made and refused in whole or in part, no further application may be made during the course of the trial or before its commencement to call such evidence or ask such question, and no judge may allow such application or admit any such questions or evidence.””
This new clause would have the effect that no section 41 evidence or questions could be admitted by a judge at trial unless there had been an application before trial in accordance with the practice directions; and the amendment would ban applications from being made immediately before or during the trial.
New clause 13—Complainant’s right of representation and appeal on an application to adduce evidence or questions on sexual conduct—
“(1) The Youth Justice and Criminal Evidence Act 1999 is amended as follows.
(2) After section 43 insert—
“43A In any trial to which section 41 applies, where notice is given that there will be an application under Part 36 of the Criminal Procedure Rules for leave to ask questions or to adduce evidence as to any sexual behaviour of the complainant—
(1) The complainant may not be compelled to give evidence at any hearing on the application.
(2) The complainant will be entitled to be served with the application and to be legally represented (with the assistance of legal aid if financially eligible) as “a party” within the meaning of the Criminal Procedure Rules in responding in writing to the application and in presenting their case at any hearing on the application.
(3) If the application succeeds in whole or in part, the complainant will have a right to appeal for a rehearing of the application to the Court of Appeal on notice within 7 days of the judgement being delivered.
(4) On any such appeal, the Court of Appeal will rehear the application in full and may grant or refuse it in whole or in part.
(5) The Secretary of State may, by regulation, set out rules of procedure relating to any hearing or appeal under this section.””
This new clause would give the complainant a right of representation, with legal aid if they are financially eligible, to oppose any application to admit section 41 material about them. This new clause would also give complainants a right of appeal to the Court of Appeal if the application is allowed in whole or in part. The new clause also provides that the complainant is not compellable as witness at the application.
New clause 14—Collection of and reporting to Parliament on data and information relating to proceedings involving rape and sexual assault—
“(1) The Secretary of State shall collect and report to Parliament annually the following data and information—
(a) The time taken in every case of rape or sexual assault for the case to progress from complaint to charge, from charge to pre-trial plea and management hearing; and from then until trial.
(b) The number of applications to ask questions or adduce evidence of any sexual behaviour of the complainant under section 41 of the Youth Justice and Criminal Evidence Act 1999 (“the 1999 Act”) made in the Magistrates and Crown Courts of England and Wales, irrespective of whether a trial was subsequently held.
(c) The number of cases which involved questions on or evidence of any sexual behaviour of the complainant in all rape, sexual abuse and other trials or contested hearings in the Magistrates and Crown courts in England and Wales, irrespective of whether an application was made to admit such questions or evidence in advance of the trial or hearing.
(d) In cases to which section 41 of the 1999 Act applies—
(i) whether Part 36 of the Criminal Procedure Rules was followed in each application and if it was not, how it was not;
(ii) the questions proposed to be asked;
(iii) the evidence proposed to be called;
(iv) whether the prosecution opposed the application and if so the content of their representations;
(v) whether evidence was called to support or oppose the application;
(vi) whether the application was allowed in whole or in part and a copy of the judgement made on the application; and
(vii) any other material which might assist in an assessment of the frequency, basis and nature of applications for the use of such questions or evidence and the likely impact on any parties to any trial and the trial outcome.
(2) The data and information to be collected under subsection (1) shall include—
(a) all the material from any pre-trial application;
(b) the questions in fact asked and the evidence in fact called about any sexual behaviour of the complainant in the trial;
(c) any application at the start or during the course of the trial to vary or alter any judgement given in any earlier application or any further application to admit such questions or evidence;
(d) whether any material not previously authorised was used in the trial;
(e) whether the prosecution objected; and
(f) any ruling made or action taken by the judge on the further conduct of the trial as a consequence of the admission of questions or evidence under section 41 of the 1999 Act.
(3) The data and information to be collected under this section shall be collected from the date of Royal Assent to this Bill.”
This new clause requires the Secretary of State to collect and report to Parliament data and information on trial delay and section 41 matters.
New clause 15—Training for relevant public officials in relation to the conduct of cases of serious sexual offences—
“(1) The Secretary of State shall, on this Act coming into force, publish and implement a strategy to provide training on the investigation of rape and alleged rape complainants, and the admissibility and cross-examination of complainants on their sexual history to—
(a) the Crown Prosecution Service;
(b) Police Forces;
(c) the Judiciary; and
(d) such other public bodies as the Secretary of State considers appropriate.
(2) The Secretary of State shall ensure that any judge who is asked to hear a trial where the accused is charged with rape or any other serious sexual offence has attended and completed a training programme for such trials which has been accredited by the Judicial College.”
This new clause ensures that all criminal justice agencies shall be trained and that no judge can hear a sexual offence trial of any kind unless they have attended the Judicial College serious sexual offence course.
New clause 42—Enhancement of special measures in sexual offences—
“(1) The Youth Justice and Criminal Evidence Act 1999 is amended as follows.
(2) In section 27, after subsection (1), insert—
“(1A) Any interview conducted under this section of a complainant in respect of a sexual offence must be conducted by—
(a) a member of the Bar of England and Wales,
(b) a member of the Faculty of Advocates,
(c) a member of the Bar of Northern Ireland, or
(d) a solicitor advocate.””
New clause 57—Restriction on evidence or questions about mental health counselling or treatment records relating to complainant or witness—
“(1) The Youth Justice and Criminal Evidence Act 1999 is amended as follows.
(2) After section 43 insert—
“43A Restriction on evidence or questions about mental health counselling or treatment records relating to complainant or witness
(1) If at a trial a person is charged with a sexual offence, then, except with the leave of the court—
(a) no evidence may be adduced, and
(b) no question may be asked in cross examination,
by or on behalf of any accused at the trial, about any records made in relation to any mental health counselling or treatment which may have been undertaken by a complainant or witness.
(2) The records made include those made by—
(a) a counsellor,
(b) a therapist,
(c) an Independent Sexual Violence Adviser (ISVA), and
(d) any victim support services.
(3) The court may give leave in relation to any evidence or question only on an application made by or on behalf of a party to the trial, and may not give such leave unless it is satisfied that—
(a) the evidence or question relates to a relevant issue in the case which will include a specific instance (or specific instances) of alleged sexual behaviour on the part of the complainant,
(b) the evidence or question has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice, and
(c) a refusal of leave might have the result of rendering unsafe a conclusion of the jury or (as the case may be) the court on any relevant issue in the case.
(4) For the purposes of making a determination under paragraph (3)(b) the judge shall take into account—
(a) the interests of justice, including the right of the accused to make a full answer and defence;
(b) the need to preserve the integrity of the trial process by removing from the fact-finding process any discriminatory belief or bias;
(c) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury;
(d) the potential threat to the personal dignity and right to privacy of the complainant or witness;
(e) the complainant’s or witness’s right to personal security and to the full protection and benefit of the law;
(f) the provisions of the Victims Code; and
(g) any other factor that the judge considers relevant.
(5) Where this section applies in relation to a trial by virtue of the fact that one or more of a number of persons charged in the proceedings is or are charged with a sexual offence—
(a) it shall cease to apply in relation to the trial if the prosecutor decides not to proceed with the case against that person or those persons in respect of that charge; but
(b) it shall not cease to do so in the event of that person or those persons pleading guilty to, or being convicted of, that charge.
(6) Nothing in this section authorises any evidence to be adduced or any question to be asked which cannot be adduced or asked apart from this section.
(7) In relation to evidence or questions under this Section, if no pre-trial application in accordance with Part 36 of the Criminal Procedure Rules has been made, or if such application has been made and refused in whole or in part, no further application may be made during the course of the trial or before its commencement to call such evidence or ask such question, and no judge may allow such application or admit any such questions or evidence.””
This new clause would restrict evidence or questions about mental health counselling or treatment records relating to complainant or witness unless a defined threshold is met.
New clause 68—Law Commission consideration of the use of complainants’ sexual history in rape trials—
“The Secretary of State must seek advice and information from the Law Commission under section (3)(1)(e) of the Law Commissions Act 1965 with proposals for the reform or amendment of the law relating to the use of complainants’ sexual history in rape trials.”
Sarah Champion
I would like to speak to new clause 57, which would restrict evidence or questions about mental health counselling or treatment records, unless a defined threshold is met. Under current legislation, the police and defence are able to access all the victim’s counselling notes relatively easily. That results in many victims fearing that their counselling notes will be used against them in court proceedings, while some victims are actively discouraged from accessing counselling until after the trial has taken place.
New clause 57 would create a presumption that the disclosure of counselling notes would not be used as evidence, so that only in exceptional circumstances could the victim’s records be accessed. The new clause would add a new section to the Youth Justice and Criminal Evidence Act 1999, so that the judge would have to take into account multiple factors, including the victims’ code, and the potential threat to the person’s dignity and right to privacy of the complainant or witness.
The mental health records would also have to relate to a relevant issue in the case, and the judge would have to ensure that the evidence has significant probative value. That would reassure victims that it would be unlikely that their records would be used, and give them more confidence in working with the police and courts to secure justice.
I recently received an email from a brave woman who used to live in my constituency. She has now moved away from the UK because she did feel emotionally or physically safe in Rotherham, or indeed in England. She left the UK as a direct result of the traumatic court case. She literally moved to the other side of the world. In 2011-12, she reported childhood sexual abuse to South Yorkshire police. In her email to me, she wrote:
“After I completed my video evidence, the officers told me it would complicate the trial if I sought any mental health support, and to wait until it was over. That took 18 months, 18 of the most difficult months, when I was emotionally abused and outcast by my family for reporting the abuse. I had nowhere to turn, needed to see a psychologist for support and I was utterly traumatised. Today, I suffer from post-traumatic stress from that trial, and I feel it is related to being denied my human right of access to mental health support. If the police denied anyone cancer treatment during court proceedings, there would be uproar. We need to see mental health in the same way.”
She goes on to say:
“Despite it not being illegal to see a counsellor, it appears to be more convenient for the police case if one is not seen. When someone in such an immense position of trust indicates it would be better not to see a counsellor, the victim is so vulnerable and so strongly led by the police that I fear it will continue, even if it is off the record. Furthermore, the fear of past or ongoing counselling notes being shared with the courtroom is so overwhelmingly terrifying it is enough to put someone off seeking help, even if they were not directed against it by the police, as I was.”
Minister, this needs systematic change. Receiving counselling or mental health support should not make a victim unreliable as a witness. In 2018, in a debate about the victims’ strategy, the then Solicitor General, now Lord Chancellor and Secretary of State for Justice, the right hon. and learned Member for South Swindon (Robert Buckland), said:
“Where we have suitably qualified…mental health professionals, there should…be no bar to the sort of general counselling help that would be of real value to people who are experiencing some form of trauma.”—[Official Report, 11 October 2018; Vol. 647, c. 374.]
More recently, in response to my written question, the Minister for Crime and Policing, the hon. Member for North West Hampshire (Kit Malthouse), said:
“Victims of crime have a right to be referred to support services and have services and support tailored to their needs. There are no rules that restrict access to therapy in advance of criminal proceedings.”
My constituent was denied mental health support. I received a letter from South Yorkshire police confirming that there is guidance, which the CPS relied on in this case, to deny therapy to vulnerable witnesses in cases where the evidence can be argued as tainted and the prosecution lost. My constituent was refused counselling, but the police then found and shared counselling notes from sessions she had had at university, four years before the court case. She states:
“I was already fearful about how much of that information I’d freely shared in confidence four years earlier would be shared with my abuser and whoever else turned up to court that day.”
Police, Crime, Sentencing and Courts Bill (Sixteenth sitting)
Sarah Champion ExcerptsThursday 17th June 2021
(4 years, 8 months ago)
Public Bill CommitteesRead Full debate Police, Crime, Sentencing and Courts Act 2022 View all Police, Crime, Sentencing and Courts Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 17 June 2021 - (17 Jun 2021)
The Parliamentary Under-Secretary of State for the Home Department (Victoria Atkins)
I was, Mr McCabe—thank you very much. I understand that the Opposition do not oppose clauses 141 to 143, but I will obviously respond to new clause 65, tabled by the hon. Member for Rotherham and signed by more than 30 other Members. I understand the message of how seriously Members across the House take the issue. We are very alive to the ability of sex offenders to manipulate systems, build trust, groom, and use many evil, awful methods in order to commit their crimes.
I am not naive to the risks that the hon. Lady put forward in her very well argued speech about the motivations of sex offenders in changing their name. As she said, there are very strict rules: sex offenders are required to notify the police within three days of changing their name—indeed, failure to do so is a criminal offence punishable by imprisonment for a maximum of five years. I note her concerns, and those of others, about what can be done, if a sex offender does not so notify, to ensure that there are not consequences further down the line.
In fairness, parliamentarians have been having this debate for some time. I have received a great deal of correspondence on this matter, particularly in conjunction with the campaign run by the Safeguarding Alliance. As a result, I have commissioned officials to look into the matter very carefully. I have written to the Master of the Rolls requesting that a judicial working group set up by the Ministry of Justice should consider how the deed poll process can be exploited for criminal ends.
The work of that group includes considering whether amendments to the Enrolment of Deeds (Change of Name) Regulations 1994 are required. I raise that because the regulations for changing name by deed poll are made by the Master of the Rolls, not a Minister, and I must of course respect and honour that; it is not as straightforward as me signing my name and changes happening. The ball has already started rolling with the Master of the Rolls, and indeed the Ministry of Justice, to try to find ways of addressing the concerns that the hon. Lady and many other Members have voiced in recent months.
Sarah Champion (Rotherham) (Lab)
I hope the Minister recognises my concerns around enrolment, and the fact that the data then gets published. The enrolled deed poll does not include the question whether someone has a criminal past. I am still concerned that that could be a loophole.
Victoria Atkins
Interestingly, the point that the hon. Lady has highlighted about, for example, victims of domestic abuse having to publish their addresses is one of the factors that we are very much having to bear in mind as we look at this. I have also received a great deal of correspondence from hon. Members concerned about the safety of transgender people, for example, and victims of domestic abuse. We can think of other examples of where people have changed their name and there are security issues therein as well as the fact of the name being changed. It is a very complicated area.
I have also listened to the concerns about the Disclosure and Barring Service system. As colleagues will know, the DBS conducts criminal records checks and maintains lists of people who are barred, by virtue of their previous convictions, from working with either children or vulnerable adults—sometimes both. That is an incredibly important process. My right hon. Friend the Member for Bromsgrove (Sajid Javid) has done a great deal of work on the issue as well.
I have asked my officials to work with the Disclosure and Barring Service, employers and others, including the General Register Office, to examine whether, for example, requiring birth certificates would help assure employers such as schools of a person’s history and previous names. The work is very complicated, not least because we have to bear in mind, for example, that 20% to 25% of records checks involve applicants born overseas. Although one would hope that it is easy in this country to obtain a copy of a birth certificate if one has lost it, that may not be the case elsewhere in the world.
Sarah Champion
The Minister has been going through the same process that I have been going through. Rather than putting a blanket demand for birth certificates on everybody, is there the potential to flag all sex offenders? I am not sure about the Minister’s view, but mine is that when someone carries out a sexual offence, they lose some of their rights. If all sex offenders had a flag on them that automatically triggered the check, either with the Driver and Vehicle Licensing Agency or the Passport Office, that would seem a more manageable way forward administratively.
Victoria Atkins
The Passport Office can already refuse to change the names on a passport under the existing regulations, but this whole area is incredibly complicated; it involves not just regulations but the common law as well. There is a great tradition in common law of people being able to change their names, and we would not want to trespass upon that. What we are trying to do is target sex offenders who are not doing what they should be—namely, notifying the police of any changes to their names.
I have gone through some of the work that we are conducting, albeit quietly; we have not gone to the lengths of describing it as a review. Given the wording of her new clause, I hope that the hon. Member for Rotherham takes comfort from the fact that we are looking at the issue seriously. We are working across the MOJ, the Home Office and other agencies relevant and important to the issue to try to find answers that are proportionate and protect the rights of the very people we are not trying to target.
My right hon. Friend the Member for Scarborough and Whitby gave the example of someone who changes their name on getting married. I am sensitive to the resource implications of having blanket orders. We will continue with this work. I am happy, as always, to involve the hon. Member for Rotherham because I know of her great interest and expertise on these matters, but I hope I can persuade her not to push her new clause.
Question put and agreed to.
Clause 141 accordingly ordered to stand part of the Bill.
Clauses 142 to 144 ordered to stand part of the Bill.
Clause 145
List of countries
Sarah Champion
I beg to move amendment 3, in clause 145, page 143, line 16, leave out “may” and insert “must”.
This amendment would place a requirement on the Secretary of State to prepare (or direct someone to prepare) a list of countries and territories considered to be at high risk of child sexual exploitation or abuse by UK nationals and residents, rather than leaving at the Secretary of State’s discretion to produce such a list.
The Chair
With this it will be convenient to discuss the following:
Amendment 4, in clause 145, page 143, line 20, after “residents”, insert
“, including those who commit those crimes online, remotely or via the internet”.
This amendment would ensure the list prepared by the Secretary of State includes countries and territories where children are considered at high risk of child sexual exploitation by UK nationals and residents who commit those crimes online, remotely or via the internet, and is not limited to in-person offending.
Amendment 5, in clause 145, page 143, line 24, after “residents”, insert
“, including those who commit those crimes online, remotely or via the internet”.
This amendment would ensure the list prepared by a relevant person directed by the Secretary of State includes countries and territories where children are considered at high risk of child sexual exploitation by UK nationals and residents who commit those crimes online, remotely or via the internet, and is not limited to in-person offending.
Amendment 6, in clause 145, page 144, line 16, leave out subsection (9).
This amendment would remove the ability of the Secretary of State to withdraw the list of countries and territories considered to be at high risk of child sexual exploitation or abuse by UK nationals and residents.
Clause stand part.
Clause 146 stand part.
Sarah Champion
I previously spoke about the horrific nature of online exploitation and the need for an urgent and robust response from the UK to disrupt the cycle of supply and demand fuelling that abuse. As I previously argued, the Bill is an important opportunity for the Government to take action in this area, and clause 145 is no different. I very much welcome the measures set out in the Bill and particularly in clause 145, which provide for the establishment and maintenance of a list of countries and territories in which children are considered to be at high risk of sexual exploitation or abuse by UK nationals or residents. Tied to this, clause 146 would require applicants—for example, the police—for a sexual harm prevention order or sexual risk order to have regard to that list. These important measures should be welcomed. They give effect to a recommendation made by the Independent Inquiry into Child Sexual Abuse.
It is vital that we do all we can to tackle contact offending overseas, but we must also take into consideration online offending against children overseas. My amendments 4 and 5, to clause 145, would require the Secretary of State to produce a list of high-risk countries for both in-person and online abuse. As currently drafted, the Bill grants the Secretary of State the ability to publish a list of countries and territories in which UK nationals pose a high risk of sexual exploitation and abuse. Through my amendments, I am seeking to clarify that that relates to both in-person and online abuse. Through amendment 6, I would make it a requirement that the Secretary of State do this; currently, it is a matter of discretion.
It is hoped that, through consultation with law enforcement and civil society, we will enable an accurate list of high-risk areas to be gathered together. That would be an immeasurably useful resource for targeting resources in the future. This process will also help us to better understand the nature of exploitation and abuse by UK nationals, enabling us to ensure that interventions are effective in achieving prevention.
As with my other amendments on online sexual exploitation of children, these amendments are supported by the International Justice Mission. I am very grateful for its support on this matter, but also for all the work that it does around the world to protect children. It knows only too well the horrific nature of online abuse carried out by UK offenders against children overseas. I really hope that the Minister is minded to add a provision about online abuse to the Bill or is able to give reassurance that the online proliferation of abuse will be included in the list.
Victoria Atkins
Again, I am mindful that the clauses are not opposed by the Opposition, so I hope that I can move straight to the amendments tabled by the hon. Member for Rotherham. However, I should just say, for those who are not familiar with why we are putting together a list of countries, that it was a recommendation of the Independent Inquiry into Child Sexual Abuse that we as a country must look very carefully and seriously at how sexual offenders within the UK travel abroad to rape and sexually assault children overseas. That is an incredibly important matter and one that we take very, very seriously.
The inquiry recommended that we bring forward legislation providing for the establishment of a list of countries where children are considered to be at high risk of sexual abuse and exploitation from overseas offenders—I underline that. This is a list to help people regarding offenders from the United Kingdom, not a commentary on offenders within the countries that are so listed.
The purpose of the list is to help the police and courts identify whether a civil order with a travel restriction should be made. The list has been created. We commissioned the National Crime Agency to develop the list of countries, and it brought together insights from sensitive law enforcement data, open-source intelligence analysis and the expertise of those who work with the victims of child sexual exploitation, in drawing it together.
Sarah Champion
I understand the logic of the argument that the Minister is putting forward, but what I hear anecdotally from the police is that there is that escalation. I would have thought that knowing, for example, that they are able to watch children being abused in the Philippines would be a draw for UK abusers who want that escalation to go to the Philippines. Having the word “online” there would make the police recognise the very severe damage that happens, whether it is done in person or is being directed by a UK national. It is about the recognition of how this escalates.
Victoria Atkins
Yes, I do understand that point, but there has been very careful consideration of the effects of an order to prohibit a person from travelling overseas. I am told that adding “online” to the clause would undermine the appropriateness of such orders.
I also draw the Committee’s attention to the Online Safety Bill, which will help more generally in the online world. It will place a duty of care on tech companies to target grooming and the proliferation of child sexual abuse material. Of course, Members will in due course scrutinise the draft Bill that has been put before the House for its consideration.
On amendment 6, the effectiveness of the list is dependent on its reflecting the current global intelligence picture. The Secretary of State must retain the right to withdraw the list in the unforeseen event that the intelligence picture changes rapidly or that the list becomes no longer of practical use. I stress, however, that our intention is to maintain the list, and any decision to withdraw it would be taken on an exceptional basis.
I welcome the hon. Lady’s, and indeed the Opposition’s broad support for the clauses, and invite her to withdraw the amendment.
Sarah Champion
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 145 ordered to stand part of the Bill.
Clause 146 ordered to stand part of the Bill.
Clause 147
Standard of proof
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Amendment 162, in clause 148, page 150, line 14, at end insert—
“(1B) A sexual harm prevention order must require the offender to participate in a treatment programme approved by the Secretary of State for the purpose of reducing the risk of sexual harm that a person may pose.”
Amendment 163, in clause 148, page 152, line 34, at end insert—
“(1B) A sexual harm prevention order must require the defendant to participate in a treatment programme approved by the Secretary of State for the purpose of reducing the risk of sexual harm that a person may pose.”
Clause 148 stand part.
Amendment 164, in clause 149, page 154, line 42, at end insert—
“(7A) A sexual risk order must require the defendant to participate in a treatment programme approved by the Secretary of State for the purpose of reducing the risk of sexual harm that a person may pose.”
Clauses 149 to 152 stand part.
Sarah Champion
Amendments 162 to 164 were tabled in not only my name but that of my right hon. Friend the Member for Kingston upon Hull North (Dame Diana Johnson). They amend clauses 148 and 149, which relate to sexual harm prevention orders and sexual risk orders. The Government are introducing the clauses to expand the role of those orders so that positive requirements can be placed on individuals, and we welcome that. Currently, the law allows only for individuals to be ordered to stop things.
Given that the Government are introducing changes to the orders, I believe that the law could be strengthened even further, which is why I am speaking to the amendments in the name of my right hon. Friend. The amendments would impose a positive duty to refer to a treatment programme all individuals who are subject to a sexual harm prevention order where they have been convicted, or a sexual risk order when a conviction has not yet been obtained. For example, that could be prior to a court hearing when there is sufficient concern for an order to be made before a conviction is obtained.
Under the amendments, a mandatory referral to treatment services would be required for all those engaged in criminal sexual behaviour and where a SHPO or SRO is to be put in place. That is an attempt to intervene at the earliest opportunity, and in particular to stop non-contact sexual offending behaviour escalating. Starting with non-contact sexual offending, such as indecent exposure or voyeurism, is necessary as it is often a gateway to more serious offending. There is a great deal of evidence that those who commit low-level or non-contact sexual offences will often escalate their behaviour and take more risks, with the potential for increasingly violent sexual crimes.
That pattern of behaviour is encapsulated by the case of a University of Hull student, Libby Squire, who was out in Hull one night when she was picked up by a man who went on to rape and murder her and then dumped her body in the River Hull. She was not found for many weeks. It was later revealed that the man who murdered Libby had been prowling the streets of Hull for many months committing low-level sexual offences such as voyeurism and burglary of women’s underwear and sex toys. Those crimes took place between 2017 and January 2019.
The last known non-contact sexual offence that the man committed happened just 11 days prior to the murder of Libby Squire. Unfortunately, very few of his crimes were reported to the police before Libby went missing. Even if the offender had been charged or convicted of those non-contact sexual crimes, the police believe that little would have been done to address his offending behaviour, as his actions did not meet the high threshold for referral to specialist treatment.
The amendments would address that issue and make referrals mandatory for all sexual offending, including lower-level or non-contact sexual offending. That would effectively interrupt a pattern of behaviour at the earliest possible point and help to prevent an escalation of sexual offending, thus helping to reduce the risk of sexual harm to women and girls and the wider public. I look forward to hearing what the Minister says about this group of amendments, as I know that she too is very concerned about these matters.
Victoria Atkins
Again, I am not going to address the clauses, because I understand they are not opposed. If I may, I will deal with the amendments. I am extremely grateful to the hon. Member for Rotherham and the right hon. Member for Kingston upon Hull North, who has rightly brought to the fore the case of Libby Squire. Although I am not a Hull Member of Parliament, I have some knowledge of it because it is in my part of the country, and everyone in our region watched the facts of that case unfold with growing dismay, gloom and horror when it was eventually clear what had happened to poor Libby, so I very much appreciate the chance to put on the record our condolences to her family. I also completely understand why the right hon. Lady has tabled the amendments.
We are not able to agree to the amendments because we are concerned that for each offender, even of so-called low-level offences, one has to be very, very careful to make it clear that those offences are still by their very nature serious. Sadly, the depravity and gravity of sexual offences is such that there is a range, and the lower-level offences are ones that are particularly troubling to the right hon. Member for Kingston upon Hull North in the context of this clause.
It is important to make an individual assessment of the value of a treatment programme in each case, using risk assessment and risk management plans to inform the decision. Sadly, not all offenders will respond appropriately to a treatment programme. Indeed there are fears that, in some cases, it could exacerbate their offending behaviours. At the moment and for the foreseeable future, we intend that treatment programmes should be directed towards offenders who would benefit most. When I say “benefit”, it is for the wider benefit of the community that these perpetrators are stopped, but it is for those offenders who will respond best to the programmes. That means that a case-by-case assessment must occur, rather than the universal approach proposed by the right hon. Lady.
I have spoken to the right hon. Lady and received a letter from her setting out her concerns. I know that her principal concern is how we manage effectively the risk presented by sex offenders whose offending behaviour starts with non-contact sexual offences such as indecent exposure, but which then escalates. There is a growing understanding that there is a range of behaviours that can escalate, and we very much want to address that escalation in behaviour.
However, one of the challenges is that, as the right hon. Lady acknowledges, the lower-level non-contact sexual offences might not be reported. If they are not reported, the police cannot deal with an offender if they do not know about that offender. They cannot manage the risk presented by such offenders if the behaviour is not reported and prosecuted as appropriate. So, from this afternoon, let us all encourage people who see the voyeurism or indecent exposure that concerns us in this particular area to please report that to the police. If it is reported, it begins to build a picture of that offender so that appropriate and necessary action can be taken.
Where such offences are reported and lead to convictions, the offender will be made subject to the notification requirements under the Sexual Offences Act 2003 and risk-assessed and managed under a multi-agency public protection arrangement. That plan will be implemented with support from other relevant agencies within the MAPPA framework.
Police, Crime, Sentencing and Courts Bill (Fifteenth sitting)
Sarah Champion ExcerptsThursday 17th June 2021
(4 years, 8 months ago)
Public Bill CommitteesRead Full debate Police, Crime, Sentencing and Courts Act 2022 View all Police, Crime, Sentencing and Courts Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 17 June 2021 - (17 Jun 2021)
Sarah Jones
It is a pleasure to serve under your chairmanship again, Mr McCabe. Part 10, chapter 1, introduces serious violence reduction orders. Officers would be allowed to search people with an SVRO without reasonable grounds and without authorisation, which would be an unusual stop-and-search power. In effect, SVROs are not only a new court order, but a new stop-and-search power.
Clauses 139 and 140 specifically encourage officers to search people with previous convictions. The only safeguard in the Bill is the fact that the court decides whether to apply an SVRO on a conviction or not. Once an individual has an SVRO, officers would not have to meet any legal test in order to search them for an offensive weapon.
The context is that, on this Government’s watch, there have been record levels of serious violence. Despite the fall in violent crime during the first lockdown, it exceeded the levels of the previous year by the summer; between July and September 2020, it was up 9% compared to the same period in 2019. Violent crime has reached record levels, with police dealing with 4,900 violent crimes a day on average in the last year. The police have recorded rises in violence nationally since 2014, and violence has more than doubled in the past five years. In the year ending September 2020, violence against the person reached 1.79 million offences—its highest level since comparative records began in 2002-03.
Even during the last year, knife crime increased in 18 out of the 43 forces—44% of forces—despite the effects of lockdown. In the last year, violence made up nearly a third of all crime dealt with by the police; it was up from 16% when the Tories took office and 12% in 2002-03. Reports of violent crime have increased in every police force in the country since 2010. In four fifths of forces, violent crime has at least doubled, and knife crime reached its highest level on record in 2019-20, having almost doubled since 2013-14. There is clearly much to be done.
On the flip side, more and more violent offenders are getting away with their crimes; charge rates for violent offences have plummeted from 22% in 2014-15 to just 6.8% in 2019-20. While the total number of violent crimes recorded has more than doubled in the last 6 years, the number of suspects charged has fallen by a quarter, and the number of cases where no suspect is identified at all has nearly trebled. It is clear that the Government have a serious problem; they have let serious violence spiral out of control.
Earlier in Committee, we discussed the prevention of serious violence, and I put forward various amendments to improve clauses that we broadly welcomed. We talked about the way that violence drives violence, and said that if the Government want to properly follow a public health approach to tackling serious violence, they cannot treat it as though it happened in a vacuum. We need a proper public health approach to tackling violence that addresses the root causes of why people fall into crime, with early intervention to significantly impact the lives of vulnerable young people and communities.
It is hard to be persuaded that more sweeping powers to stop and search people with previous convictions will reduce serious violence. There is little evidence that stop-and-search is an effective deterrent to offending. That is not to say that it is not an important tool; it absolutely is and we all agree with that—nobody is saying otherwise. It is part of the police’s armoury when it comes to tackling crime.
Stop-and-search is more effective at detecting criminals, but most searches result in officers finding nothing. The key figure, which it is always important to look at, is the proportion of searches that actually result in finding something. Only around 20% of searches in 2019-20 resulted in a criminal justice outcome—an arrest or an out-of-court disposal—linked to the purpose of the search.
While evidence regarding the impact on crime is mixed, the damaging impact of badly targeted or badly conducted stop-and-searches on community relations with the police is widely acknowledged, including in my community in Croydon, where the police have put a lot of work into building community relationships to try to bridge that gap.
Sarah Champion (Rotherham) (Lab)
Is my hon. Friend interested, as I am, to see what the Government plan to do to rebuild that trust with communities, which has, unfortunately, unravelled over the last few years?
Sarah Jones
My hon. Friend makes an important point. We should remind ourselves of this: if I faced a crime, I would immediately call the police—they are the people I trust to fix it—but there are communities in our country who do not have that trust, and who do not think that calling 999 will help them, or keep them safe. We must act on that. Following Black Lives Matter and the death of George Floyd, the police in Croydon have reached out to the young black men in our community to try to build relationships. That is exactly what we should do, and it is something that all the national police organisations are looking to do.
The Library states that
“Available statistical analysis does not show a consistent link between the increased use of stop-and-search and levels of violence”.
I do not often point to the Prime Minister as an example of good practice, but in every year while he was Mayor of London, the number of stop-and-searches went down in London, as did violent crime. Interestingly, he was following a slightly different course from the one he now advocates as Prime Minister.
The College of Policing has concluded that stop-and-search should be used “carefully” in response to knife crime. The Home Office’s research found that the surge in stop-and-search during Operation Blunt 2 had
“no discernible crime-reducing effects”.
A widely cited study that was published in the British Journal of Criminology and analysed London data from 2004 to 2014 concluded that the effect of stop-and-search on crime is
“likely to be marginal, at best”.
The research found
“some association between stop-and-search and crime (particularly drug crime)”,
which I will come back to, but concluded that the use of the powers
“has relatively little deterrent effect”.
Most searches result in officers finding nothing. Officers found nothing, as we have talked about, in nearly 80% of searches in 2019-2020. Searches for drugs were more successful than average, with about 25% linked to an outcome.
The Prime Minister and the Home Secretary, when they talk about stop-and-search, talk about getting knives off the streets. However, the searches for offensive weapons and items to be used in burglary, theft or fraud were the least likely to be successful—9% were linked to a successful outcome. The results are even lower for pre-condition searches, or section 60 searches, as they are called, although the only reason officers can use the power is to search for a knife or an offensive weapon. This is a very stark statistic: in 2019-20, only 1.4% of pre-condition searches led to officers finding a knife or offensive weapon. Nearly 99% of searches did not find an offensive weapon, and obviously that has taken a huge amount of police time and resources.
In February 2021, Her Majesty’s inspectorate of constabulary and fire and rescue services published the findings of a review of 9,378 search records, 14% of which had recorded grounds that were not reasonable, and the inspectorate said the vast majority of search records had weak recorded grounds. There is a real lack of clarity on both the success of stop-and-search, and the Government’s messaging on it. They say it is to tackle knife crime and break the cycle of weapon carrying, in the interests of keeping our community safer, but actually the figures for finding a weapon are really low. The Government need to be clear about what the purpose of stop-and-search is. It seems to be that most of the positive results are in finding drugs, yet in communications they say it is about protecting families from the scourge of knife crime.
Around 63% of all reasonable-grounds searches in 2019-20 were conducted to find controlled drugs. HMICFRS says,
“The high prevalence of searches for possession of drugs…indicates that efforts are not being effectively focused on force priorities.”
What the Government do not talk so much about is the outcome of these searches; if only 20% last year resulted in an outcome, what were the Government doing with this data—what are the results? What are they doing to try to measure and improve outcomes?
It is, of course, imperative that we pass legislation to keep the public safe, but these measures are not a proportionate way of protecting the public. They risk further entrenching disparities, and there is little evidence that they would have the crime reduction impact that the Government intend. The worry is that introducing more stop-and-search powers without reasonable grounds will only serve to stoke division, and not necessarily have the intended outcome.
We have sought to amend clauses 139 and 140, and I will get to the amendments later, but first I want to set out a number of problems that could arise if these clauses were to become law. The inspectorate and the Independent Office for Police Conduct both raised concerns about reasonable grounds not being used or recorded properly. As the College of Policing recognises, requiring that objective and reasonable grounds be established before police can exercise their stop-and-search powers is key to their decision making. However, the serious violence reduction orders in these clauses will require no reasonable grounds or authorisation. When Nina Champion from the Criminal Justice Alliance gave evidence to this Committee, she said:
“Of course, we all want to reduce knife crime, but…We worry about these very draconian and sweeping police powers to stop and search people for up to two years after their release without any reasonable grounds. Reasonable grounds are an absolutely vital safeguard on stop and search powers, and to be able to be stopped and searched at any point is a very draconian move that, again, risks adversely impacting on those with serious violence reduction orders. For young people who are trying to move away from crime, set up a new life and develop positive identities, to be repeatedly stopped and searched, labelled and stigmatised as someone still involved in that way of life could have adverse impacts. It could also have impacts on the potential exploitation of girlfriends or children carrying knives for people on those orders. There could be some real unintended consequences from these orders.”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 18 May 2021; c. 156, Q265.]
Many different organisations have raised concerns about the measures in clauses 139 and 140. When I have spoken to police officers about them, they say that the clauses almost came out of the blue; it does not seem that these clauses come from the police, and they do have concerns about how they will enforce them.
Sarah Champion
I am interested in the point the Minister is making about first-time offenders. A lot of children and young adults carry knives because they are scared and because they are aware of the crime going on in their area and they want to protect themselves—they feel vulnerable without a knife. What guidance will be in place for police officers to make the distinction?
Victoria Atkins
First and foremost, this will be piloted and there will be lessons learned during the careful piloting of the orders. Also, the orders are only available to convicted knife carriers above the age of 18.
I compare and contrast with knife crime prevention orders, which form part of the overall context of the orders. The hon. Member for Croydon Central will recall that KCPOs were introduced in the Offensive Weapons Act 2019 and are intended to be rehabilitative in nature. We have both positive and negative requirements that can be attached to them. They are available for people under the age of 18, from the age of 12 upwards. That is the difference between the two orders.
The hon. Member for Croydon Central asked me about the piloting of KCPOs. Sadly, because of the pressures of covid, we were not able to start the pilot when we had wanted to, but I am pleased to say that the Metropolitan police will start the pilot of KCPOs from 5 July. We will be able to gather the evidence from that type of order alongside the work on SVROs, which will obviously start a little later than July, given the Bill will not yet have Royal Assent. That will run alongside. It will run for about 14 months and we will be able to evaluate and see how the orders are working.
Victoria Atkins
I wonder whether it would be convenient for the hon. Member for Rotherham to speak?
Sarah Champion
It would be convenient—thank you. It is always a pleasure to serve under your chairship, Mr McCabe.
I found a very real problem that I did not know existed. I have spoken to a number of Ministers in the Home Office and the Ministry of Justice about it, and they all recognise that it is a real problem. I am seeking, through new clause 65, to get a review into how registered sex offenders are changing their names, and in doing so, are slipping under the radar with some absolutely devastating consequences.
Currently, all registered sex offenders are legally required to notify the police of any changes in their personal details, including names and addresses. Those notification requirements are incredibly weak, however, and place the onus entirely on the sex offender to report changes in their personal information. I would like to say that, by their very nature, sex offenders tend to be incredibly sneaky and used to subterfuge, so the likelihood of them actively notifying their police officer is quite slender.
At this point, I would like to mention the crucial work that has been carried out by those at the Safeguarding Alliance, who identified this issue four years ago and alerted me to it. They have an upcoming report, from which I will use just one case as an example. It is the case of a woman called Della Wright, the ambassador for the Safeguarding Alliance, who is a survivor of child sexual abuse. She has bravely chosen to speak out and to tell her story, which is symptomatic of that of so many other survivors who have been impacted by the serious safeguarding loophole.
When Della was between six and seven years old, a man came to live in her home and became one of her primary carers. He went on to commit the most heinous of crimes, and was free to sexually abuse Della at will. Years later, Della reported the abuse in 2007 and again in 2015. Then it quickly become apparent that the person in question was already known to the police. He had gone on to commit many further sexual offences against an undisclosed number of victims. During this time, Della was made aware that his name had changed. It has since been identified that he has changed his name at least five times, enabling him to relocate under the radar and evade justice. When Della’s case was finally brought to court, he was once again allowed to change his name, this time between being charged and appearing in court for the planned hearing. That slowed down the whole court process, adding additional stress to Della, and made a complete mockery, I may say, of the justice system.
While the loophole exists, Della’s abuser is free to change his name as often as he likes, including from prison.
Mr Robert Goodwill (Scarborough and Whitby) (Con)
I am astounded to hear what the hon. Lady is saying. Do similar checks take place when people get married, as there is quite a trend towards new, double-barrelled surnames? Is that a similar loophole that people could use?
Sarah Champion
I do not know the specifics, but I do know a friend whose husband cheated on her, who wanted to change her name before the divorce came through. She used the £15 option; it is just filling out a form and paying the money.
Hywel Williams
I would raise a further point. One of the aspects of denial among sex offenders is that they put a psychological distance between themselves and the offence on conviction. That is a subtle driver for people to change their names, quite apart from the wish to offend again and not be detected.
Sarah Champion
The hon. Gentleman makes a really interesting point on the psychology, which I had not considered. He is absolutely right.
If the name-change process was well joined up, it would stop the sex offender from successfully receiving a DBS check. Current guidance means that the police can only do that in certain cases—for example, for sex offenders they believe to be at risk of changing their identity or who work in a profession where they have regular contact with vulnerable people. As far as I am concerned, that would be the definition of all sex offenders. The police are encouraged to limit their inquiries to these agencies to avoid unnecessary or high volumes of requests to them.
The guidance states that
“to avoid unnecessary or high volumes of requests to these agencies, enquiries should be limited”
to cases where risk factors apply. I believe that the police should be able to do this for all sex offenders.
The Government have recognised that this is an issue. In response to an e-petition, the Minister said that the Government would like to change the guidance so that only enrolled deed polls are seen as an official name change. This is still concerning, as an enrolled deed poll means that the individual’s old name, new name and address appear in the London Gazette. I ask Committee members to imagine they were fleeing domestic violence and wanted to change their name. How would they feel, knowing that that was going to be broadcast in a place where their abuser would be sure to look?
My suggestion is for all sex offenders to have a marker on their file at the DVLA and at Her Majesty’s Passport Office that would mean that would be flagged on the DBS database. That would remove the onus from the sex offender so that if they breach their notification requirements, the police will know quickly. I accept that more resources would be needed for this to be effective, but surely it is worth more funding to prevent more adults and children from experiencing more traumatic abuse.
There needs be a full review to try to identify the gaps in safeguarding and ensure this cannot go on any longer. New clause 65 is supported by over 35 MPs from across the House, including the Chair of the Education Committee, the right hon. Member for Harlow (Robert Halfon), the Chair of the Women and Equalities Committee, the right hon. Member for Romsey and Southampton North (Caroline Nokes), and the former Brexit Secretary, the right hon. Member for Haltemprice and Howden (Mr Davis).
Allan Dorans
Does the hon. Lady agree that if the provision had been in place in 2002, it could have prevented the needless murder of Holly Wells and Jessica Chapman by Ian Huntley, who had changed his name prior to committing this offence?
Sarah Champion
I absolutely agree. That is my frustration because when we look back at some of these high-profile cases, name changes have been common practice. This issue was also raised in the recent report by the Centre for Social Justice, “Unsafe Children.” The End Violence Against Women Coalition, said:
“It defies logic that this current system appears to rely on perpetrators of sexual offences identifying their own risk. Especially given that perpetrators are often highly manipulative and skilled at deceiving others and appearing ‘safe’.”
The new clause is not controversial. All I ask for is a review to find out what is going wrong. I do not know if other Members have signed up to receive notifications if a person of high risk is rehoused in their constituency. I receive such notifications, unfortunately quite regularly. In the most recent notification I had, there are 19 different specific licence conditions that the offender has to meet. One of them is to notify their supervising officer of details of any passport they may possess, including passport number, or any intention of applying for a new passport. However, there is no mention on that list of changing their name. That would seem to be a basic thing, so that at least the sex offender knows in advance that they have to notify the police, so it is a clear breach of conditions when they do not do that.
Ordered, That the debate be now adjourned.—(Tom Pursglove.)
Police, Crime, Sentencing and Courts Bill (Fourteenth sitting)
Sarah Champion Excerpts(4 years, 8 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Chris Philp
I will follow your direction, Sir Charles, by saying just a few words on this clause, which is relatively straightforward and, I think, pretty inoffensive.
Clause 130 simply creates a requirement for probation officials to consult key local and regional stakeholders on the delivery of unpaid work. Unpaid work—or community payback, as it is sometimes known—combines the sentencing purposes of punishment with reparation to communities. We believe that, where possible, unpaid work requirements should benefit the local communities in which they are carried out. Nominated local projects are already popular with sentencers and the public, but there is currently no requirement for probation officials to consult stakeholders on the design or delivery of unpaid work, so members of communities and organisations within particular local areas that are best placed to understand the impact of crime and what might be useful in the local area do not necessarily have their say.
Clause 130 simply seeks to address the gap by ensuring that key local stakeholders are consulted, so that they can suggest to the probation service what kind of unpaid work might be useful in their local area. We hope that local community groups and stakeholders come up with some good ideas that the probation service can then respond to. That seems to be a pretty sensible idea. The probation service in some areas may do it already. This clause simply creates a proper duty, or a requirement, for the probation service to do it. Of course, if we understand the needs of local communities and their thoughts, we can improve the way unpaid work placements operate to support rehabilitation and also help the local community. If the local community can visibly see offenders doing unpaid work in their local area, whether it is cleaning off graffiti, cleaning the place up or whatever else it may be, that will, we hope, demonstrate that the programme is giving back to and improving the local community, but delivering a punitive element as well.
Chris Philp
I was about to conclude, but of course I will take the intervention.
Sarah Champion
When I used to run a children’s hospice, we had offenders under probation supervision come in. They were meant to be doing gardening at the children’s hospice, but instead they sat around smoking cigarettes. We kept on raising that with the probation worker, because we had invited the offenders there to give them a second chance, to help with their rehabilitation, to enable them to contribute to the community and so on. But the probation officer said, “What do you want me to do? I can’t beat them; I can’t make them work, but they have to come on these schemes.” Could the Minister give some examples of how the probation service will have the resources and the influence to ensure that people who are out in their local community are actually—
The Chair
Order. This is meant to be an intervention, not a speech. The hon. Lady is entitled to make a speech and could have made a speech, but can we treat this as an intervention?
Chris Philp
The hon. Lady makes a very good point. First, I am extremely disappointed and somewhat shocked to hear that people who were supposed to be doing work at a hospice in Rotherham in fact sat around smoking cigarettes. That is obviously shocking and not what the orders are supposed to be about. The hon. Lady says that the probation officer shrugged their shoulders and said, “Well, what can I do about it?” Of course, if the person, the offender, was not doing the work that they were supposed to be doing, that would amount to a breach of the unpaid work requirement, and they could be taken back to court to account for their breach, so I am extremely disappointed by the attitude of the probation officer that the hon. Lady just described.
The hon. Lady asked about resources. Extra resources are going into the probation service for it to supervise exactly these kinds of activities, and I would expect them to be supervised and policed properly. I will certainly pass on her concern to the relevant Minister. I have already made contact about fixing a meeting for the hon. Lady and the Prisons Minister that we talked about in this morning’s session, in relation to victims being consulted about probable decisions. The same Minister, my hon. Friend the Under-Secretary of State for Justice, is responsible for the probation service as well—I am just adding to his workload. I will raise it with him, but I would certainly urge the hon. Member for Rotherham to raise this issue in the same meeting, because I know that the account she just gave will concern my hon. Friend as much as it concerns me.
Alex Cunningham
I thank the Minister very much for that—it will, of course, be on the record, which I am very pleased to note. Before I get into my speech, I would like to thank Transform Justice and the Alliance for Youth Justice for the extremely helpful work they have done on this part of the Bill. I also thank my hon. Friend the Member for Hove (Peter Kyle), the former shadow Justice Minister, who worked extremely hard on these particular issues. I am grateful to him.
Clause 131 amends the legislative threshold for remanding a child to custody. It will mean that remand to youth detention accommodation can be imposed only in the most serious cases, where a custodial sentence is the only option and the risk posed by the child cannot be safely managed within the community. It will introduce a statutory duty which states that courts must consider the interests and welfare of the child before deciding whether to remand them to youth detention. It also imposes a statutory requirement for the courts to record the reasons for the decision.
First, let me say that we are pleased with the direction of travel that this clause indicates, and we are keen for the Government’s work in this area to succeed. We are in complete agreement with the Government that custodial remand should be used only as a last resort for children. However, we do think that there is scope for these proposals to go further in tightening the threshold for remanding a child into custody. I will speak more on that when we discuss our amendments.
The current youth remand provisions were introduced in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and I well remember the Public Bill Committee, where I had the privilege of serving as Parliamentary Private Secretary to Sadiq Khan, now our excellent Mayor of London, and also my good friend. By 2019, the independent inquiry into child sexual abuse noted a significant increase in the use of custodial remand for children. The Opposition warmly welcomes measures which aim to reduce the number of children remanded into custody, especially in light of the fact that in 2018/19 only a third of children remanded to custody or local authority accommodation later received a custodial sentence.
Our concerns about the use of custodial remands for children are compounded by the extreme racial disproportionality on remand, and the record proportion of children in custody who have not yet been tried in court.
Against the backdrop of the record court backlog and the waiting times for trial, there could not be a more opportune moment to address these issues. We particularly welcome the introduction of the statutory duty to consider the welfare and best interests of the child. We believe that, while these proposals can go further—I know that the Minister will listen carefully to our proposals shortly—these changes will help to reduce the number of children who are unnecessarily remanded to custody, so we are pleased to support them.
However, there are a couple of points on which I would welcome the Minister’s thoughts. Has he any further information to share with the Committee on his Department’s considerations of the impact that police remand has on custodial remand? Are there any plans to address that? Research by Transform Justice shows that police remand, where the child is detained by the police until court either in a police cell or in a local authority PACE bed—under the Police and Criminal Evidence Act 1984—is a driver of custodial remand. Transform Justice explains that point:
“This is because any child remanded by the police has to be presented in court within 24 hours, meaning Youth Offending Team staff often don’t have enough time to develop a bail package that will satisfy the court. Children who appear from police custody also usually appear in the secure dock, which can bias courts to view the child as more ‘dangerous’ and therefore more suitable for custodial remand.”
The criteria for police remand are spelled out in section 38 of the Police and Criminal Evidence Act and are very different from those used by the court for remand. In fact, the criteria for police remand of children are almost identical to those for adults, unlike the child-first approach taken in so many other areas of the justice system.
We know that the police remand more children than the courts. Of the 4,500 children who appeared in court from police custody in 2019, only 12% went on to be remanded by the court. Some 31% of those remanded by the police went on to be discharged, dismissed or have their case withdrawn, while 37% went on to get a fine or community sentence. The figures illustrate that police use of remand is seriously out of synch with the courts already. This clause may further widen that gap.
Is the Minister not concerned that the police may continue to overuse post-charge detention, undermining the positive efforts of the clause to reduce unnecessary custodial remand for children? Will the Government consider updating the police remand criteria, so they are in line with the new court remand criteria, to ensure consistent decision making across the whole criminal justice system?
I am greatly supportive of the provision in the clause that requires courts to record their reasons for remanding a child, not least because it will provide valuable data on the use of remand, which will enable us to continue to make improvements in this area. For that to be most effective in informing future policy decisions, we would need to have some sort of centralised monitoring system. Will we have such a system? It would mean that the need to record reasons would not only focus the mind of the court in a specific case; it would also benefit the system as a whole, as each case can inform our ongoing learning process about the use of remand and its effectiveness. Has the Minister considered the possibility of such a centralised monitoring system?
It has been suggested that the obligation on the court to record reasons would be most effective if courts had to specify why non-custodial alternatives were deemed unsuitable and how each of the custodial remand conditions has been met. Is that the kind of detail that the Minister envisages the obligation should entail? I am sure we all agree that it would be helpful for that level of information to be provided, so I am interested to hear the Minister’s thoughts.
Turning to the amendments, as I said earlier, the reforms to the threshold for remanding a child in custody are welcome, but there are a couple of areas where we believe they should go further. The Opposition amendments, if adopted, would get us closer to the goal of custodial remand being used only as a truly last resort.
Amendment 128 seeks to tighten the history test by defining a recent history of breaching bail or offending while on bail as having been committed within the last six weeks. The clause currently makes provision to amend the history condition so that the previous instances of breach or offending while on bail must be “significant”, “relevant” and “recent”. In order to reduce the number of children held unnecessarily on remand, it would be helpful to amend the clause so that there is a clear definition of “recent”.
In defining recent, we have to be mindful of what that means to a child. As the Alliance for Youth Justice notes:
“If we are to take a child-centred approach, we must consider how children experience time, and recognise the well-established principle that children change and develop in a shorter time than adults.”
The Youth Justice Board for England and Wales has recommended that “recent” be no longer than within a six-week period. I hope that the Minister will agree that clarity on that point would be of great assistance to the courts. I would be interested to hear from him what discussions his Ministry of Justice colleagues have had regarding defining a time limit for this condition.
Amendment 129 is a straightforward amendment to the necessity condition that would again help achieve the aim of using custodial remand for children only as a last resort. Although we welcome the strengthened wording of the necessity condition included in the Bill, which would require remand to be used only when the risk posed by a child cannot be safely managed in the community, we share the concerns of the sector that the benefits arising from this change may be undermined by its drafting. The amendment would therefore tighten and strengthen the wording. Transform Justice says that these benefits of the current proposed change to the necessity condition
“will be undermined by the loose wording of one of the other necessity conditions: that remand to YDA is necessary to prevent further imprisonable offences. This condition is highly subjective and casts a wide net, which may be widened further by youth sentencing provisions elsewhere in the bill.”
We share the concern expressed by the Alliance for Youth Justice that
“the latter part of the condition (to prevent the commission of an imprisonable offence) sets such a low threshold for meeting the Condition as to render the first threshold (to protect the public from death or serious personal injury) somewhat redundant.”
The amendment would tighten the latter part of the condition by ensuring that it applies only to serious imprisonable offences, which we think better reflects the intention of the clause.
Finally, amendment 130 would compel the court to record the age, gender and ethnicity of a child remanded in custody in order to provide better data on remand, particularly on disproportionality. We believe that this could be a helpful tool in addressing the deeply concerning and increasing levels of disproportionality at this point in our justice system. The numbers beggar belief. Nine out of 10 London children who are remanded are from black, Asian and minority ethnic communities. A deeply comprehensive report that was published by the Youth Justice Board in January shows that race alone is a factor in remand outcomes for children. The researchers gathered data on thousands of English and Welsh cases, and information provided in practitioner assessments. Even when other related factors were controlled for mixed ethnicity black children, they were, as the Youth Justice Board notes,
“still more likely to be remanded in custody and, if not remanded, more likely to be subject to restrictions on bail.”
This is a serious injustice in our system that needs to be urgently addressed. More needs to be done than this amendment makes provision for, but it would be a helpful tool in breaking down the disproportionate outcomes that we are seeing. The amendment would at the very least provide accurate data to help understand this disparity, in line with the “explain or reform” principle outlined in the Lammy review, which I think is an eminently sensible step in the right direction. I hope that the Minister agrees and look forward to hearing his thoughts. I would also be grateful if he could share with the Committee any other initiatives his Department is working on to address this flagrant disproportionality in youth remand.
Sarah Champion
I fully support the arguments made by my hon. Friend the Member for Stockton North on the amendments. I have a fundamental concern about remanding children. It impacts on them disproportionately in terms of their future outlook, opportunities and potential. We see within the remand youth justice system some of the highest levels of disproportionality in the criminal justice system. Although Labour Members welcome the measures in the Bill to tighten the tests that the courts must satisfy to decide whether to remand a child in custody, we still have concerns about this section of the Bill.
We agree with the policy to encourage the courts to impose a custodial remand only when absolutely necessary while ensuring the public remain safe, but as my hon. Friend stated, there are real concerns about the overrepresentation of black, Asian and minority ethnic people, who make up only 12% of the UK population but half the youth prison population. I would be much more comfortable if we were using the Bill to look at the reasons for that disproportionate make-up, rather than at further punitive measures. We have to take steps to ensure that all people, particularly all children, can reach their potential. I am very mindful of the fact that the literacy rate of the prison population is so much lower than that of the rest of the population. Why are we not investing more to address those underlying issues?
I am frustrated that the Government agreed to my amendment to a previous Bill to introduce relationship and sex education that should have become mandatory in September 2020 but it has not yet been enacted, while we see ever younger children engaged in completely inappropriate actions of a sexual nature. There are preventive measures that we could put in place but we must also consider, and address accordingly, what it is that some children that I am thinking about, such as children in gangs, are being subjected to that makes them feel that they need to go along with the norm of the gang rather than the norm of society. I am not talking about giving any group special treatment; I am talking about taking steps to fix the justice system so that it operates in a fair and proportionate way for everybody.
Alex Cunningham
Secure children’s homes accommodate boys and girls aged 10 to 17 assessed as particularly vulnerable. As well as children held on justice grounds, secure children’s homes accommodate children detained on welfare grounds for their protection or the protection of others. The explanatory notes state that they
“currently rely on inherent powers to make arrangements for the ‘mobility’ of children detained in such accommodation to help address their offending behaviour and to support the integration of children back into the community at the end of their sentence. Clause 137 would provide a statutory power for the temporary release of children detained in SCHs. The Secretary of State or the registered manager of the home would be able to temporarily release a child to whom the clause applies. Temporary release under this clause could be granted under conditions. The Secretary of State and registered managers would have concurrent powers to recall children temporarily released…If the period for which the child is temporarily released expires or if the child has been recalled, the child would be deemed to be unlawfully at large.”
Overall, we are supportive of the Government’s proposals in this area and recognise that a good balance has to be struck between allowing temporary release of children from secure children’s homes to support their reintegration into society, and close monitoring of children on temporary release for risk management purposes.
The Opposition understand that temporary release is an important part of the rehabilitation process for children sentenced to custody, and that some child sentence plan objectives will require them to attend meetings or participate in activities outside the secure establishment. As the Youth Justice Board notes in its briefing,
“Allowing children to be released temporarily supports their constructive resettlement into their community both in maintaining family ties and allowing children to start or maintain education placements.”
While the clause is effectively just putting into statute practice that is already in place, we are pleased to see the Government conferring authority for these decisions and processes to the secure school provider, as they will be best placed to support the child in question.
Research published by the Department for Education comparing children on justice placements and those on welfare placements in secure children’s homes concluded that children on justice and welfare placements are fundamentally the same children. The research found that the level of risk posed by individual children was not related to whether they were on a justice or welfare pathway. The report examined whether there was a need to separate children on justice and welfare placements, but concluded that, rather than separating them, if anything the children would benefit from greater integration. While secure children’s homes managers already have powers under section 25 of the Children Act 1989 to consider and approve temporary release for children on welfare placements, we are pleased that the new provisions will put those managers in the same position for sentenced children on justice placements.
We note the concerns of the Howard League, however, that the clause applies only to children who have been sentenced and therefore excludes children who are held in secure children’s homes on remand from being able to access temporary release. The Howard League points out that this change will therefore create a disparity between children who are in secure children’s homes and children who are in secure training centres. Rule 5 of the Secure Training Centre Rules allows children who are on remand to be temporarily released. It explains that unless temporary release also applies to children on remand in secure children’s homes and schools,
“there is a risk that this will undermine the ‘seamless service’ between custody and the community which the Government envisions for secure schools”
We agree with the Howard League that all children remanded to custody should have access to temporary release where appropriate, as they do in secure training centres.
The Bill’s fact sheet on this provision says temporary release is “not a relevant factor” for children on remand. I find this surprising given that we know that, as a result of court delays, children are sometimes subject to quite lengthy custodial remands. The Alliance for Youth Justice further points out:
“introducing new legislation which restricts temporary release in Secure Children’s Homes to sentenced children would be detrimental, particularly to the development of Secure Schools, which we know have ambitious plans for transitions into the community.”
I would be interested to hear the Minister’s thoughts on this and wonder why this distinction has been maintained. Will he consider including children on remand in these provisions? It would be helpful to be reassured on that point, but on the whole we are pleased with the proposal and will offer it our support.
As we have heard, clause 138 would amend the Academies Act 2010 so that 16-to-19 academies can provide secure accommodation for the purpose of restricting liberty but only if approved to do so by the Secretary of State. On the whole, the Opposition support the principle of secure academies and we do not strongly object to these academies being run by charitable entities. But, as ever, there are some areas in which I seek the Minister’s reassurances, especially with this clause, as comprehensive information is not available from the Government.
The Alliance for Youth Justice briefing on this clause says:
“We are aware of concerns that have been prompted by this section of the Bill around the lack of clarity on the status of Secure Schools, in particular what legislation, regulation and guidance will govern and oversee their activities. It has been confirmed to the AYJ by the Youth Custody Service and Oasis Charitable Trust, that Oasis Restore, the first Secure School pilot, will be registered as a Secure Children’s Home and regulated by Ofsted. It has also been confirmed that 12-to-18-year-olds may be placed in Oasis Restore.”
There is clear discomfort in the sector about the limited information available on the plans for Oasis Restore and how the model will operate in practice. Can the Minister confirm that his Department will publish more information on this? Can he provide a timeframe for publication?
Another issue raised by the sector is that it is unclear how the introduction of secure schools fits into the long-term strategy for the youth secure estate. I understand that it is the Government’s stated intention for secure schools to replace young offender institutions and secure training centres, but we have not yet seen any proposed timeline for such changes. Can the Minister provide more information on his Department’s intended timeline for the changeover to secure schools for the Committee today?
The first secure school is being established in Medway, but I understand that children from across the UK can be sent there. Hazel Williamson put it very well in our evidence session when she said:
“As an association of YOT managers, we believe that children in custody…should be placed in small, secure units close to their homes. We do not advocate large custodial establishments where children are placed far away from their home; we would advocate small custodial units.”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 20 May 2021; c. 133, Q212.]
Can the Minister confirm that the Government’s timetable for delivering secure schools will not entail children being detained hundreds of miles from their homes while still only a small number of these establishments are available?
The Youth Justice Board has shared its concerns about the links to children entering the youth justice system from practices such as off-rolling children. Indeed, there is a high prevalence of expelled children in the children’s secure estate. For instance, in 2018 in HMYOI Feltham, 89% of children had been excluded from school.
Can the Minister confirm that any academy trusts selected through the tendering process to open or run a secure school have got, as the Youth Justice Board put it
“the necessary skills, expertise, structures and ethos to support children in a secure setting”?
I know that the Howard League wrote to the Secretary of State on this issue last year, and its briefing says:
“This clause provides a legal basis for the ‘secure school’ model of youth custody: it allows academies to provide secure accommodation for their pupils if they have been approved to do so and establishes that running a secure academy is to be treated as fulfilling the charitable purpose of ‘advancement of education’ under s3(1) of the Charities Act 2011. In April 2020, the Charity Commission noted that ‘the proposed purposes of secure schools, as we understand them, do not wholly fall within the descriptions of purpose in s3(1) of the Charities Act 2011’ and that ‘we do not think the operation of a secure school can be exclusively charitable’. In November 2020, the Howard League wrote to the Secretary of State outlining the concerns that locking children up does not fall within charitable objectives. The proposal compounds this issue.”
It would be helpful if the Minister could share with the Committee his discussions with the Charity Commission, so that we all better understand the position that has been reached on this knotty issue.
Amendments 123 and 133 both relate to the inspection regime for secure 16-to-19 academies. Amendment 123 would make secure 16-to-19 academies subject to annual inspection by Her Majesty’s chief inspector of prisons, and amendment 133 would make them subject to annual inspection by Ofsted. I understand that the current inspection framework will come from Ofsted. However, I am sure the Government would agree that a secure school is a very different entity from a standard school. We therefore believe that such schools would benefit from a different inspection regime, to ensure that no aspects of their running are overlooked. Although it is true that it is not a prison, a secure school is still part of the secure estate, so there is expertise that Her Majesty’s Inspectorate of Prisons can provide. Indeed, when Ofsted does inspections on the secure estate, HMIP is part of the broader inspection team. We think the inclusion of HMIP is important and should be put on a statutory footing. I hope the Government agree that it would add value to the monitoring and running of the secure school system as it is rolled out, so I hope they will be able to support our amendment 123.
As I outlined in my earlier speech, there is still much that is unknown and has yet to be decided in relation to secure schools. For that reason, we think it would be important for there to be regular inspections, especially in the early years of operation. That is why our amendment 133 provides for annual inspection by Ofsted, to ensure that nothing slips through the cracks. Furthermore, we are entrusting such schools with the care of some of our most vulnerable children at a point in their lives when positive and engaged care can have the most impact, so it is only right that the schools are subject to the most rigorous monitoring while they do so. I hope that the Government agree and can support amendment 133.
Amendment 146, which was tabled by my hon. Friend the Member for Rotherham, allows for local authorities to establish and maintain a secure 16-to-19 academy, and to exclude profit-making bodies from doing likewise. I am sure she will address her amendment in detail, but she has our support.
Sarah Champion
My amendment 146 is designed to ensure that local authorities are able to run secure 16-to-19 academies, either alone or in consortia, and to prevent such establishments from being run for profit. I will go into the detail of why, but, fundamentally, I do not think profit should be made from keeping our children safe. We are seeing some pretty gross examples of that at the moment.
In December 2016, the Government committed to phase out child prisons—by that, I mean juvenile young offenders institutions and secure training centres—and to replace them with a network of secure schools and children’s homes. I hope that this is not just the Government playing semantics and that they really are going to get rid of these institutions, because it is very clear, and the Youth Justice Board concedes, that secure training centres are not fit for purpose.
The Government must speed up the phasing out of secure training centres. When introducing secure schools and academies, they must ensure that they will meet high standards of care. We must ensure that secure children’s homes take an approach that fulfils all of a child’s needs and that they are not seen as cash cows for the private firms who run them to make huge profits.
The amendment seeks to achieve two changes to the Bill, both of which have the potential to improve significantly the capacity of our child welfare system to meet the needs of the most vulnerable children and to keep them safe. First, it seeks to reverse the exclusion of local authorities from running secure schools, which are defined in clause 138(4) of the Bill as secure children’s homes.
Sarah Champion
I do not wish to divide the Committee. I am content with what the Minister said about profit, but I would be grateful if he could write to me about why local authorities cannot apply.
Police, Crime, Sentencing and Courts Bill (Fourteenth sitting)
Sarah Champion ExcerptsTuesday 15th June 2021
(4 years, 8 months ago)
Public Bill CommitteesRead Full debate Police, Crime, Sentencing and Courts Act 2022 View all Police, Crime, Sentencing and Courts Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 15 June 2021 - (15 Jun 2021)
Chris Philp
I will follow your direction, Sir Charles, by saying just a few words on this clause, which is relatively straightforward and, I think, pretty inoffensive.
Clause 130 simply creates a requirement for probation officials to consult key local and regional stakeholders on the delivery of unpaid work. Unpaid work—or community payback, as it is sometimes known—combines the sentencing purposes of punishment with reparation to communities. We believe that, where possible, unpaid work requirements should benefit the local communities in which they are carried out. Nominated local projects are already popular with sentencers and the public, but there is currently no requirement for probation officials to consult stakeholders on the design or delivery of unpaid work, so members of communities and organisations within particular local areas that are best placed to understand the impact of crime and what might be useful in the local area do not necessarily have their say.
Clause 130 simply seeks to address the gap by ensuring that key local stakeholders are consulted, so that they can suggest to the probation service what kind of unpaid work might be useful in their local area. We hope that local community groups and stakeholders come up with some good ideas that the probation service can then respond to. That seems to be a pretty sensible idea. The probation service in some areas may do it already. This clause simply creates a proper duty, or a requirement, for the probation service to do it. Of course, if we understand the needs of local communities and their thoughts, we can improve the way unpaid work placements operate to support rehabilitation and also help the local community. If the local community can visibly see offenders doing unpaid work in their local area, whether it is cleaning off graffiti, cleaning the place up or whatever else it may be, that will, we hope, demonstrate that the programme is giving back to and improving the local community, but delivering a punitive element as well.
Chris Philp
I was about to conclude, but of course I will take the intervention.
Sarah Champion
When I used to run a children’s hospice, we had offenders under probation supervision come in. They were meant to be doing gardening at the children’s hospice, but instead they sat around smoking cigarettes. We kept on raising that with the probation worker, because we had invited the offenders there to give them a second chance, to help with their rehabilitation, to enable them to contribute to the community and so on. But the probation officer said, “What do you want me to do? I can’t beat them; I can’t make them work, but they have to come on these schemes.” Could the Minister give some examples of how the probation service will have the resources and the influence to ensure that people who are out in their local community are actually—
The Chair
Order. This is meant to be an intervention, not a speech. The hon. Lady is entitled to make a speech and could have made a speech, but can we treat this as an intervention?
Chris Philp
The hon. Lady makes a very good point. First, I am extremely disappointed and somewhat shocked to hear that people who were supposed to be doing work at a hospice in Rotherham in fact sat around smoking cigarettes. That is obviously shocking and not what the orders are supposed to be about. The hon. Lady says that the probation officer shrugged their shoulders and said, “Well, what can I do about it?” Of course, if the person, the offender, was not doing the work that they were supposed to be doing, that would amount to a breach of the unpaid work requirement, and they could be taken back to court to account for their breach, so I am extremely disappointed by the attitude of the probation officer that the hon. Lady just described.
The hon. Lady asked about resources. Extra resources are going into the probation service for it to supervise exactly these kinds of activities, and I would expect them to be supervised and policed properly. I will certainly pass on her concern to the relevant Minister. I have already made contact about fixing a meeting for the hon. Lady and the Prisons Minister that we talked about in this morning’s session, in relation to victims being consulted about probable decisions. The same Minister, my hon. Friend the Under-Secretary of State for Justice, is responsible for the probation service as well—I am just adding to his workload. I will raise it with him, but I would certainly urge the hon. Member for Rotherham to raise this issue in the same meeting, because I know that the account she just gave will concern my hon. Friend as much as it concerns me.
Alex Cunningham
I thank the Minister very much for that—it will, of course, be on the record, which I am very pleased to note. Before I get into my speech, I would like to thank Transform Justice and the Alliance for Youth Justice for the extremely helpful work they have done on this part of the Bill. I also thank my hon. Friend the Member for Hove (Peter Kyle), the former shadow Justice Minister, who worked extremely hard on these particular issues. I am grateful to him.
Clause 131 amends the legislative threshold for remanding a child to custody. It will mean that remand to youth detention accommodation can be imposed only in the most serious cases, where a custodial sentence is the only option and the risk posed by the child cannot be safely managed within the community. It will introduce a statutory duty which states that courts must consider the interests and welfare of the child before deciding whether to remand them to youth detention. It also imposes a statutory requirement for the courts to record the reasons for the decision.
First, let me say that we are pleased with the direction of travel that this clause indicates, and we are keen for the Government’s work in this area to succeed. We are in complete agreement with the Government that custodial remand should be used only as a last resort for children. However, we do think that there is scope for these proposals to go further in tightening the threshold for remanding a child into custody. I will speak more on that when we discuss our amendments.
The current youth remand provisions were introduced in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and I well remember the Public Bill Committee, where I had the privilege of serving as Parliamentary Private Secretary to Sadiq Khan, now our excellent Mayor of London, and also my good friend. By 2019, the independent inquiry into child sexual abuse noted a significant increase in the use of custodial remand for children. The Opposition warmly welcomes measures which aim to reduce the number of children remanded into custody, especially in light of the fact that in 2018/19 only a third of children remanded to custody or local authority accommodation later received a custodial sentence.
Our concerns about the use of custodial remands for children are compounded by the extreme racial disproportionality on remand, and the record proportion of children in custody who have not yet been tried in court.
Against the backdrop of the record court backlog and the waiting times for trial, there could not be a more opportune moment to address these issues. We particularly welcome the introduction of the statutory duty to consider the welfare and best interests of the child. We believe that, while these proposals can go further—I know that the Minister will listen carefully to our proposals shortly—these changes will help to reduce the number of children who are unnecessarily remanded to custody, so we are pleased to support them.
However, there are a couple of points on which I would welcome the Minister’s thoughts. Has he any further information to share with the Committee on his Department’s considerations of the impact that police remand has on custodial remand? Are there any plans to address that? Research by Transform Justice shows that police remand, where the child is detained by the police until court either in a police cell or in a local authority PACE bed—under the Police and Criminal Evidence Act 1984—is a driver of custodial remand. Transform Justice explains that point:
“This is because any child remanded by the police has to be presented in court within 24 hours, meaning Youth Offending Team staff often don’t have enough time to develop a bail package that will satisfy the court. Children who appear from police custody also usually appear in the secure dock, which can bias courts to view the child as more ‘dangerous’ and therefore more suitable for custodial remand.”
The criteria for police remand are spelled out in section 38 of the Police and Criminal Evidence Act and are very different from those used by the court for remand. In fact, the criteria for police remand of children are almost identical to those for adults, unlike the child-first approach taken in so many other areas of the justice system.
We know that the police remand more children than the courts. Of the 4,500 children who appeared in court from police custody in 2019, only 12% went on to be remanded by the court. Some 31% of those remanded by the police went on to be discharged, dismissed or have their case withdrawn, while 37% went on to get a fine or community sentence. The figures illustrate that police use of remand is seriously out of synch with the courts already. This clause may further widen that gap.
Is the Minister not concerned that the police may continue to overuse post-charge detention, undermining the positive efforts of the clause to reduce unnecessary custodial remand for children? Will the Government consider updating the police remand criteria, so they are in line with the new court remand criteria, to ensure consistent decision making across the whole criminal justice system?
I am greatly supportive of the provision in the clause that requires courts to record their reasons for remanding a child, not least because it will provide valuable data on the use of remand, which will enable us to continue to make improvements in this area. For that to be most effective in informing future policy decisions, we would need to have some sort of centralised monitoring system. Will we have such a system? It would mean that the need to record reasons would not only focus the mind of the court in a specific case; it would also benefit the system as a whole, as each case can inform our ongoing learning process about the use of remand and its effectiveness. Has the Minister considered the possibility of such a centralised monitoring system?
It has been suggested that the obligation on the court to record reasons would be most effective if courts had to specify why non-custodial alternatives were deemed unsuitable and how each of the custodial remand conditions has been met. Is that the kind of detail that the Minister envisages the obligation should entail? I am sure we all agree that it would be helpful for that level of information to be provided, so I am interested to hear the Minister’s thoughts.
Turning to the amendments, as I said earlier, the reforms to the threshold for remanding a child in custody are welcome, but there are a couple of areas where we believe they should go further. The Opposition amendments, if adopted, would get us closer to the goal of custodial remand being used only as a truly last resort.
Amendment 128 seeks to tighten the history test by defining a recent history of breaching bail or offending while on bail as having been committed within the last six weeks. The clause currently makes provision to amend the history condition so that the previous instances of breach or offending while on bail must be “significant”, “relevant” and “recent”. In order to reduce the number of children held unnecessarily on remand, it would be helpful to amend the clause so that there is a clear definition of “recent”.
In defining recent, we have to be mindful of what that means to a child. As the Alliance for Youth Justice notes:
“If we are to take a child-centred approach, we must consider how children experience time, and recognise the well-established principle that children change and develop in a shorter time than adults.”
The Youth Justice Board for England and Wales has recommended that “recent” be no longer than within a six-week period. I hope that the Minister will agree that clarity on that point would be of great assistance to the courts. I would be interested to hear from him what discussions his Ministry of Justice colleagues have had regarding defining a time limit for this condition.
Amendment 129 is a straightforward amendment to the necessity condition that would again help achieve the aim of using custodial remand for children only as a last resort. Although we welcome the strengthened wording of the necessity condition included in the Bill, which would require remand to be used only when the risk posed by a child cannot be safely managed in the community, we share the concerns of the sector that the benefits arising from this change may be undermined by its drafting. The amendment would therefore tighten and strengthen the wording. Transform Justice says that these benefits of the current proposed change to the necessity condition
“will be undermined by the loose wording of one of the other necessity conditions: that remand to YDA is necessary to prevent further imprisonable offences. This condition is highly subjective and casts a wide net, which may be widened further by youth sentencing provisions elsewhere in the bill.”
We share the concern expressed by the Alliance for Youth Justice that
“the latter part of the condition (to prevent the commission of an imprisonable offence) sets such a low threshold for meeting the Condition as to render the first threshold (to protect the public from death or serious personal injury) somewhat redundant.”
The amendment would tighten the latter part of the condition by ensuring that it applies only to serious imprisonable offences, which we think better reflects the intention of the clause.
Finally, amendment 130 would compel the court to record the age, gender and ethnicity of a child remanded in custody in order to provide better data on remand, particularly on disproportionality. We believe that this could be a helpful tool in addressing the deeply concerning and increasing levels of disproportionality at this point in our justice system. The numbers beggar belief. Nine out of 10 London children who are remanded are from black, Asian and minority ethnic communities. A deeply comprehensive report that was published by the Youth Justice Board in January shows that race alone is a factor in remand outcomes for children. The researchers gathered data on thousands of English and Welsh cases, and information provided in practitioner assessments. Even when other related factors were controlled for mixed ethnicity black children, they were, as the Youth Justice Board notes,
“still more likely to be remanded in custody and, if not remanded, more likely to be subject to restrictions on bail.”
This is a serious injustice in our system that needs to be urgently addressed. More needs to be done than this amendment makes provision for, but it would be a helpful tool in breaking down the disproportionate outcomes that we are seeing. The amendment would at the very least provide accurate data to help understand this disparity, in line with the “explain or reform” principle outlined in the Lammy review, which I think is an eminently sensible step in the right direction. I hope that the Minister agrees and look forward to hearing his thoughts. I would also be grateful if he could share with the Committee any other initiatives his Department is working on to address this flagrant disproportionality in youth remand.
Sarah Champion
I fully support the arguments made by my hon. Friend the Member for Stockton North on the amendments. I have a fundamental concern about remanding children. It impacts on them disproportionately in terms of their future outlook, opportunities and potential. We see within the remand youth justice system some of the highest levels of disproportionality in the criminal justice system. Although Labour Members welcome the measures in the Bill to tighten the tests that the courts must satisfy to decide whether to remand a child in custody, we still have concerns about this section of the Bill.
We agree with the policy to encourage the courts to impose a custodial remand only when absolutely necessary while ensuring the public remain safe, but as my hon. Friend stated, there are real concerns about the overrepresentation of black, Asian and minority ethnic people, who make up only 12% of the UK population but half the youth prison population. I would be much more comfortable if we were using the Bill to look at the reasons for that disproportionate make-up, rather than at further punitive measures. We have to take steps to ensure that all people, particularly all children, can reach their potential. I am very mindful of the fact that the literacy rate of the prison population is so much lower than that of the rest of the population. Why are we not investing more to address those underlying issues?
Alex Cunningham
Secure children’s homes accommodate boys and girls aged 10 to 17 assessed as particularly vulnerable. As well as children held on justice grounds, secure children’s homes accommodate children detained on welfare grounds for their protection or the protection of others. The explanatory notes state that they
“currently rely on inherent powers to make arrangements for the ‘mobility’ of children detained in such accommodation to help address their offending behaviour and to support the integration of children back into the community at the end of their sentence. Clause 137 would provide a statutory power for the temporary release of children detained in SCHs. The Secretary of State or the registered manager of the home would be able to temporarily release a child to whom the clause applies. Temporary release under this clause could be granted under conditions. The Secretary of State and registered managers would have concurrent powers to recall children temporarily released…If the period for which the child is temporarily released expires or if the child has been recalled, the child would be deemed to be unlawfully at large.”
Overall, we are supportive of the Government’s proposals in this area and recognise that a good balance has to be struck between allowing temporary release of children from secure children’s homes to support their reintegration into society, and close monitoring of children on temporary release for risk management purposes.
The Opposition understand that temporary release is an important part of the rehabilitation process for children sentenced to custody, and that some child sentence plan objectives will require them to attend meetings or participate in activities outside the secure establishment. As the Youth Justice Board notes in its briefing,
“Allowing children to be released temporarily supports their constructive resettlement into their community both in maintaining family ties and allowing children to start or maintain education placements.”
While the clause is effectively just putting into statute practice that is already in place, we are pleased to see the Government conferring authority for these decisions and processes to the secure school provider, as they will be best placed to support the child in question.
Research published by the Department for Education comparing children on justice placements and those on welfare placements in secure children’s homes concluded that children on justice and welfare placements are fundamentally the same children. The research found that the level of risk posed by individual children was not related to whether they were on a justice or welfare pathway. The report examined whether there was a need to separate children on justice and welfare placements, but concluded that, rather than separating them, if anything the children would benefit from greater integration. While secure children’s homes managers already have powers under section 25 of the Children Act 1989 to consider and approve temporary release for children on welfare placements, we are pleased that the new provisions will put those managers in the same position for sentenced children on justice placements.
We note the concerns of the Howard League, however, that the clause applies only to children who have been sentenced and therefore excludes children who are held in secure children’s homes on remand from being able to access temporary release. The Howard League points out that this change will therefore create a disparity between children who are in secure children’s homes and children who are in secure training centres. Rule 5 of the Secure Training Centre Rules allows children who are on remand to be temporarily released. It explains that unless temporary release also applies to children on remand in secure children’s homes and schools,
“there is a risk that this will undermine the ‘seamless service’ between custody and the community which the Government envisions for secure schools”
We agree with the Howard League that all children remanded to custody should have access to temporary release where appropriate, as they do in secure training centres.
The Bill’s fact sheet on this provision says temporary release is “not a relevant factor” for children on remand. I find this surprising given that we know that, as a result of court delays, children are sometimes subject to quite lengthy custodial remands. The Alliance for Youth Justice further points out:
“introducing new legislation which restricts temporary release in Secure Children’s Homes to sentenced children would be detrimental, particularly to the development of Secure Schools, which we know have ambitious plans for transitions into the community.”
I would be interested to hear the Minister’s thoughts on this and wonder why this distinction has been maintained. Will he consider including children on remand in these provisions? It would be helpful to be reassured on that point, but on the whole we are pleased with the proposal and will offer it our support.
As we have heard, clause 138 would amend the Academies Act 2010 so that 16-to-19 academies can provide secure accommodation for the purpose of restricting liberty but only if approved to do so by the Secretary of State. On the whole, the Opposition support the principle of secure academies and we do not strongly object to these academies being run by charitable entities. But, as ever, there are some areas in which I seek the Minister’s reassurances, especially with this clause, as comprehensive information is not available from the Government.
The Alliance for Youth Justice briefing on this clause says:
“We are aware of concerns that have been prompted by this section of the Bill around the lack of clarity on the status of Secure Schools, in particular what legislation, regulation and guidance will govern and oversee their activities. It has been confirmed to the AYJ by the Youth Custody Service and Oasis Charitable Trust, that Oasis Restore, the first Secure School pilot, will be registered as a Secure Children’s Home and regulated by Ofsted. It has also been confirmed that 12-to-18-year-olds may be placed in Oasis Restore.”
There is clear discomfort in the sector about the limited information available on the plans for Oasis Restore and how the model will operate in practice. Can the Minister confirm that his Department will publish more information on this? Can he provide a timeframe for publication?
Another issue raised by the sector is that it is unclear how the introduction of secure schools fits into the long-term strategy for the youth secure estate. I understand that it is the Government’s stated intention for secure schools to replace young offender institutions and secure training centres, but we have not yet seen any proposed timeline for such changes. Can the Minister provide more information on his Department’s intended timeline for the changeover to secure schools for the Committee today?
The first secure school is being established in Medway, but I understand that children from across the UK can be sent there. Hazel Williamson put it very well in our evidence session when she said:
“As an association of YOT managers, we believe that children in custody…should be placed in small, secure units close to their homes. We do not advocate large custodial establishments where children are placed far away from their home; we would advocate small custodial units.”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 20 May 2021; c. 133, Q212.]
Can the Minister confirm that the Government’s timetable for delivering secure schools will not entail children being detained hundreds of miles from their homes while still only a small number of these establishments are available?
The Youth Justice Board has shared its concerns about the links to children entering the youth justice system from practices such as off-rolling children. Indeed, there is a high prevalence of expelled children in the children’s secure estate. For instance, in 2018 in HMYOI Feltham, 89% of children had been excluded from school.
Can the Minister confirm that any academy trusts selected through the tendering process to open or run a secure school have got, as the Youth Justice Board put it
“the necessary skills, expertise, structures and ethos to support children in a secure setting”?
I know that the Howard League wrote to the Secretary of State on this issue last year, and its briefing says:
“This clause provides a legal basis for the ‘secure school’ model of youth custody: it allows academies to provide secure accommodation for their pupils if they have been approved to do so and establishes that running a secure academy is to be treated as fulfilling the charitable purpose of ‘advancement of education’ under s3(1) of the Charities Act 2011. In April 2020, the Charity Commission noted that ‘the proposed purposes of secure schools, as we understand them, do not wholly fall within the descriptions of purpose in s3(1) of the Charities Act 2011’ and that ‘we do not think the operation of a secure school can be exclusively charitable’. In November 2020, the Howard League wrote to the Secretary of State outlining the concerns that locking children up does not fall within charitable objectives. The proposal compounds this issue.”
It would be helpful if the Minister could share with the Committee his discussions with the Charity Commission, so that we all better understand the position that has been reached on this knotty issue.
Amendments 123 and 133 both relate to the inspection regime for secure 16-to-19 academies. Amendment 123 would make secure 16-to-19 academies subject to annual inspection by Her Majesty’s chief inspector of prisons, and amendment 133 would make them subject to annual inspection by Ofsted. I understand that the current inspection framework will come from Ofsted. However, I am sure the Government would agree that a secure school is a very different entity from a standard school. We therefore believe that such schools would benefit from a different inspection regime, to ensure that no aspects of their running are overlooked. Although it is true that it is not a prison, a secure school is still part of the secure estate, so there is expertise that Her Majesty’s Inspectorate of Prisons can provide. Indeed, when Ofsted does inspections on the secure estate, HMIP is part of the broader inspection team. We think the inclusion of HMIP is important and should be put on a statutory footing. I hope the Government agree that it would add value to the monitoring and running of the secure school system as it is rolled out, so I hope they will be able to support our amendment 123.
As I outlined in my earlier speech, there is still much that is unknown and has yet to be decided in relation to secure schools. For that reason, we think it would be important for there to be regular inspections, especially in the early years of operation. That is why our amendment 133 provides for annual inspection by Ofsted, to ensure that nothing slips through the cracks. Furthermore, we are entrusting such schools with the care of some of our most vulnerable children at a point in their lives when positive and engaged care can have the most impact, so it is only right that the schools are subject to the most rigorous monitoring while they do so. I hope that the Government agree and can support amendment 133.
Amendment 146, which was tabled by my hon. Friend the Member for Rotherham, allows for local authorities to establish and maintain a secure 16-to-19 academy, and to exclude profit-making bodies from doing likewise. I am sure she will address her amendment in detail, but she has our support.
Sarah Champion
My amendment 146 is designed to ensure that local authorities are able to run secure 16-to-19 academies, either alone or in consortia, and to prevent such establishments from being run for profit. I will go into the detail of why, but, fundamentally, I do not think profit should be made from keeping our children safe. We are seeing some pretty gross examples of that at the moment.
In December 2016, the Government committed to phase out child prisons—by that, I mean juvenile young offenders institutions and secure training centres—and to replace them with a network of secure schools and children’s homes. I hope that this is not just the Government playing semantics and that they really are going to get rid of these institutions, because it is very clear, and the Youth Justice Board concedes, that secure training centres are not fit for purpose.
The Government must speed up the phasing out of secure training centres. When introducing secure schools and academies, they must ensure that they will meet high standards of care. We must ensure that secure children’s homes take an approach that fulfils all of a child’s needs and that they are not seen as cash cows for the private firms who run them to make huge profits.
Sarah Champion
I do not wish to divide the Committee. I am content with what the Minister said about profit, but I would be grateful if he could write to me about why local authorities cannot apply.
Police, Crime, Sentencing and Courts Bill (Thirteenth sitting)
Sarah Champion ExcerptsTuesday 15th June 2021
(4 years, 8 months ago)
Public Bill CommitteesRead Full debate Police, Crime, Sentencing and Courts Act 2022 View all Police, Crime, Sentencing and Courts Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 15 June 2021 - (15 Jun 2021)
Sarah Champion (Rotherham) (Lab)
Building an extra 10,000 prison cells is very costly. Does the Minister agree that investing more in rehabilitation and preventive programmes might be a better use of the money?
Chris Philp
Of course, we do believe in rehabilitation and prevention, and a lot of work is going on in that area, but we are talking about people who have been convicted of offences such as rape and murder. On Second Reading, Members made the point about making sure that particularly sexual offenders, including rapists, spend longer in prison. There were different views on how that could be achieved, but there seemed to be broad unanimity across the House that such offenders should spend longer in prison, and the clause does exactly that. However, it in no way detracts from the importance of prevention and rehabilitation that the hon. Lady mentioned a second ago.
I should say that caught in this clause are not just sexual offenders who commit offences, including rape, with a life sentence, but also the most serious violent offenders, which includes those who commit manslaughter, attempted murder, soliciting murder, and wounding with intent to cause grievous bodily harm, so I think our constituents up and down the country will welcome the fact that these serious offenders will spend two thirds of their sentence in prison and not just a half.
Provision is also made in this clause for the two-thirds release requirement to apply to those under the age of 18 who were given a youth standard determinate sentence of seven years or more for a sexual offence with a maximum penalty of life, and for the other very serious violent offences just referred to. The changes are made by inserting new section 244ZA into the Criminal Justice Act 2003 to make the necessary provisions. The measures will ensure that the proportion of the sentence reflects the gravity of the offence committed, and are intended to address long-held concerns, both in Parliament and among the public, about the automatic halfway release for serious offenders.
The two-thirds point also aligns with the release point for offenders found to be dangerous and therefore serving an extended determinate sentence, whose eligibility for release by the Parole Board commences from the two-thirds point, so it introduces consistency and coherence into the sentencing regime as well. On that basis, I commend this very important clause to the Committee.
Chris Philp
Let us move on to clause 108, which relates to a new power for the Secretary of State to prevent the automatic release of offenders serving a standard determinate sentence, where release is ordinarily automatic, and instead refer them to the Parole Board in certain, very limited circumstances.
With a standard determinate sentence at the moment, there is automatic release at either the halfway point or, for more serious offences, at the two-thirds point, as per clauses 105 and 106. Clause 108 creates a new power to allow the Secretary of State to refer a prisoner who is in custody and assessed as dangerous to the Parole Board, to decide whether or not they are safe to release. Prisoners who are serving a standard determinate sentence, for any offence, who have become dangerous or who are identified as being dangerous while they are in prison get this referral.
To be clear, we are not creating a new kind of indeterminate sentence like the old imprisonment for public protection sentences, created in 2003, in which the sentence could carry on forever if someone were considered to be dangerous. The maximum sentence originally passed by the court on conviction and sentencing still applies.
We are not overriding the sentence of the court, but we are saying that if an offender is identified as dangerous they may continue to serve their determinate sentence until its end, unless and until the Parole Board, after the release point, decides that they are safe to release. It means that if someone becomes dangerous, they do not automatically get released early.
Sarah Champion
The Minister will see from an upcoming amendment that I am interested in this clause. Can he give some clarification? Will he define “dangerous”? I assume that is within the prison context, as opposed to the crime being served for.
Will the Minister give some details on when and why the Secretary of State might intervene? At the moment, depending on the Parole Board’s decision, the Secretary of State already has 21 days to intervene. Will he explain what the clause will bring to the table?
Chris Philp
I am happy to answer all those questions, which are good questions. The 21-days provision that allows the Parole Board to think again has nothing to do with this; it is completely separate. It is a live issue in the terrible Pitchfork case, which Members will be aware of.
The provision in which the Parole Board takes a decision to release and the Secretary of State may ask it to think again, within 21 days, applies to any Parole Board release and is a matter currently being considered. That is wholly separate from this provision. It relates to any Parole Board release decision and was prompted by the awful Worboys case two or three years ago.
Here we are talking about where a prisoner is serving a standard determinate sentence and would ordinarily be released automatically without any Parole Board involvement at all, and the Secretary of State says, “Well, I think actually they are now dangerous”—I will come on to what that means in a minute—“and instead of automatic release, can the Parole Board look at the case and decide whether they are suitable for release, once their release point is passed?” That is different from the 21-days reconsideration.
The hon. Member for Rotherham asked for the definition of becoming dangerous and whether it means dangerous in a prison context. The answer is no. It does not mean dangerous in a prison context; it means dangerous to the public. One might ask what “dangerous to the public” means. The definition of “dangerous” in this context has a high threshold—we anticipate this provision will be used extremely rarely; it is not going to be a commonly used provision. It is that an offender is at “significant risk” of causing “serious harm” to the public by committing murder or one of the serious offences listed in schedule 18 of the Sentencing Act 2020, such as manslaughter, rape or terrorist offences, and that the risk cannot be sufficiently managed through the use of licence conditions.
If a referral is made, the Parole Board will consider it. It may say, “We will release them anyway” or, “We think there is a danger; we are going to keep them inside.” It can only keep them inside prison until the end of the original sentence that the court handed down.
I will give an example not caught by our new provisions. To take the example the shadow Minister used, let us say there is a six-year sentence for kidnapping. Currently, there would ordinarily be automatic release after three years. If for some reason there is evidence that the person who has been committed for kidnap might commit a terrorist offence or might kill someone, the Secretary of State can refer and the Parole Board will then consider, “Are they dangerous? Can we release them?” If it decides to keep them in prison, they can be kept in prison up to the six years of the original sentence, but no later. During the final three-year period in my example, the Parole Board will look at the case periodically.
If, after reference to the Parole Board, the prisoner thinks there has been an unreasonable delay—“I should have been released after three years, but it is now three years and six months and no one has looked at it; this is unreasonable”—they can refer the matter to the High Court to get it sorted out. There is a safety mechanism so that there cannot be an unreasonable delay.
Sarah Champion
It was not my intention to make a speech on this clause, but more questions are being raised than answered, and I hope that the Minister will be able to answer a few of them.
I share the concerns raised by my hon. Friend the Member for Stockton North, and there are many questions, but I have always had a problem with the idea of someone being given a sentence and serving only a third or two thirds of it. I would much rather that it were clear that a sentence was for this amount of time in prison and that amount of time under licence in the community, because I think that would give clarity. My concern about the clause is that it almost creates a hierarchy of sentencing, which I find confusing.
I know well only the behaviour of sexual offenders, and I am yet to find any form of rehabilitation or punishment that effectively changes their behaviour, so I could argue persuasively here that they will always be a danger and that there is always a potential risk. I also believe, however, that we need a justice system that is fair and transparent so that we can follow it, and I am not sure that the clause would allow us to do that. I am concerned that if someone is released at the end of their sentence after serving a full term, the probation, rehabilitation and limits that a licence would put around them might not be there, meaning that their transition into the community is abrupt and does not have the level of support that is needed to curb some people’s behaviour.
I am concerned that the Minister did not once mention whether victims would be consulted. My amendment 145 deals with that. Who could be better than victims and survivors to say whether a person is a danger and to influence the decision of the Lord Chancellor? I am also concerned that there may be subjectivity in decisions made by this Lord Chancellor and future Lord Chancellors—that cannot be allowed to happen. I really hope that the Minister will give some reassurances on the points that I have raised, because at the moment the clause would not be a successful one.
Hywel Williams
I want to raise one particular point. Is the Minister aware of the Welsh Government’s recently published race equality action plan, which states its commitment to developing a race equality delivery plan that will address the over-representation of black, Asian and minority ethnic people in the criminal justice system? Indeed, in Wales, more black and minority ethnic people are in prison than elsewhere in the United Kingdom. Does he share my concern that this and other clauses might militate against the policy of the Senedd in Cardiff, a legislative public body that has been democratically elected?
The Chair
Before we move on, I remind the Committee that it was notified to the Chair that the Whips wish to get to clause 138 by close of play today. We are moving at glacial pace. I know these are important matters but, if we continue to move at that pace, the Whips may want to recalibrate their lofty ambitions over lunch.
Clause 109
Power to make provision for reconsideration and setting aside of Parole Board decisions
Sarah Champion
I beg to move amendment 145, in clause 109, page 98, line 41, at beginning insert—
‘(1) In subsection (3) of section 239 of the Criminal Justice Act 2003 (the Parole Board), after 3(b) insert—
“(c) the views of the victim or victims of the crime to which the case relates””
This amendment would amend the Criminal Justice Act 2003 to ensure victims/survivors are consulted in parole decisions which will affect them.
I have tabled the amendment because two survivors have raised this as an issue with me this year. I have briefly spoken to the Minister because I am not sure that the amendment will achieve the job I hope it will. By raising it, I hope the Minister will work with me to come up with a solution, because we have a real problem here.
The amendment aims to amend the Criminal Justice Act 2003, to ensure that victims and survivors are consulted on parole decisions that affect them. Currently, victims of crime, such as child abuse, can submit a victim impact statement before it is decided whether the abuser will receive parole. Victims should be informed when their abuser is released from prison or is on parole. However, too often that process is not carried out and victims are unaware that their abuser has been released from prison, or has been moved to a different category of prison.
The all-party parliamentary group for adult survivors of childhood sexual abuse found in its survey that as many as 75% of victims are not informed about their perpetrator being released on parole. One survivor who contributed to the report said:
“I found out my abuser was living nearby. In a town I visited regularly with my children for their sports club. And nobody bothered to inform me. I found this completely unacceptable.”
The shock and fear of finding out unexpectedly can be incredibly distressing for victims. Another survivor said:
“I was petrified because they gave him my name and all he’s got to do is look on the electoral roll and he could find me.”
Including victims and survivors in the parole decision-making process would let them understand how and why decisions are made. In discussion of the previous clause, the Minister presented an argument around the word “dangerous” and what makes an offender dangerous. Who better to feed in that information to the Parole Board’s decisions or the Lord Chancellor’s decisions than the victims and survivors themselves? Furthermore, allowing survivors to contribute to the process would ensure their voice is heard and the terror they have experienced in the past will not be relived—if they are listened to.
My amendment would ensure the Parole Board must consult with the victim during any decisions that would give recommendations resulting in parole for the offender. It would amend the Criminal Justice Act 2003, so the Parole Board must take account of the views of the person to whom the case is related. If it becomes a legal necessity for the Parole Board to consult with the victim, the potential for them to not be informed would not be an issue.
In 2019, the Government pledged to allow victims into parole hearings and, in 2020, they also consulted on making some parole hearings open to victims. Both of those followed the Worboys case, which exposed the failures of the parole process. At the time, the Government said they wanted to increase survivors’ ability to challenge release decisions if they felt the decision was flawed. That would save time and resources by consulting with the victim before the decision is made. The current system is not working for victims. We need a justice system that puts victims at the heart of its decisions.
This is not me just making a speech. As I said earlier, this is because I have two cases at the moment where the parole process has completely failed. Both relate to Rotherham survivors of past historic child sexual exploitation, and the first case is a survivor who I will call Elizabeth. The perpetrator was sentenced to nine years for two counts of rape of a girl under 16 in 2018. They were transferred after two and a half years to a category D prison, which we would view as an open prison. They were also told they could have day release but for covid-19.
The victim had signed up to the victim contact scheme, which should have ensured she was notified and provided with information about key stages in the offender’s sentence, including for those cases where release falls to the Parole Board. She should have been consulted on the timing of the Parole Board’s review and whether the offender was released or moved to open conditions. All of that should have been relayed to her. The victim should have been notified that the transfer to open conditions was being considered, and then she should have been told of the outcome. At the moment, victims have only a right of notification, and notification took place, in this case, after the decision was made.
I raised the issue with the Minister, who responded, explaining the legal position that, in accordance with legislation at the time, the offender is required to serve half of the sentence in custody, with the remaining period served in the community on licence and subject to supervision by the National Probation Service. During the custodial period, offenders must be held in the lowest security conditions necessary to manage the safety of their identified risk of escape or absconding, the risk of harm to the public and the risk of any serious disorder. Those are the considerations, not the impact on the victims.
The errors in the case, as identified by the Minister, were that the prison is responsible for managing a case. The prison offender manager should have contacted the victim liaison officer directly to let them know that the move to open conditions was under consideration, but they failed to do so. The senior manager has spoken to the staff at the prison, and a reminder has been sent to all of the staff reminding them to follow the correct procedure. The requirement has been raised with the National Probation Service regional implementation managers to take forward and ensure other prisons follow the correct process.
I will quote from the letter from the Solicitor General dated 21 October 2020.
“The reason for informing victims before the decision is taken, is to ensure that victims are kept updated with developments, so that a move to open conditions does not come as a total shock, and also to ensure the prison is aware of any exclusion zones which the victim has requested. This can help to inform which open prison an offender is moved to. I should like to underline that the Government shares the concerns about offenders who commit very serious crimes, and yet are released automatically at the halfway point in their sentence. We have taken action to address this through legislation we introduced earlier this year. We are committed to ensure that serious offenders spend the time in prison that reflects the gravity of their crimes and intend to bring forward proposals to further strengthen the law in this area”—
the Bill that we are all serving on.
So we got an apology, commitments and managers and staff spoken to. It was never going to happen again, and then, lo and behold, two months later, I got a near identical case—case B. The perpetrator was sentenced to nine years on three counts of sexual activity with a child in 2018. The offender was transferred to a category D prison in February 2021—again, two and a half years after the sentence—but the victim was not notified until April, three months after the offender was moved to a category D prison. Again, the victim was signed up to the victim contact scheme, but was not notified until after the transfer had taken place.
Again, I contacted the Minister, and in January 2021 the prison offender manager told the victim liaison officer that the offender had been assessed as suitable for open conditions in October and that an open prison had confirmed they would accept the offender, but the date of transfer had not been finalised. The POM should then have informed the victim liaison officer when the open conditions were considered, not just about the decision. Once the victim liaison officer was notified, the victim should have been notified, but that did not happen. The victim liaison officer asked to be notified when the transfer had taken place, but the prison, whose responsibility this was, failed to inform her. The victim liaison officer became aware themselves only in April when the community offender manager made inquiries about the conditions that the victim would wish to request for temporary release of the prisoner who raped her three times when she was a child.
Something is going horribly wrong. We have a system in which, twice in six months, victims of the most serious crime have been let down by the state. The system that the Minister currently has in place is not working, so how can we make sure that this does not keep on happening again and again? I am one MP and I have had two cases in the past six months, so it concerns me that this is happening all over the country, but survivors would not think to go to their MP to get it raised. The transfer of offenders guilty of serious offences to open conditions after just a quarter of their sentence is deeply wrong. The thought of an offender being back in the community is deeply traumatising for victims who have already been through both the crime and also the ordeal of a trial only comparatively recently. Notification is vital, as should be consultation. However, consultation is not offered and the system for notification is clearly dysfunctional.
As I said to the Minister, I am not sure that my amendment is the correct amendment, but I really need some reassurances to make sure that victims are both notified and consulted. To refer back to the previous clause, how are we meant to know whether an offender is dangerous and a risk unless we actually hear from the people who have been subjected to the horror that that person can wreak?
Alex Cunningham
I congratulate my hon. Friend the Member for Rotherham on tabling amendment 145, which has been crafted with her characteristic care and has won support from colleagues across the House. Contrary to what she might think, I think it is the right amendment. The Opposition fully support the principle behind amendment 145 that victims and survivors deserve to be at the heart of criminal justice and, in this case, to be consulted on decisions made by the Parole Board that affect them. The amendment is a simple one, and I will not detain the Committee by repeating the words of my hon. Friend the Member for Rotherham on the technical aspects of how it would work
Chris Philp
I will take that as a check on the reins. I have nothing further to say on amendment 145, Sir Charles.
Sarah Champion
I am grateful for the Minister’s comments. I have worked extensively with the Government’s victims team and it is fantastic. The victims code is great, but only if it is implemented. The problem we find is that people are not notified when the offender is coming up for parole consideration, so their rights are not activated because they do not know that that situation is occurring.
I accept his generous offer of meeting the hon. Member for Cheltenham, which I will take up. With that reassurance, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Chris Philp
I beg to move amendment 132, in clause 109, page 99, line 11, leave out
“resulted from a clear mistake”
and insert
“it would not have given or made but for an error”.
This amendment ensures that the language used in the new provision about when the Parole Board can set aside decisions aligns with a recent High Court judgment which ruled on the circumstances when a Parole Board decision can be revisited and makes a drafting clarification.
I am sorry to have spoiled the anticipation by jumping early. May I speak to clause 109 as well?
Police, Crime, Sentencing and Courts Bill (Tenth sitting)
Sarah Champion Excerpts(4 years, 8 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Victoria Atkins
Very much so. This is about ensuring that the rights that we have spoken about so far are protected, and that the integral balance of the social contract is maintained. My right hon. Friend is absolutely right.
The police already have the power to impose any necessary conditions on marches. If it is acceptable for the police to impose any such conditions on processions, as they have been able to do since the 1930s, it is difficult to see the basis for the Opposition’s objection to affording equivalent powers to impose conditions on an assembly when it presents an equivalent public order risk.
In his evidence, Chief Constable Harrington said words to this effect—my apologies to Hansard: “We asked for consistency between processions and assembly, which this Bill does.” The police will impose those conditions only where they are necessary and proportionate, complying with their obligations under the Human Rights Act 1998. In fairness, Chief Constable Harrington set out the care and training that the police receive to ensure that they can carry out their obligations carefully.
Clause 56 closes the loophole in the offence of failing to comply with a condition attached to a procession or assembly. When the police impose conditions on a protest to prevent serious public disorder, serious damage to property or serious disruption to the life of the community, they ensure that protesters are made aware of those conditions through various means. Those can include communicating with protesters via loudspeakers or handing out written leaflets.
Some protesters take active measures, such as covering their ears and tearing up leaflets without reading them, to ensure that they are not aware—or to complain that they were not aware—of the conditions being placed. Should they go on to breach the conditions, they will avoid conviction as, under current law, an offence is committed only if a protester knowingly fails to comply with the condition.
Clause 56 will change the threshold for the offence to include where a protester ought to have known of the conditions imposed, closing the loophole in the current law. That is a commonly used fault element in criminal law—indeed, I note that the hon. Members for Stockton North and for Rotherham use it in new clause 23, which provides for a new street harassment offence. The police will continue to ensure that protesters are made aware of the conditions, as they currently do. The onus on the prosecution would change from having to show that an individual was fully aware of conditions, to showing that the police took all reasonable steps to notify them. As I said earlier, the standards and burdens of proof apply, as they do in any other criminal case: it is for the Crown to prove the case beyond reasonable doubt.
This particular proposal was examined by the policing inspectorate and it is again worth quoting from its report in March. It said:
“Our view is that the fault element in sections 12(4) and (5) and sections 14(4) and (5) of the Public Order Act 1986 is currently set too high. The loophole in the current law could be closed with a slight shift in the legal test that is applied to whether protesters should have known about the conditions imposed on them. On balance, we see no good reason not to close this loophole.”
The clause will also increase the maximum penalties for offences under sections 12 and 14 of the Public Order Act 1986.
Due to the increasingly disruptive tactics used by protesters, existing sentences are no longer proportionate to the harm that can be caused. Organisers of public processions and assemblies who go on to breach conditions placed by the police, as well as individuals who incite others to breach conditions, will see maximum custodial sentences increase from three to six months. Others who breach conditions will see maximum penalties increase from level 3 to level 4 on the standard scale, which are respectively set at £1,000 and £2,500.
Sarah Champion (Rotherham) (Lab)
Can the Minister give an example of an occasion when the current sentence has not been proportionate, in her opinion? Is she looking at custodial sentences and considering the impact they would have on the courts and on the Prison Service?
Victoria Atkins
The custodial aspect has been increased from three months to six months in relation to organisers of public processions and assemblies who go on to breach conditions, as well as those who incite others to breach conditions. The sentence in relation to the fine is for those who breach conditions. They go in a different category from organisers and those who incite others to breach conditions.
I do not have any examples to hand immediately, but I imagine some will find themselves in my file in due course. We are looking at maximum sentences, but it is still for the independent judiciary to impose sentences in court on the facts of the case that they have before them. That is another safeguard and another check and balance within this legislation. It will be for the judiciary to impose individual sentences, but it is right that Parliament look at the maximum term.
Victoria Atkins
Again, I point to the disruption and to the tactics that have been developing over recent years, which have grown not just more disruptive but, in some cases, more distressing. There are examples of an ambulance being blocked from an A&E department and of commuters being prevented from getting on the train to go to work in the morning by people who had attempted to climb on to the train carriage. We are seeing more and more of these instances, so it is right that the maximum sentence is commensurate.
If protesters feel that such measures are disproportionate, they will presumably put that defence forward in court. It will be for the Crown to prove its case beyond reasonable doubt and for their counsel to mitigate on their behalf. We are trying to show the seriousness with which we take these small instances, where the balance between the rights of protesters and the rights of the community that is not protesting is disproportionate within the checks and balances that we have already discussed in the course of this debate.
I turn now to the measures relating to noise. The provisions will broaden the range of circumstances in which the police may impose conditions on a public procession or a public assembly to include circumstances where noise may have a significant impact on those in the vicinity, or may result in serious disruption to the activities of an organisation. These circumstances will also apply to single-person protests.
The hon. Member for Rotherham asked whether the noise provision was London-centric, with the biggest protests happening in London. As I said earlier, one would not want to assume that some of the protests that we have seen on the news could not happen outside London, as with the “Kill the Bill” protests in Bristol. It is right that we have clarity and consistency in law across the country so that if a group of protesters behaved in the way people appear to have behaved in the Bristol protests—injuring many, many police officers who were just acting in the line of duty—one would expect the law to apply as clearly in Rotherham as in central London.
Sarah Champion
I thank the Minister for her clarity on that. I completely support her point when violence is being done or emergency services are being blocked and the disruption is in no way proportionate to the nature of the protest, but I would like her to give some clarity on the issue of noise. Is it a decibel thing? Is it an irritation thing? Who decides what the irritation is? What is and is not acceptable? Would the threshold be lower in a small village because noise would not normally be heard, whereas in a big city with lots of industrial sites it would be a lot higher? It is that subjectivity that I put to the Minister.
Victoria Atkins
That is precisely why we are introducing an objective test in clause 54(3). The hon. Lady will see the wording:
“For the purposes of subsection (1)(ab)(i), the noise generated by persons taking part in a public procession may have a relevant impact on persons in the vicinity of the procession if—
(a) it may result in the intimidation or harassment of persons of reasonable firmness with the characteristics of persons likely to be in the vicinity.”
That is consistent with other parts of the criminal law. The wording continues:
“or (b) it may cause such persons”––
that is, persons of reasonable firmness––
“to suffer serious unease, alarm or distress.”
We have been very mindful of trying to help the police because it would be a matter for the police to weigh up during a procession, assembly or one-person protest or before one starts. It would be for the senior officer to make that assessment, but it is an objective test.
I hope that the hon. Lady will not mind my raising it, but the example she gave of the impact that hearing a drill had on her personally was her personal, subjective experience; we are saying that this would have to be an objective test—the reasonable firmness of people in the vicinity of that noise.
Sarah Champion
Let me give an example that I am sure everyone in this room will have experience of, as I have. An MP might be speaking at a demo or rally and a group of people feel the need to say, “See you next Tuesday” during the speech. That distresses the church group being addressed. Would that reach the threshold? Is it more of a decibel thing rather than it being directed to the MP? For example, in Rotherham the community came together to hold peaceful vigils but the far right held counter-protests in which they felt the need to call us paedophiles.
I appreciate that I am being annoying on this, but I just do not get it. These particular cases feel subjective and that is why I would like to get the clarity bedded down.
Victoria Atkins
First and foremost, the hon. Lady is certainly not being annoying; she is doing her job and her duty on the Committee. I am feeling my way here carefully because obviously Ministers should not comment on individual cases, but, on her example, in a scenario where someone is being at shouted at or spoken to as she described, there is a very good argument for saying that the person doing the shouting is committing a public order offence under the 1986 Act—that could be a section 5 offence of causing harassment, alarm or distress at the moment.
Again, I read across to other parts of public order legislation. That is why the objective test is an important one. We want first to be consistent with other public order measures. However, we recognise that there may be some instances in which an individual, for whatever reason—medical or otherwise—may have a particular sensitivity. In the criminal law, we say, “Look, we have got to deal with this on an objective basis, because it is the criminal law and the consequences of being convicted of a criminal offence are as serious as they are.” I have some hypothetical examples to give a bit of colour in due course, but, if I may, I want to complete outlining the checks and balances as written in the Bill so that everyone has a clear picture of the steps that a senior officer will have to go through to satisfy herself or himself that a condition can be imposed on the grounds of noise.
The senior officer must decide whether the impact is significant. In doing so, they must have regard to the likely number of people who may be affected, the likely duration and the likely intensity of that impact. The threshold at which police officers will be able to impose conditions on the use of noise is rightly very high. The examples I have been provided with—I am sure the Committee will understand that I am not citing any particular protest or assembly—are that a noisy protest in a town centre may not meet the threshold, but a protest creating the same amount of noise outside a school might, given the age of those likely to be affected and how those in the school are trying to sit down to learn on an average day. A noisy protest outside an office with double glazing may not meet the threshold, but a protest creating the same amount of noise outside a care home for elderly people, a GP surgery or small, street-level businesses might, given the level of disruption likely to be caused. Again, that refers to the conditions in clause 54(3) about the likely number of people, the likely duration and the likely intensity of that impact on such persons.
Victoria Atkins
Indeed. Of course, we are rightly sitting here scrutinising every single word of the Bill carefully, but a senior police officer on the ground will have had a great deal of training and years of experience as an officer working in their local communities. They will also have the knowledge of their local communities. I imagine that policing a quiet village and policing the centre of Westminster are two very different experiences, and the officers making such decisions will be well versed in the needs of their local areas. None the less, officers across the country will be bound by the terms of subsection (3)—those checks and balances I have referred to throughout—and the European convention on human rights.
Sarah Champion
I thank the Minister for being generous; it is appreciated. On the examples I supplied, her response was that the existing legislation ought to be covering the point. She mentioned a case study in which a protest could reach the threshold if there was no double-glazing. What concerns me is the organiser who could now face up to six months in jail. Are they meant to know whether properties do or do not have double-glazing, and therefore instruct the march to be silent for a specific 100 yards, as they could otherwise fall foul of the earlier clause? I say to the Minister that I just do not like subjectivity when it comes to the law.
Victoria Atkins
The organiser in those circumstances would, of course, be liable to having a committed an offence only if they breached the order. Indeed, this is the important point. It is for the police to make that assessment. If the police have a conversation with an organiser and say, “We believe that using your very high-level amplification system in this residential street meets the criteria under subsection (3) such that we are going to impose a condition asking you to turn it down,” the organiser, or the person deemed to be the organiser, will have had that conversation with an officer, and I very much hope that they will abide by the condition. If they do not, that is where the offence comes in, and that is a choice for the organiser.
As is already the case with processions, those conversations will happen and it will be a matter for the organiser as to what course of action they choose to take. One hopes that they will take the advice and guidance of the police, adapt and therefore be able to continue with their protest in a way that meets the expectations of the local community or local businesses. I appreciate that the detail is incredibly technical, and I am trying to work through every set of factual circumstances. I understand absolutely why people want to work through those, but there are checks and balances that run throughout the Bill.
Police, Crime, Sentencing and Courts Bill (Ninth sitting)
Sarah Champion ExcerptsTuesday 8th June 2021
(4 years, 8 months ago)
Public Bill CommitteesRead Full debate Police, Crime, Sentencing and Courts Act 2022 View all Police, Crime, Sentencing and Courts Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 8 June 2021 - (8 Jun 2021)
Bambos Charalambous
Parliamentarians have a long history of protesting with many different organisations, so I encourage those who feel strongly willed to join protests, if they are appropriate. Clearly, such protests need to be within the scope of the law. If they are breaking the law, the protests need to be dealt with. That is why we have the law, and that is why the law is in place. People need to be respectful of the law in all circumstances.
Sarah Champion (Rotherham) (Lab)
I wonder whether my hon. Friend was as struck as I was when we had the witnesses in front of us and the police said that, actually, they feel that they have enough powers. They might not be used evenly across the country, which is obviously something on which we need more robust guidance. I remember that when I was very young, in ’89, I came down from the University of Sheffield to protest against the poll tax. We had big demonstrations here in London, and the police felt completely able to charge us on horses. We were kettled, and it was terrifying. Multiple arrests were made without the due process going through. In my opinion, and in the opinion of the witnesses, the police seem to have the powers. Is he as concerned as I am about where these changes are coming from, what the motivation is, and whether they are actually necessary?
Bambos Charalambous
My hon. Friend makes an excellent point. These are operational matters for the police. The police currently have the powers, and they have to be mindful of the impact of their powers on a demonstration and whether they will inflame the situation. Good policing will err on the side of caution on some occasions, but sometimes the police need to deal with a situation that they think will get out of hand. Trying to legislate for what is in the discretion of police officers is wrong, and we should actually trust the police in using their powers of discretion.
The clauses would also widen the types of conditions that the police could place on static protests. The clauses would significantly lower the legal test that must be met for the police to issue conditions on protests. The police would be able to issue conditions on protests where they are noisy enough to cause “intimidation or harassment” or
“serious unease, alarm or distress”
to bystanders. Before using their amended section 12 powers to issue conditions on a protest, the police would have to consider the “likely number of persons” affected by the protest, the “likely duration” of the impact, and the “likely intensity” of the impact. The clauses would also widen the types of conditions that police can issue on static protests to match their powers relating to protest marches. The police would also be able to issue any condition on static protests that they think is necessary
“to prevent…disorder, damage, disruption, impact or intimidation”.
Bambos Charalambous
My hon. Friend makes an excellent point. These are human rights that have been fundamentally fought for and won. We need to do everything we can to secure them, and they should not be watered down as easily as is being proposed in the Bill.
These powers would also amend the offence of failing to comply with a condition imposed by the police on a protest. It would remove the legal test that requires protesters knowingly to breach a condition to commit an offence. People would commit the amended offence if they disobeyed a condition that they ought to have known was in force. Finally, these powers would allow the police to issue conditions on one-person protests. Currently, protests must involve at least two people in order to engage police powers.
The question we raised about how to ensure that protests are peaceful and how to balance the rights of others to go about their daily business is an important one as the covid crisis eases. We know that the emergency legislation introduced by this place shifted the balance of power away from citizens and towards the state. Organisations such as Liberty, Members across the House, lawyers and others have been concerned throughout that those powers are too great. We gladly handed over those powers, which was the right thing to do, but it is crucial, as we move out of the covid crisis, that we restore those rights with equal enthusiasm.
We need to remember that covid and public health formed the context within which many of the arguments over protests during the past year have occurred. Things have not been as they normally are. Decisions about allowing protests have had an extra layer of complexity, because of the need to protect public health. Decisions have been hampered by the inevitable problems of interpreting exactly what new laws mean, or should mean, in terms of protest. The fact that covid laws did not ban protests has meant that each decision has in part been subjective, putting the police in the firing line for every decision made.
I have heard many times from the police over the past year that they have struggled to be the ones interpreting the law, without the leadership from Government that they needed. The lack of the promised direction from the Home Secretary over the weekend of the Sarah Everard vigil is a stark case in point. The police were seen to be the ones making the political decisions because there was too much ambiguity in the law. That must be a firm lesson for us going forward. It is our job to define the law in a clear way, so that the police are not the ones getting the blame for our law making.
Sarah Champion
My hon. Friend has got to the nub of the problem, which was highlighted by a number of the witnesses, as I will come to in my speech. This is ambiguous and lacks the clarity that the police need. There is no drive from the police that they need this measure, so why is it in the Bill? What is the motivation behind it? I support my hon. Friend in saying that it should not be there.
Bambos Charalambous
My hon. Friend makes an excellent point, which I will come to later. The Bill includes many ambiguous clauses that will no doubt cause lots of legal argument in the effort to define what they mean. That puts the police in an impossible situation.
A good starting point for this debate are the Peelian principles expressed by Sir Robert Peel when he set out ethical policing in the early 19th century:
“To recognise always that the power of the police to fulfil their functions and duties is dependent on public approval of their existence, actions and behaviour and on their ability to secure and maintain public respect. To recognise always that to secure and maintain the respect and approval of the public means also the securing of the willing co-operation of the public in the task of securing observance of laws. To recognise always that the extent to which the co-operation of the public can be secured diminishes proportionately the necessity of the use of physical force and compulsion for achieving police objectives.”
Bambos Charalambous
My hon. Friend again makes a very good point. The Government clearly have a desire to imprison more people, because they are embarking on a prison-building programme—I do not know whether that is part of the reason why they are introducing these powers. Good policing is using discretion, dealing with each occasion as it arises and policing in a sensitive way. Arresting people should be a last resort, albeit one that the police should use when appropriate.
To quote Matt Parr further:
“I think there are dangers and, as ever, the bar for measuring what was significant or what was serious should be a high one. We all recognise that. It should not be done on the flimsiest of pretexts. Again, it would then be open to challenge, and I think police officers would only wish to use it when they were confident.”—(Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 18 May 2021; c. 53, Q77.]
Matt Parr made some important points that should serve as a reminder to Ministers of the problems with clauses 54 to 60. He did not want a lower threshold; he wanted more training for police officers so that they can better understand how articles 10 and 11 might be adhered to. However, the clauses widen the legislation significantly. Does that not make the job of the police in enforcing the legislation more complex?
Lochlinn Parker, the head of civil liberties at ITN Solicitors, said:
“It is going to be down to police officers to try and determine a highly nebulous idea: what is annoying? Everybody is annoyed when a protest takes over the street, but lowering that [threshold] significantly is creating a situation where, if minded to, there will be very little protest that would be lawfully allowed.”
He continued:
“Police will be asked, as they frequently are by the government and the press, why wasn’t more done to stop this protest which caused disruption and problems”.
He also said:
“The political pressure on the police, and potentially their own inclinations in terms of keeping control and order, is going to come to the fore.”
Bob Broadhurst was gold command for the policing of the 2009 G20 protests and now lectures at the London Policing College. Apparently, he choked on his coffee when reading the explanatory notes for the Bill. He said:
“They’re saying protestors are now using new tactics—they’re locking themselves in, they’re gluing themselves down, they’re blocking roads. They were doing that 30 years ago.”
He went on to say:
“None of these tactics are new.”
Clifford Stott, a professor of social psychology at Keele University and expert in protest and police behaviour, argues that, although he vehemently disagrees with the proposals,
“under the Human Rights Act, the police will not be able to enforce any elements of the legislation which interfere with Articles 10 and 11 of the European Convention on Human Rights—freedom of expression and freedom of assembly and association.”
Sarah Champion
Does my hon. Friend share my concerns that the people who are absolutely set on protesting are going to do it regardless of the legislation, in that getting arrested is almost part of their MO? Does he also share my concern that the Bill will have a chilling effect on people’s right to protest, full stop? Secondly, there will be people who are, in their understanding, at completely lawful protests, and will, without any intention on their part, get caught up when the bar is lowered. A whole group of people who should not be arrested will, as my hon. Friend said, be clogging up the police system.
Bambos Charalambous
Again, my hon. Friend makes an excellent point. The lowering of the bar will mean that innocent people will be caught up in something when they have gone to protest about a perfectly valid issue that they are concerned about. They may get caught up in this unwittingly and could end up being criminalised as a result .
Bambos Charalambous
I thank my hon. Friend for his comments. Absolutely, we do not want to be a country that is seen to be oppressing its people. Those rights to protest are at first lost gradually, then quickly, so the transition from what is seen to be a democracy to authoritarian state happens very quickly and we need to be wary of that. We cannot go down that path.
Sarah Champion
I am grateful that the Foreign Secretary has been very good on protecting the right to protest internationally. It seems somewhat hypocritical that we are reducing the right to protest here while on the international stage we are advocating for it.
Bambos Charalambous
Again, my hon. Friend makes an excellent point. We cannot be seen to be criticising other Governments for the way they suppress the right to protest when we are doing the same here. That weakens our global standing and we should not go down that path.
The College of Policing has authorised professional practice, or APP, that contains 30 tactical options to deal with public disorder and protest. It is out of date. It does not include recent relevant case law or information on certain new and emerging tactical options. The college is planning a review. The inspectorate states:
“By 30 June 2022, the College of Policing, through its planned review, should bring the public order authorised professional practice (APP) up to date and make arrangements to keep it current, with more regular revisions as they become necessary. It would also be beneficial to consolidate the APP, protest operational advice and aide memoire into a single source (or a linked series of documents).”
The inspectorate notes:
“We found that forces do not do enough to share legal opinion or case law on protest policing. And officers and staff rarely use Knowledge Hub’s ‘Specialist Operational Support—Public Order Public Safety’ group… By 31 December 2021, chief constables should make sure that their legal services teams subscribe to the College of Policing Knowledge Hub’s Association of Police Lawyers group.
By 31 December 2021, the College of Policing should ensure that all Public Order Public Safety commander and adviser students attending its licensed training are enrolled in the College of Policing Knowledge Hub’s Specialist Operational Support—Public Order Public Safety group, before they leave the training event…
In making decisions about how to respond to a protest, public order commanders need to consider domestic human rights legislation. And they must also consider a patchwork of European case law. These have established precedents on issues such as how long protests can reasonably go on for, and the level of disruption that protests can reasonably cause.”
The inspectorate stated:
“Examining the gold strategies and silver plans submitted as part of our document review, we found that commanders generally showed a grasp of human rights legislation. However, we did not see evidence that they consistently considered the wider legal picture.”
The inspectorate also recommended:
“By 30 June 2022, the National Police Chiefs’ Council, working with the College of Policing, should provide additional support to gold commanders to improve the quality of gold strategies for protest policing. This support should include the creation and operation of a quality assurance process; and/or the provision of more focused continuous professional development. The additional support should ensure that gold commanders for protest operations include an appropriate level of detail within their gold strategies. This may include the levels of disruption or disorder above which enforcement action will be considered…
By 30 June 2022, the National Police Coordination Centre should revise the national post-event learning review form so that it contains a section to report on the policing operation’s impact on the community…
Forces usually have good protest-related briefing processes and commanders’ decisions generally reach the front line effectively. However, gold strategies often do not set out the limits of acceptable behaviour from the protesters. Better explanations of these limits would help officers to understand what is expected of them and empower them to take appropriate action.
Non-specialist officers receive limited training in protest policing. As a result, they often lack confidence in using police powers. Some officers are anxious about attracting complaints and being filmed in protest situations. It is important that forces provide good-quality training and briefing before deploying officers into these situations.
Forces should make better use of community impact assessments to evaluate the impact of protests on those who live in, work in or visit an area. The process should include regular reviews and updates, so the police can respond to changing circumstances. Only seven of the ten forces we inspected submitted any community impact assessments for examination, and some of those we examined were of a poor standard”.
With the covid legislation, we have seen the difficulty that rushing through new police powers can bring for the police. They have managed to do a brilliant job of enforcing the new laws, but they have faced a number of difficult decisions owing to the loose drafting of the law, and they have received criticism where they have got it wrong. The new protest powers will force the police to make political decisions about which protests they deem unlawful. That is extremely concerning and will put the police and the public in a difficult position.
Why do the Government want to make the police the gatekeepers for public protests? The Government are choosing to ignore the many peaceful protests that go ahead and are attended by police. The public order measures in the Bill risk putting the police in a trying position more often, and they risk creating more disorder and disruption. The Government should be putting the police in a position whereby the rules are not too confusing or too broad. If they do not do so, that will only create more flashpoints.
It is clear that police support for the Bill is not what the Government are saying it is. The Metropolitan police want more clarity on ways to manage very disruptive protests that go on and on, and to make sure that emergency services can get through roads. That is understandable, but the police want more clarity and certainty, which is what they said in the evidence sessions. These provisions bring the opposite. Instead of a modest reset, we have in front of us clauses that significantly widen police powers on public order.
Clauses 54 to 60 mark a substantial change in the approach to policing protest, which has the potential to be applied disproportionately and could curtail article 10 and article 11 rights that the inspectorate of constabulary is keen to protect. The police already have the powers to break up protests that cause harm, serious public disorder, serious damage to property or serious disruption to the life of a community. Many of the country’s best lawyers are telling us that the Public Order Act 1986 and the many other powers on the statute book to police protests are enough.
Bambos Charalambous
My hon. Friend is entirely correct. It is a question of proportionality, and we need to make sure that we are allowed to get here as parliamentarians, but also that protesters are allowed to air their views. It is about striking that balance. The legislation goes too far the other way, and does not strike such a balance. It is too much against the right to protest.
The reports by the inspectorate ask for modest changes, but the Government decided to go much further. The Bill targets protesters causing “serious unease”, those being too noisy and those causing serious annoyance. Clause 54 amends section 12 of the Public Order Act 1986 so that police officers can issue conditions on protest marches that generate noise, but may have significant relevant impact on persons “in the vicinity” or that may result in “serious disruption” to the activities of an organisation in the vicinity.
Sarah Champion
I do not know whether it was recorded properly, but I do not think we ever got to the bottom of what “serious noise” was. During our evidence session, a drill was going in the next room. I suffer from tinnitus and it was driving me insane. I could not concentrate and I wanted it to stop, but there are examples of protests at which I would be chanting and would think that that was acceptable. Did we ever get to the bottom of what “serious noise” was?
Bambos Charalambous
My hon. Friend makes an excellent point. I do not think that we ever did, and that is part of the problem because there will be a disparity in how the Bill is implemented, which will lead to confusion because what one person regards as noise may not be what another person regards as noise. The last thing we want is confusion when protests are being policed.
Under clause 54, noise would have to have a relevant impact, resulting in intimidation, harassment, serious unease, alarm or distress to bystanders. The vague term “serious unease” is a very low threshold for police-imposed conditions.
Sarah Champion
Owing to the areas I campaign on, I have had protests against me and that does cause me serious unease—it is horrible. They have led to death threats and all manner of things, but I would not stop people’s right to protest because we all have our rights and I find it incredibly chilling that people’s rights are going to be stopped.
Victoria Atkins
Let me make a genuine effort to help Her Majesty’s official Opposition. They are surely not saying that death threats are an acceptable form of protest. Death threats are terrifying for those who are victims. Indeed, I would say they impede democracy in this country precisely because people worry about the threats to their personal safety. I just want to clarify.
Sarah Champion
On a point of order, Mr McCabe. I think the Minister has misinterpreted what I said. I had protests against me that were rallying the crowds, which led to the exact same phraseology that went into death threats. I am saying that that was incredibly chilling and uncomfortable. Of course I wanted it to stop, but I do not try to deny people’s right to protest.
Bambos Charalambous
My hon. Friend makes an excellent point. It would be helpful if we had an idea of the definition of “disruptive noise”. If we are to pass the Bill, we should know what we are passing.
There have been problems when the police have not satisfactorily communicated conditions to protesters. Will the Minister provide the Committee with evidence to justify the proposed widening of criminal responsibility in clause 56? The HMICFRS report talked about a slight shift in the legal test on that, but what the Government propose goes way too far. Sir Peter Fahy, former chief constable of Greater Manchester police, said that the legislation includes “some really dodgy definitions” that the police are supposed to make sense of. The point of protest is to capture people’s and the Government’s attention. Sometimes protests are noisy and sometimes annoying, but they are as fundamental to our democracy as Parliament is and as the courts are.
On 6 October last year, I had the pleasure of witnessing an impressive and effective protest outside Parliament, which was organised by the Let Music Live campaign to highlight the plight of freelance musicians who received very little support from the Government during the coronavirus pandemic. The protest involved 400 socially-distanced musicians, all dressed in black, playing 90 seconds, or 20%, of Gustav Holst’s “Mars”. Not only was the demonstration eye-catching, but it used the sound and the loudness of Holst’s piece to convey the message.
The demonstration consisted of 90 seconds of sound building until it came to an abrupt stop. Would such a protest fall foul of clause 54? I fear it might, but who would be qualified to assess whether a 90-second blast of Holst’s “Mars” constituted noise that might have a “significant” or “relevant” impact on “persons in the vicinity”? The phraseology is so vague and devoid of precise meaning that it will be a legal nightmare for the police to determine what the terms “significant”, “relevant” and “impact” mean for the purposes of the Bill.
Sarah Champion
I wonder whether the bar would be set at exactly the same level if the music were not classical, but heavy metal. Are we getting into a really subjective area here?
Bambos Charalambous
My hon. Friend is absolutely right that this will be very subjective. I used to play rugby, and this is what we would have called a hospital pass. It is going to put the police in an impossible situation, and they will have to make judgments about what constitutes “significant”, “relevant” and “impact.”
Bambos Charalambous
I thank the hon. Gentleman for his intervention, and ask, well, why not? Does he not think that is a noise? If it is not a noise, why is that not set out in the legislation? Where is the guidance on it? The legislation is badly worded and wrong, and its vagueness will cause confusion. The hon. Gentleman has demonstrated the point I am making; he says it is a load of rubbish, but in my view that would be captured under the legislation. Are songs and music exempt? Perhaps the Minister will tell us.
Some protests and processions are loud, colourful and joyful. I am sure the Minister is aware of the explosion of colour and sound that is the Pride parade, which takes place in towns and cities across the country. Pride in London is a wonderful event, and the procession is a joy to watch. It is also very noisy. There are drums, whistles, sound systems and cheering crowds; it is quite something. Will the London Pride parade, which passes down the top part of Whitehall, constitute noise and have a significant and relevant impact on persons in the vicinity? Part of the point of Pride is to be noisy. Could Pride be outlawed for being noisy? If not, why not? Let me put on record my support and solidarity of the LGBT+ community during this Pride month.
Even if the Minister brushes off music, song and noise made by the Pride parade as not constituting noise for the purposes of the Bill, does she concede that noise can be an integral part of protest? Earlier this year, we watched in horror as the military staged a coup against the democratically elected Government of Myanmar. There was outrage among people as the military clamped down on protest and imposed curfews. Faced with the prospect of curfews and armed brutality against street protests, protestors found other ways to make their protest heard. In February, in the city of Yangon, ordinary citizens staged a noisy protest, by banging pots and pans and anything they could lay their hands on from their balconies and homes, to create an almighty din and show civil disobedience and anger against the coup. Those same protestors in the UK, banging their pots and pans, would fall foul of clause 54. Noise is part of protests; whoever drew up the proposals clearly has not thought through the dilemma that the police will face, putting them in an invidious position as they try to enforce these sloppily drafted clauses.
I am surprised that the Government, who pride themselves so much on their libertarian values, are so prescriptive and authoritarian in trying to pass the legislation. The right to protest is a fundamental freedom, as is freedom of speech. The former Prime Minister and Home Secretary, the right hon. Member for Maidenhead (Mrs May), was right when she said on Second Reading that the legislation is concerning and risks going against the right of freedom of speech. On the power of the Home Secretary to make regulations on the meaning of serious disruption to the activities of an organisation or the life of the community, the right hon. Member made another important point, saying:
“It is tempting when Home Secretary to think that giving powers to the Home Secretary is very reasonable, because we all think we are reasonable, but future Home Secretaries may not be so reasonable.”—[Official Report, 15 March 2021; Vol. 691, c. 78.]
If there were a peaceful protest outside the Home Office that the Home Secretary did not like, everyone could be criminalised for shouting too loud, so that people working were not disturbed. Does the Minister have a cause that she cares deeply about and may want to protest about? The Home Secretary would have the ultimate say on whether what she was saying was right or wrong. I know that I would not want the Home Secretary to have that power.
Michael Barton, the former chief constable of Durham police, compared the measures in the Bill to those of a paramilitary-style police force, and asked if the Government are
“happy to be linked to the repressive regimes currently flexing their muscles via their police forces?”
I reiterate his question to the Minister, and I hope she will answer it. The very same Home Office that is offering Hong Kongers British national overseas visas to escape the oppressive regime that last week banned the annual vigil to commemorate the Tiananmen Square massacre in 1989 would criminalise those Hong Kongers for demonstrating loudly outside the Houses of Parliament. Once again, the Government are on the wrong side of the argument; instead, they find themselves on the same side as those who curtail the right to protest and silence the voices of the people.
Sarah Champion
The march in Hong Kong that my hon. Friend refers to shut down the city. We, as a country, have been very outspoken about China’s action towards those protestors, for criminalising them in such a mass brutal manner. I bring my hon. Friend back to the hypocrisy that we might see should we welcome those protestors with welcome arms while, as he says, criminalising them in this country.
Bambos Charalambous
My hon. Friend makes an excellent point. Why do we criticise the regime in Hong Kong when we are going to be imposing limitations on the right to protest here? It just does not make any sense. It does not add up.
Sarah Champion
It is very obvious that this is a contentious topic, and the one that has gained the most media attention for this Bill. I am very grateful to my hon. Friend the Member for Enfield, Southgate for making a very persuasive case. I must challenge my friend the hon. Member for Ashfield because I think his criticism was unjust, but it does highlight that what one person thinks is nonsense can be a very passionate thing for another, and we all deserve the right to protest.
I would like to start by making the argument, again, that the police already have wide powers to impose conditions on both static assemblies and marches, as well as broad discretion in how those powers are applied. Let me quote from the Liberty briefing:
“The cumulative effect of these measures—which target the tools that make protest rights meaningful – constitute an attack on a fundamental building block of our democracy.”
Liberty say that the clauses are fundamental block on our democracy. They say that these are draconian measures that impose disproportionate controls on free expression and the right to protest; measures that will have an unfair impact on black, Asian and ethnic minority people.
It is unfortunate that the amendments tabled by Labour have not been selected. I would like to state that Labour is very supportive of the measures that allow access for emergency services, but overall I personally think that the clauses go far too far, and I support my honourable colleagues in wanting to vote against this clause. It should not be in this Bill.
I am interested to hear from the Minister whether she agrees with the witnesses we heard from that the police already have sufficient powers to deal with protests. In the evidence session, Matt Parr said,
“there is quite a stark difference between London, which obviously gets a disproportionately large number of protests, and elsewhere.”
He said that senior police officers outside London
“tended to think they had sufficient powers”—[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 18 May 2021; c. 53, Q77.]
Again, I would be very interested to hear from the Minister if she thinks that these measures are actually London-centric, and not needed in places like Rotherham—I see the Minister grimace, and I share that—or if they are needed across the country. Furthermore, how will she make sure that police forces across the country handle them at the same level, and will there be training and support to enable them to understand exactly where to apply them?
I ask that because in Rotherham, after the scale of the child abuse in the town became known, the far right would come and basically put the town into lockdown every month. It was incredibly intimidating. It stopped businesses being able to trade and basically drove people off the streets and out of the town centre because they were too scared to go in. We then had a change in the police officer in control of the protests. He swiftly applied different measures on the route they could take—they could not meet in the centre of town—the level of planning and the level of security that the protestors had to put in place, and quickly the protests started to diminish to the point at which they stopped. It was clear to me at that point that the police do have the powers; it is about whether they know about them and have the ability and indeed the resources to enforce them.
Rotherham has a long and proud but also bloody history of protest. I think in particular of the battle of Orgreave, which was a pivotal event in the UK miners’ strike and has been described as a brutal example of legalised state violence. That was just one event of many in the mid-1980s that led to the Public Order Act 1986. Why has it taken from 1986 until now for Ministers to feel that we need new legislation? I also raise that because the brutal way in which the police dealt with those protestors has led to mistrust and suspicion towards our police forces and I really do not want to see this legislation, if it goes forward, building on that level of mistrust not just in Rotherham but across the country, because once trust is lost it is almost impossible to bring it back.
I turn to some of the key organisations that submitted written evidence or were witnesses and spoke against these measures. Liberty has said that
“the Bill drastically limits the right to protest.”
The Good Law Project said:
“The provisions threaten to neuter protests in ways that would render them ineffective—effectively taking away one of the only ways in which people can express their dissatisfaction in a democratic society.”
It went on to say:
“The Bill renders the UK an outlier when it comes to international human rights norms around the right to peaceful assembly.”
I find it really disturbing—not least as Chair of the International Development Committee—that we are stepping away from our international obligations and doing so on the right to protest, which I know the Foreign Secretary is really keen to uphold internationally. The movement we see in the Bill is disturbing.
Rights of Women said:
“The Bill is a further dangerous extension to police powers that exemplifies the rolling back of our human rights and ignores a history of violence against women at the hands of the police.”
A petition entitled “Do not restrict our rights to peaceful protest” in response to the Bill has more than 250,000 signatures. Two hundred and forty-five organisations signed a letter co-ordinated by Liberty and Friends of the Earth to the Government on 15 March, which said that the Government’s proposals were cause for “profound concern”. The organisations highlighted “draconian…police powers” to restrict protest. Organisations who signed the letter include Amnesty International, Greenpeace, the Royal Society for the Protection of Birds, Unite, Rights of Women, Inquest and the Northern Police Monitoring Project.
The Bar Council said:
“There are clear tensions between this section and the freedom of protest and expression (both protected under the European Convention on Human Rights). It gives expansive powers to the police, which encompass the arrest of one individual who is independently protesting. There are legitimate concerns that it would allow the Government to prevent protests with which it does not agree.”
That is one of my biggest concerns. Let us look at former and current Government Ministers who are against the proposals.
Alex Cunningham
The written evidence from Leeds for Europe quotes Mr Justice Laws saying that a margin must be given to protests. He also said:
“Rights worth having are unruly things. Demonstrations and protests are liable to be a nuisance. They are liable to be inconvenient and tiresome, or at least perceived as such by others who are out of sympathy with them.”
However, under the new powers in the Bill, if the Home Secretary is out of sympathy with a particular protest or protest group, she could ban them from protesting. Surely that is an affront to our democracy.
Sarah Champion
It absolutely is. My hon. Friend lays a very startling future before us. It might not even get to the Home Secretary—it might be an individual police officer who makes the call, or a chief constable or a police and crime commissioner. That is what concerns me.
By their very nature, protests are designed to be annoying, to be loud, to raise their views. When we look back at our history, where would we be without protest? It is inconceivable. This country has a proud history of protest—however annoying, however much of a nuisance protests are. That is what moves us forward as a democracy. To lose that, or to have it chipped away, is a very disturbing position.
That view is echoed by former and current Government Ministers. On 7 September 2020, the Minister for Crime and Policing, the hon. Member for North West Hampshire (Kit Malthouse), affirmed:
“The right to peaceful protest is a fundamental tool of civic expression”
and promised that protest
“will never be curtailed by the Government.”—[Official Report, 7 September 2020; Vol. 679, c. 384.]
What has changed in the intervening nine months?
The former Attorney General, Dominic Grieve QC, said that
“no new laws were required if the police used the substantial powers they already have”.
On Second Reading, the right hon. Member for Maidenhead said:
“I do have some concerns about some of the aspects of the public order provisions in the Bill. I absolutely accept that the police have certain challenges...but freedom of speech is an important right in our democracy, however annoying or uncomfortable that might sometimes be…Protests have to be under the rule of law, but the law has to be proportionate.”—[Official Report, 15 March 2021; Vol. 691, c. 78.]
We would all agree that protests have to be under the rule of law, but I think we would disagree on the proportionality.
Also on Second Reading, the right hon. Member for Chingford and Woodford Green (Sir Iain Duncan Smith) said:
“Is the Bill perfect? No, it is by no means perfect. I hope that it will be corrected as it goes through. Will that happen? Certainly. I accept that there are issues around freedom of speech and the right to assemble, and I think that these will be dealt with during the course of the debate.”—[Official Report, 15 March 2021; Vol. 691, c. 90.]
I hope that that is true.
Let us turn to the ambiguities in the proposed legislation. Evidence given by witnesses in the Joint Committee on Human Rights session on the proposed police powers showed that the terms
“serious unease, alarm and distress”
are not sufficiently clear for protesters to predict when conditions might be imposed on demonstrations. I reiterate the call from my hon. Friend the Member for Enfield, Southgate: the Minister needs to set out exactly what serious unease, alarm and distress is, as well as what serious noise is. Jules Carey from Bindmans LLP said the terms are
“too vague in law to have any meaningful impact or sensible interpretation. They also create a threshold that is too low.”
The Good Law Project says of the clauses that,
“the cumulative effect is likely to be deeply damaging”
because of their ambiguity, and because the police
“will have considerable scope to test the limits of their own powers.”
The Bar Council said:
“The present drafting is also vague and will require interpretation by the senior courts before the precise meaning of the law becomes settled. We consider this to be undesirable in legislation which limits fundamental civic rights.”
The Good Law Project, the Bar Council and witnesses from evidence sessions for the Bill Committee and the Joint Committee on Human Rights say the wording is too vague for protesters to interpret. How will the Minister ensure protesters will not get arrested at peaceful protests due to their understanding of current legislation?
In our evidence sessions, Matt Parr, Her Majesty’s inspector of constabulary, said:
“We were very clear in what we said that any reset should be modest.”
We seem to have drifted a long way from modest—most organisations who have given evidence have argued that the changes in this part of the Bill are not modest. He continued:
“We also said that, because of article 10 and article 11 rights, some degree of disruption is not just an inevitable by-product, it is sometimes the whole point of the exercise of protest, and on that basis, it has to be encouraged.”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 18 May 2021; c. 52, Q77.]
Councillor Caliskan, from the Local Government Association, said:
“In my experience, from having spoken to council leaders from across the country, the best way that peaceful protest is facilitated is planning in advance. That means the community and organisers having a good relationship with the police, and local forces working closely with local authorities”.––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 18 May 2021; c. 60, Q92.]
That is another concern—that these parts of the Bill will undermine the good working relationships and trust, and that will go on to make it even more difficult to organise peaceful protests.
Sarah Champion
Would those actions not already be criminal activity under existing legislation?
Victoria Atkins
They would. The hon. Lady may remember that I questioned Mr Wagner about his interpretation of the Public Order Act. We acknowledge, and I think the police have said, how dynamic a public protest can be; it changes very quickly and they have to make decisions very quickly, on the ground. I asked Mr Wagner, because I was slightly concerned about some of the evidence he had given earlier:
“Do you accept that the Public Order Act 1986 is a piece of legislation that has stood the test of time and should remain in law?”
He said:
“I think I would be neutral on that. It is a very wide piece of legislation. Every time I read it, I am pretty surprised at how wide it is already. What I am pretty clear about is that section 12 does not need to be widened.”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 18 May 2021; c. 76, Q109.]
Then I asked whether that meant the Public Order Act went too far for his liking. He replied:
“Well, potentially. The proof is often in the pudding. It depends on how the police use it and whether they are using it effectively.”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 18 May 2021; c. 76, Q110.]
I agree wholeheartedly with his summation that it is about how the police employ the powers, but we need to just have in mind the range of views that have been expressed by witnesses giving evidence to the Bill Committee, whether in writing or orally. It would appear that there are some for whom the current legislation goes too far, yet we hear of instances such as the “Kill the Bill” protests where very significant harm has been done to police officers. Hon. Members will be able to draw on their own memories of other protests that have resulted in police officers being very badly injured and hurt by the protests of a minority. It shows, again, the need for a balance.
Victoria Atkins
The hon. Lady has summarised the very great responsibilities borne by senior officers in charge of protests. Of course protest should not be banned—I said at the beginning that that is not what the Bill is about—but the point does show the very fine judgments that senior police officers have to make in the moment of the protest. Where there are organisers, they will have been able to have discussions beforehand, but where protests spring up on social media and it is not clear who the organisers are, police officers are having to make decisions on the ground very quickly.
I am asked what has changed in the 35 years since the Public Order Act came into force. The role of social media in getting the message out, and protests being organised at very short notice, means that it can be difficult for police officers to identify to whom they should be speaking when it comes to how these protests or gatherings are policed and managed.
The hon. Member for Enfield, Southgate mentioned Pride. I would not call Pride a protest, although it may have had its roots in protest. I hope we now see it as a glorious celebration enjoyed, from the photographs I have seen in newspapers, by the police as much as by other people in attendance. That is an example of a gathering where the organisers are very clear, and they work extremely well with the police to ensure that the procession, the celebration, is enjoyed by all and is safe for all.
Sarah Champion
First, people all around the world are being murdered for being gay, so there is the element of protest. Secondly, can the Minister confirm that the measures she is putting in the Bill would address the fire-starting protests that come up? If that is the nub of what she is trying to address, it seems to me that the clauses go a lot further than that.
Victoria Atkins
That is one of the things addressed by the Bill’s clauses. If I may, I will go methodically through the examination of the clauses.
There is a reason why we are trying to draw consistency between processions and assemblies. In 1986, the distinction between the two might have been very clear, but we heard evidence from the police that nowadays a protest can become an assembly and an assembly can become a protest. They change, so we are trying to bring consistency between the two forms of gathering, irrespective of the mobility of the participants, so that we have clarity of law as to what applies to participants when they gather together.
At this stage in my submission, I am going to introduce some context. Again, the misunderstanding might have arisen that the measures will apply to every single protest that ever takes place, which is not the case. In his oral evidence to the Joint Committee on Human Rights on 28 April this year, Chief Constable Harrington said that between 21 January and 21 April this year, more than 2,500 protests were reported to the National Police Chiefs’ Council, and of those 2,500 protests, conditions were imposed on 12.
As I develop my argument and talk about these powers being used very carefully by the police, and about the checks and balances within the legislation, I point to how rarely the conditions are imposed in the range of protests that go ahead. Indeed, my right hon. Friend the Member for Scarborough and Whitby might have wished that conditions were imposed in other protests, but we foresee the legislation being deployed rarely and very carefully.
Police, Crime, Sentencing and Courts Bill (Tenth sitting)
Sarah Champion ExcerptsTuesday 8th June 2021
(4 years, 8 months ago)
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Victoria Atkins
Very much so. This is about ensuring that the rights that we have spoken about so far are protected, and that the integral balance of the social contract is maintained. My right hon. Friend is absolutely right.
The police already have the power to impose any necessary conditions on marches. If it is acceptable for the police to impose any such conditions on processions, as they have been able to do since the 1930s, it is difficult to see the basis for the Opposition’s objection to affording equivalent powers to impose conditions on an assembly when it presents an equivalent public order risk.
In his evidence, Chief Constable Harrington said words to this effect—my apologies to Hansard: “We asked for consistency between processions and assembly, which this Bill does.” The police will impose those conditions only where they are necessary and proportionate, complying with their obligations under the Human Rights Act 1998. In fairness, Chief Constable Harrington set out the care and training that the police receive to ensure that they can carry out their obligations carefully.
Clause 56 closes the loophole in the offence of failing to comply with a condition attached to a procession or assembly. When the police impose conditions on a protest to prevent serious public disorder, serious damage to property or serious disruption to the life of the community, they ensure that protesters are made aware of those conditions through various means. Those can include communicating with protesters via loudspeakers or handing out written leaflets.
Some protesters take active measures, such as covering their ears and tearing up leaflets without reading them, to ensure that they are not aware—or to complain that they were not aware—of the conditions being placed. Should they go on to breach the conditions, they will avoid conviction as, under current law, an offence is committed only if a protester knowingly fails to comply with the condition.
Clause 56 will change the threshold for the offence to include where a protester ought to have known of the conditions imposed, closing the loophole in the current law. That is a commonly used fault element in criminal law—indeed, I note that the hon. Members for Stockton North and for Rotherham use it in new clause 23, which provides for a new street harassment offence. The police will continue to ensure that protesters are made aware of the conditions, as they currently do. The onus on the prosecution would change from having to show that an individual was fully aware of conditions, to showing that the police took all reasonable steps to notify them. As I said earlier, the standards and burdens of proof apply, as they do in any other criminal case: it is for the Crown to prove the case beyond reasonable doubt.
This particular proposal was examined by the policing inspectorate and it is again worth quoting from its report in March. It said:
“Our view is that the fault element in sections 12(4) and (5) and sections 14(4) and (5) of the Public Order Act 1986 is currently set too high. The loophole in the current law could be closed with a slight shift in the legal test that is applied to whether protesters should have known about the conditions imposed on them. On balance, we see no good reason not to close this loophole.”
The clause will also increase the maximum penalties for offences under sections 12 and 14 of the Public Order Act 1986.
Due to the increasingly disruptive tactics used by protesters, existing sentences are no longer proportionate to the harm that can be caused. Organisers of public processions and assemblies who go on to breach conditions placed by the police, as well as individuals who incite others to breach conditions, will see maximum custodial sentences increase from three to six months. Others who breach conditions will see maximum penalties increase from level 3 to level 4 on the standard scale, which are respectively set at £1,000 and £2,500.
Sarah Champion (Rotherham) (Lab)
Can the Minister give an example of an occasion when the current sentence has not been proportionate, in her opinion? Is she looking at custodial sentences and considering the impact they would have on the courts and on the Prison Service?
Victoria Atkins
The custodial aspect has been increased from three months to six months in relation to organisers of public processions and assemblies who go on to breach conditions, as well as those who incite others to breach conditions. The sentence in relation to the fine is for those who breach conditions. They go in a different category from organisers and those who incite others to breach conditions.
I do not have any examples to hand immediately, but I imagine some will find themselves in my file in due course. We are looking at maximum sentences, but it is still for the independent judiciary to impose sentences in court on the facts of the case that they have before them. That is another safeguard and another check and balance within this legislation. It will be for the judiciary to impose individual sentences, but it is right that Parliament look at the maximum term.
Sarah Champion
I thank the Minister for her clarity on that. I completely support her point when violence is being done or emergency services are being blocked and the disruption is in no way proportionate to the nature of the protest, but I would like her to give some clarity on the issue of noise. Is it a decibel thing? Is it an irritation thing? Who decides what the irritation is? What is and is not acceptable? Would the threshold be lower in a small village because noise would not normally be heard, whereas in a big city with lots of industrial sites it would be a lot higher? It is that subjectivity that I put to the Minister.
Victoria Atkins
That is precisely why we are introducing an objective test in clause 54(3). The hon. Lady will see the wording:
“For the purposes of subsection (1)(ab)(i), the noise generated by persons taking part in a public procession may have a relevant impact on persons in the vicinity of the procession if—
(a) it may result in the intimidation or harassment of persons of reasonable firmness with the characteristics of persons likely to be in the vicinity.”
That is consistent with other parts of the criminal law. The wording continues:
“or (b) it may cause such persons”––
that is, persons of reasonable firmness––
“to suffer serious unease, alarm or distress.”
We have been very mindful of trying to help the police because it would be a matter for the police to weigh up during a procession, assembly or one-person protest or before one starts. It would be for the senior officer to make that assessment, but it is an objective test.
I hope that the hon. Lady will not mind my raising it, but the example she gave of the impact that hearing a drill had on her personally was her personal, subjective experience; we are saying that this would have to be an objective test—the reasonable firmness of people in the vicinity of that noise.
Sarah Champion
Let me give an example that I am sure everyone in this room will have experience of, as I have. An MP might be speaking at a demo or rally and a group of people feel the need to say, “See you next Tuesday” during the speech. That distresses the church group being addressed. Would that reach the threshold? Is it more of a decibel thing rather than it being directed to the MP? For example, in Rotherham the community came together to hold peaceful vigils but the far right held counter-protests in which they felt the need to call us paedophiles.
I appreciate that I am being annoying on this, but I just do not get it. These particular cases feel subjective and that is why I would like to get the clarity bedded down.
Victoria Atkins
First and foremost, the hon. Lady is certainly not being annoying; she is doing her job and her duty on the Committee. I am feeling my way here carefully because obviously Ministers should not comment on individual cases, but, on her example, in a scenario where someone is being at shouted at or spoken to as she described, there is a very good argument for saying that the person doing the shouting is committing a public order offence under the 1986 Act—that could be a section 5 offence of causing harassment, alarm or distress at the moment.
Again, I read across to other parts of public order legislation. That is why the objective test is an important one. We want first to be consistent with other public order measures. However, we recognise that there may be some instances in which an individual, for whatever reason—medical or otherwise—may have a particular sensitivity. In the criminal law, we say, “Look, we have got to deal with this on an objective basis, because it is the criminal law and the consequences of being convicted of a criminal offence are as serious as they are.” I have some hypothetical examples to give a bit of colour in due course, but, if I may, I want to complete outlining the checks and balances as written in the Bill so that everyone has a clear picture of the steps that a senior officer will have to go through to satisfy herself or himself that a condition can be imposed on the grounds of noise.
The senior officer must decide whether the impact is significant. In doing so, they must have regard to the likely number of people who may be affected, the likely duration and the likely intensity of that impact. The threshold at which police officers will be able to impose conditions on the use of noise is rightly very high. The examples I have been provided with—I am sure the Committee will understand that I am not citing any particular protest or assembly—are that a noisy protest in a town centre may not meet the threshold, but a protest creating the same amount of noise outside a school might, given the age of those likely to be affected and how those in the school are trying to sit down to learn on an average day. A noisy protest outside an office with double glazing may not meet the threshold, but a protest creating the same amount of noise outside a care home for elderly people, a GP surgery or small, street-level businesses might, given the level of disruption likely to be caused. Again, that refers to the conditions in clause 54(3) about the likely number of people, the likely duration and the likely intensity of that impact on such persons.
Victoria Atkins
Indeed. Of course, we are rightly sitting here scrutinising every single word of the Bill carefully, but a senior police officer on the ground will have had a great deal of training and years of experience as an officer working in their local communities. They will also have the knowledge of their local communities. I imagine that policing a quiet village and policing the centre of Westminster are two very different experiences, and the officers making such decisions will be well versed in the needs of their local areas. None the less, officers across the country will be bound by the terms of subsection (3)—those checks and balances I have referred to throughout—and the European convention on human rights.
Sarah Champion
I thank the Minister for being generous; it is appreciated. On the examples I supplied, her response was that the existing legislation ought to be covering the point. She mentioned a case study in which a protest could reach the threshold if there was no double-glazing. What concerns me is the organiser who could now face up to six months in jail. Are they meant to know whether properties do or do not have double-glazing, and therefore instruct the march to be silent for a specific 100 yards, as they could otherwise fall foul of the earlier clause? I say to the Minister that I just do not like subjectivity when it comes to the law.
Victoria Atkins
The organiser in those circumstances would, of course, be liable to having a committed an offence only if they breached the order. Indeed, this is the important point. It is for the police to make that assessment. If the police have a conversation with an organiser and say, “We believe that using your very high-level amplification system in this residential street meets the criteria under subsection (3) such that we are going to impose a condition asking you to turn it down,” the organiser, or the person deemed to be the organiser, will have had that conversation with an officer, and I very much hope that they will abide by the condition. If they do not, that is where the offence comes in, and that is a choice for the organiser.
As is already the case with processions, those conversations will happen and it will be a matter for the organiser as to what course of action they choose to take. One hopes that they will take the advice and guidance of the police, adapt and therefore be able to continue with their protest in a way that meets the expectations of the local community or local businesses. I appreciate that the detail is incredibly technical, and I am trying to work through every set of factual circumstances. I understand absolutely why people want to work through those, but there are checks and balances that run throughout the Bill.
Police, Crime, Sentencing and Courts Bill (Seventh sitting)
Sarah Champion ExcerptsThursday 27th May 2021
(4 years, 8 months ago)
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Sarah Jones (Croydon Central) (Lab)
It is a pleasure to be back here today. Before I get into the detail of the clauses, I want to put some questions to the Minister, to reflect on the importance of reviews when there have been homicides or unexplained deaths and to give an example.
I was reading the serious case review about Child Q, who was aged 16 when he died following a moped crash. One might think, “There’s a child who died following a moped crash. End of story.” but because he was a vulnerable adolescent there was a comprehensive serious case review into his life, his death and what happened.
At the time of his death, he was a looked-after child in children’s services and was living in the midlands with members of his extended family. On the day of the collision, he had been released on conditional bail from a remand court for breach of his court order. Family members and professionals had requested that he be made the subject of a curfew and tagging, but that, for whatever reason, was not put in place and he returned to London, where the fatal accident occurred.
He started his life as an aspirational boy and had wanted to be a professional footballer. His first conviction ended those aspirations and the motivation to play football. Throughout his life he lived with various family members and foster carers. He was often missing and was both a victim and a perpetrator of various offences. He was involved in high-risk behaviour and believed to be a gang member. When interventions were made, he appeared to understand that his life was very high risk, but seemed almost resigned to the inevitable risks that he was facing. During the latter stages of professional involvement, Child Q asked the professionals, “Where were you when I was six?”
This 16-year-old died because of a moped crash, but because of this review we can learn that bail conditions and tagging would have helped him to make the decision not to travel to London. We have learned that this child was in and out of care and often went missing, that interventions were not made and that the problems started very early. Although that could not in itself have prevented that death, there is a story behind that child that we can learn from.
Sarah Champion (Rotherham) (Lab)
My hon. Friend may not know that I used to run a children’s hospice. Child deaths are very rare, but a review such as this enables the family to have the closure that they need to move on, enables the lessons to be learned and enables the whole community to grieve and draw a line under something. Of course it is important to understand the failings that occurred so that they never happen again, but also in the broader context, conducting a review is a really important thing to do. In terms of costs and resources, these deaths are not that common; this does not happen that often, but when it does, it destroys a community, not to mention the family.
Sarah Jones
I thank my hon. Friend for that intervention. She speaks with great experience, and she is absolutely right: doing these reviews has wider benefits. Reading the review on Child Q and hearing the stories from the father, mother and family members about him, we can see, hopefully, some form of the beginnings of closure from the review. Therefore we are very much in favour of extending homicide reviews in the way provided for under the Bill. We have some amendments, but they come later, so I will not speak to them now.
To do the victims and their families and friends justice, we need to ensure that the lessons are learned. Part 2, chapter 2 of the Bill will require police, local authorities and clinical commissioning groups to conduct offensive weapon homicide reviews when an adult’s death involves the use of an offensive weapon. Police recorded 625 homicide offences in the year ending December 2020. Of all homicides recorded in the last year—the latest year that we have information for—37% were knife-enabled crimes. A large proportion of homicides involve offensive weapons. In the year ending March 2020, 275 homicides involved a sharp instrument, 49 involved a blunt instrument and 30 were homicides involving shooting. It is therefore absolutely right that the Government look to learn the lessons from those homicides not currently reviewed by multi-agency partners.
In my constituency, there have been incidents in which adults have been killed and an offensive weapon was involved. In one instance, there were incidents in the same area within weeks of each other. Those cases were not linked together, but actually, when people looked into the background and how those murders occurred, it turned out that they were linked.
It is therefore important that the pathways that lead people to be involved in homicides, whether as victims or perpetrators, can be understood and the knowledge can be shared. Offensive weapon homicide reviews will be similar to the domestic homicide reviews that already take place. Domestic homicide reviews are carried out when someone over the age of 16 dies as a result of domestic violence, abuse or neglect. The Government have committed to taking action to address homicide, but have not previously committed to introducing offensive weapon homicide reviews specifically.
Clause 23 will require an offensive weapon homicide review to be carried out when a qualifying homicide has taken place. A qualifying homicide occurs when an adult’s death or the circumstances or history of the person who has died meet conditions set by the Secretary of State in regulations. In accordance with clause 27, the purpose will be to identify lessons to learn from the death and to decide on actions to take in response to those lessons.
Clauses 24 to 35 do a number of things, including giving the Secretary of State the power to specify the relevant review partners in regulations and which of the listed public bodies will need to carry out the review in these circumstances, and to clarify when offensive weapon homicide reviews do not need to be carried out. Importantly, review partners must report on the outcome of their review to the Secretary of State. In addition, there are other key regulations about the obligations of offensive weapon homicide review partners.
Clause 33 is important, as it will require offensive weapon homicide reviews to be piloted before they are brought into force. The Secretary of State will be required to report to Parliament on the pilot. It is vital that offensive weapon homicide reviews are piloted before being rolled out nationally, but the provisions are fairly light on detail. It would be helpful if the Minister could provide any further information on the piloting. Can she clarify how many local authorities or police forces they will work with to pilot the reviews?
Standing Together, a domestic abuse charity, recently reviewed domestic homicide review processes in London boroughs. Its 2019 report identified several areas for improvement, including how domestic homicide reviews are stored and retrieved, how chairs are appointed, and how appropriate funding is secured. It also highlighted that not enough sharing of knowledge is happening.
We are glad that the pilot partners will report on these reviews before they are implemented, but could the Minister explain in a bit more detail what those reports will include? Will there be regular reporting and evaluation of these offensive weapons homicide reviews once they are implemented? Where there is an overlap, and a homicide fits into two different categories—for example, if there is a domestic homicide review and an offensive weapons homicide review—how will the lessons be learned? Will there be two reviews, or just one? I am also keen to hear how the lessons from all existing homicide reviews can be better understood and shared between partners to ultimately make our streets safer and save lives.
The Secretary of State is given the power to make regulations on offensive weapons homicide reviews, to provide information on how to identify which local services are relevant to the review and how local services can negotiate who carries out the review when the circumstances are not clear. This is defined in regulatory powers, not on the face of the Bill; perhaps the Minister could explain why, and also explain what her expected timeframe is for these powers. If the duty to conduct these reviews will not be carried out until the criteria are defined in regulation, will there be a delay? What period of time is the Minister expecting that to be—because those regulations will need to go through Parliament—and what will happen after the regulations are published? Can she provide any data on how many more homicide reviews this change will actually bring; what expected number of reviews will need to be undertaken? Finally, what are the plans for budgets to cover local safeguarding partners’ costs for the delivery of these reviews? That question was raised in evidence from the Local Government Association, so will the Home Office be submitting a case to increase the funding for local authorities? If not, how does it envisage that these reviews will be funded? I will leave it there.
Sarah Jones
As more and more crimes take place online or are enabled through digital devices and the internet, the extraction of information from electronic devices has increasingly become a routine part of criminal investigations, but the way in which such information can be made available to law enforcement, prosecutors and the defence has rightly received a great deal of attention and scrutiny in recent years, particularly in rape cases. It has become the norm for rape complainants to be asked to hand over digital devices and for most or all of the material to be checked through in detail. The Victims’ Commissioner said in her excellent evidence to the Committee last week that, through her recent survey of rape complainants and her network of stakeholders, she had heard that
“the CPS frequently seeks a level of material straight away, before it charges, and if a complainant refuses, the case just does not get considered for charge. That is very, very troubling, and it has a chilling effect not only on current victims, but on reporting, and it could impact victim attrition.”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 20 May 2021; c. 110, Q174.]
I will give some examples that have come to light and that reflect many people’s experience. These are the words of Courtney:
“After a two-and-a-half-year investigation into my sexual assault case, which had witnesses and a potential second victim, the police told me the CPS was going to drop my case if I didn’t give them a download of my phone. When I asked them what was the reasonable line of inquiry, they told me that I could be lying. There could be something that discredits me on there. I could be hiding something. And to me, that’s not reasonable. I was asked why I was concerned, but actually it’s totally rational to fear giving your phone over to the police. I think most people would not want to give the contents of their phone to their mother”—
I certainly would not—
“let alone the government or the person who attacked them who may, because of rules around disclosure, get access to it. When I refused my case was immediately dropped.
The CPS turned its back on me and treated me as a suspect—they made it so clear that I was alone and I was powerless. That anyone can rape me with impunity unless I submit to the court’s illegal demands.
And it became clear to me that I needed to work to change that, because it can’t go on. I had my power taken away from me from the assault, I had my power taken away from me from the criminal justice system. I was left in a really bad place. There were times, you know, I didn’t want to be here anymore. But taking up this case, working with the Centre for Women’s Justice, it’s been so important for my mental wellbeing. I feel like, for the first time in a while, I’m coming to terms with everything that happened to me.”
A woman who was raped by a stranger in London told The Independent newspaper that she dropped her case after the police demanded access to her mobile phone. She said:
“It made me very angry, it made me feel like I was the one on trial and they were trying to seek out ways it was my fault.”
She added that she was concerned that evidence of past one-night stands could be used against her in court. Another woman who faced the same demand after the Metropolitan police had identified her attacker using DNA told that paper that the investigation felt like “one intrusion after another”. She said:
“I’m not actually sure I would have gone ahead with the case if I’d known what was part of the process.”
In another case, the CPS demanded to search the phone of a 12-year-old rape victim despite the fact that the perpetrator had admitted the crime. The case was delayed for months as a result. Finally, a different woman reported being drugged and then attacked by a group of strangers, but the case was dropped after she refused to hand over seven years of phone data.
Analysis of a rape crisis administrative dataset conducted by the office of the Victims’ Commissioner showed that one in five victims withdrew complaints at least in part because of disclosure and privacy concerns. Victims in 21% of cases had concerns about digital downloads, about disclosing GP, hospital, school and employment records, and about a combination of negative press coverage. Home Office data also shows an increase in pre-charge withdrawal of rape complaints. In the year ending December 2020, 42.8% of rape offences were closed as part of what is called the “evidential difficulties” category—where the victim did not support further police action against a suspect—compared with 25.6% in 2015. As we know, the charge rate for sexual offences is just 3.6%, and for rape it is 1.6%.
Such stark figures will not help with the concerns of many senior police chiefs that there has been a fall in public and victim confidence in the police in relation to rape cases, in particular. The issue of digital data extraction plays a big role in that, which is why we have tabled amendments. I am sure the Minister will say that clause 36 is required to tidy up the law so that it is clear about what the police can and cannot do, but with our amendments we are seeking to define and improve the rights of victims so that it is clearer to them when data should and should not be extracted.
Amendment 94 would ensure that users of electronic devices are offered free, independent legal advice before information on their device could be accessed, and it was recommended by the Victims’ Commissioner. It is vital that victims understand their rights so that they can make an informed decision on whether to agree to handing over their device for digital download.
Sarah Champion
I can only speak from my constituency experience, but many women have come to me having gone to report offences against them in childhood or rape offences against them. They are not in a position to give consent; they are not even in a position to understand what is going on—they are in a highly traumatised state. Walking into a police station is a very shocking thing. They go up to the front desk, get a meeting—one hopes—with an officer, and they are then told to hand over their phones or the police cannot proceed. Will my hon. Friend comment on that inherent power imbalance and the vulnerability of people in that situation—they were all women in those cases—who are expected to make an informed choice?
Sarah Jones
My hon. Friend makes an excellent point about that power imbalance. I have not been in that situation myself, but I can only imagine the bravery that it would take for someone just to take those first steps into a police station and recount what has happened to them, given how awful that would make them feel, let alone potentially handing over everything on their phones.
We were all watching Dominic Cummings yesterday—well, some of us were. [Interruption.] Whatever we think of him, right or wrong, he commented, “Well, I would not just hand my phone over so you could look, just to fish to see if there was anything on it that you thought might be relevant.” It is the same situation here. If people have past sexual history, which most people have, the idea that that would be used against someone in that vulnerable position—
Sarah Jones
That is completely right and why we think that having some advice would help in both directions. It would help be clear about when a phone should or should not be handed over, but it would also hopefully help give people confidence when handing it over is the right thing to do, because it is reasonable and proportionate for the police to ask for it, for whatever reason they have given. We hope that that legal advice and support at that stage would help stop anything from being just a fishing expedition, while also giving people confidence to hand over their phones when that is the appropriate thing to do.
I am grateful to the Home Office for funding a pilot of independent legal advice for rape complainants dealing with digital download in Northumbria. The Sexual Violence Complainants’ Advocate scheme pilot engaged local solicitors to provide legal advice and support to rape complainants in Northumbria, related to the complainants’ article 8 rights to privacy. The pilot demonstrated what was happening in practice and found that about 50% of requests were not strictly necessary or proportionate. Some police officers who participated in the scheme expressed concern about this culture. One said:
“I could talk all day about third-party material, and it is the real bone of contention. It’s one of the things that has given me sleepless nights over the years.”
They go on:
“I had a rape team investigator say to me on one occasion, or a former rape team investigator, say to me, ‘I had to like leave the rape team because of what I was asked to do, in relation to victims, I couldn’t do it’. And I think, you know, that, for me just spoke volumes. And lots of people were expressing their concerns, including me, but when that officer said that to me, I kind of thought, d’you know what, there’s something sadly wrong here.”
Another contributor said:
“I would love to see a document where somebody who has looked at third-party material has actually considered the Article 8 rights of the victim. ’Cos I don’t think you’ll find that anywhere.”
Furthermore, another said:
“In terms of the 3rd party material: I have obtained as much as I need from her phone. I have just received her Local Authority Records from [Council] and I am awaiting her medical records and school records. Once I have reviewed this material, I will be able to go to the CPS for a decision. Unfortunately, as you are no doubt aware, the CPS will not entertain any files for charging decision unless this material is reviewed without exception regardless of the circumstances.”
Sarah Champion
I think we all—well, most of us—got a fantastic briefing from Big Brother Watch, Amnesty, End Violence Against Women and so on. Within that, they refer to these things as digital strip searches, which tend to be carried out more often on women than men.
Perhaps I can read something out and ask for my hon. Friend’s opinion:
“The scale and depth of the police’s mobile phone searches are incomparable with the police’s legislative powers to carry out physical searches.”
An average phone
“would amount to police searching someone’s property and taking copies of all photographs, documents, letters, films, albums, books and files.”
Furthermore, some
“phones can contain over 200,000 messages and over 100,000 photos”,
and the information
“can run to many thousands of pages. An average individual’s mobile phone can contain the equivalent of 35,000 A4 pages of data.”
Will my hon. Friend, and indeed the Minister when she speaks, comment, first, on the relevance of that; secondly, on why, digitally, police have so much further reach, without the necessary applications to court in place; and, thirdly, on the impact—my hon. Friend rightly mentioned this—that that is having on court and CPS time, and the costs associated with it, in an already highly clogged-up court system?
Sarah Jones
My hon. Friend has made a series of correct points. Across the board, in the digital and the online worlds, when it comes to laws, we are behind what is happening in the real world. A significant number of changes need to be looked at to come up to date with what is already happening. We would argue that this is one of those examples.
As well as impacting victim attrition, this issue is a factor in deciding whether to even report a rape or a crime in the first place. The Victims’ Commissioner survey of rape complainants showed that, for some, scrutiny of their personal lives—including their digital lives—was a consideration in their decision not to report. For those who did report, the experience was felt to be “invasive” and “traumatic”, with many feeling that the process was not properly explained. The survey stated:
“Just 33% agreed that the police clearly explained why any request to access mobile phone and other personal data were necessary and 22% that they explained how they would ensure that data would only be accessed if relevant and necessary. Requests for these data were often considered invasive and intrusive, and survivors had serious concerns about this.”
A female is quoted as saying:
“I was also reluctant to do so because I felt my [F]acebook data and mobile phone information would not have supported my account as I had been friendly with the perpetrator before the incident.”
Another said:
“I was happy to provide my mobile phone for them to download all the vile messages that supported my assaults. The police said they would download all messages between me and my ex-husband but they actually downloaded all of my phone every message…and all my privacy was gone.”
Many respondents felt that they had no choice but to hand over devices for scrutiny, and that raises issues around what is meant by “voluntary” in the context of a police power. Arguably, it confirms the need for safeguards in legislation, which speaks to what my hon. Friend the Member for Rotherham said about the power balance and what “voluntary” means. The Victims’ Commissioner said:
“Many survivors said they wanted to help with the investigation and achieve a positive outcome. Some did not believe that they could refuse such requests, that they did not have anything to hide, or thought the request was simply part of normal investigation procedures. However, most survivors had concerns around the disclosure of personal data and access to records.”
A 2020 report by the Information Commissioner on mobile phone data extraction outlined that the way in which police were operating did not comply in a number of respects with data protection legislation, and argued that the gateway of consent that police had been reliant on was not open to them for a number of reasons. They could rely on “strict necessity” for law enforcement purposes, but that comes with a number of prior conditions that must also be met. The report also outlined concerns about the realities of such downloading and how it impacts on other’s rights to privacy, such as family and friends, whose sensitive data may also be contained on the complainant’s mobile, but from whom consent is never sought.
A great deal of work has been done at policy level to address some of the issues, but none of the work to date has sought to alter police powers to obtain and scrutinise a digital device. Existing case law legislation and guidance make it clear that agreement to digital extraction can be sought only if the officer believes that relevant material can be extracted from a phone for criminal investigations—that means that it is relevant to a reasonable line of inquiry.
Sarah Champion
My hon. Friend would be making an incredibly powerful argument if she was making it on behalf of the criminals, but she is actually making it on behalf of the victims of crime. Surely, this level of invasive behaviour as regards their most private and personal things, after they have been the victim of a crime, is truly shocking.
Sarah Jones
I completely agree. The issue of people having things on their phone that relate to their family or friends, which they feel it would be terrible for others to see, has not been thought through.
In the Bater-James Court of Appeal judgment, the judges were clear that there should not be speculative searches, and that there must be specificity based on a reasonable line of inquiry. The information should be extracted only in so far as it is strictly necessary and proportionate to the investigation, and the officer must be satisfied that there are no other, less intrusive means available to them of pursuing that line of inquiry. It is vital that the police can rely on “strict necessity” for law enforcement purposes from the perspective of data protection, but it is also vital that the victims agree to the download, meaning that they fully understand what is being sought, and that the agreement is freely given.
In an evidence session last week, we heard from Martin Hewitt of the National Police Chiefs’ Council that there is an ever-increasing
“volume of digital evidence that is required for almost every investigation.”
He said:
“That has created real pressure on the time limits of investigations and our ability to gather the evidence that we need to take an investigation forward. We have increased the capability. It is partly about equipment and having the right equipment to be able to extract digital evidence. It is also about having officers and staff who have the right capabilities to assess that evidence and produce it in an evidential form…However, the flip side and the really important point is making sure that what is being done is lawful, proportionate and necessary. Again, that side of the work is equally important…So we need the legal framework to allow us to do that properly and we then also need the resourcing and the capabilities to do it within the right time limits.”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 18 May 2021; c.16, Q21.]
Sarah Champion
My hon. Friend talks about the being able to access the device only if there is a reasonable line of inquiry. Should the police or investigating body also look to follow that reasonable line of inquiry through other methods, rather than automatically making a call on that digital device?
Sarah Jones
My hon. Friend is absolutely right: other means of investigating should be pursued before there is that intrusion of taking people’s phones. The Victims’ Commissioner has recommended that guidance be issued mandating that a record be made of the decision-making process of the authorised person in identifying a reasonable line of inquiry, so that it can be scrutinised at a later date.
The next problem is that clause 36(5)(b) states that an authorised person using the power should be
“satisfied that exercise of the power is necessary and proportionate to achieve that purpose.”
The Victims’ Commissioner advises that the test should be that the authorised person is satisfied that exercise of the power is strictly necessary and proportionate to achieve that purpose, and we have incorporated that language into our new clauses. Statute and case law insist on strict necessity as the only appropriate test in circumstances where sensitive data—such as health data, sexuality data, or information about others—will be processed. A complainant’s phone will nearly always contain such information, and as such will automatically require sensitive processing. In their clauses, the Government have removed “strictly” from the test, creating a far lower threshold than the one that the Data Protection Act 2018 intended for processing this type of material, and meaning that victims’ article 8 rights are less protected.
The next problem is that the phrase “reasonably practicable” in clause 36(7)(b) is incompatible with the data protection legislation, and there are concerns that this gives police a means of easily dismissing other options. The term
“strictly necessary for the law enforcement purpose”
under the Data Protection Act places a higher threshold on processing based on this condition. As my hon. Friend the Member for Rotherham said, controllers need to demonstrate that they have considered other, less intrusive means, and have found that they do not meet the objective of the processing. The test does not ensure that. Under the clauses, police could decide, having considered alternative means, that it is not practical to get the information via those means. The risk for rape victims is that, both culturally and due to operational constraints, the most practical or easiest path to obtaining the information sought will nearly always be the victim’s phone. Again, normal practice is being bolstered by this legislative power, and there are limited safeguards for victims.
The final point of concern for the Opposition is that in the clauses, as my hon. Friend the Member for Stockton North said, the authorised person has no obligation to obtain the views of children and those without capacity when seeking to obtain information from their phones. Neither the police nor the person giving agreement in those people’s stead is obliged to ensure that their views are considered.
Sarah Champion
This relates to amendments of mine that will be debated later. I wonder whether something needs to be inserted about language competency. My amendments deal with asylum seekers who do not have English as their first language. Should language competency also be a consideration, so that we ensure that people actually understand their rights?
Sarah Jones
Yes. Whenever people hand over personal information, they need to know why they are doing so, and the implications. That is as important for a child as for an adult, and we need to make sure that principle is enshrined properly in law.
It is important to safeguard the human rights of children, and to ensure that only specified persons can agree to handing over information and providing a device on behalf of children, who must be consulted before a decision is made. The same should apply to adults without capacity, and we have effected this principle in our new clauses.
Another issue—the Minister was looking at this last week —is that for the purposes of this chapter, clause 36(10) defines an adult as a person aged 16 or over, and a child as a person under 16. Hazel Williamson, chair of the Association of Youth Offending Team Managers, said in evidence to us last week:
“We should treat children as children until they are 18 and they should be sentenced as a child until they reach the age of 18. In an ideal world, we would look beyond that, because many people do not develop fully, in terms of brain development, until they are in their mid-20s.”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 20 May 2021; c.136, Q223.]
Our amendments would change the age from 16 to 18. I would like to learn from the Minister why the Government chose to define “adult” in that way.
While we welcome the code of practice attached to this legislation, there is no detail yet about what it may contain, and there is no duty on the Secretary of State to consult victims’ representatives or champions in creating it. Our new clause would require the Secretary of State, when preparing the code of practice, to consult a range of parties, including the Information Commissioner, the Victims’ Commissioner, the Domestic Abuse Commissioner and other regional and national bodies.
Our new clauses also list matters that the code of practice should address, because protection for victims should be in the Bill. Clauses 36 to 42 provide the police with a wide-ranging power to obtain and scrutinise victims’ phones, with virtually no safeguards for victims. It is said that some protections are intended to be put into the code of practice, but the police will not be obliged to follow it. There are concerns that the clauses will provide the police—and the Crown Prosecution Service, via the police—with a legal basis for carrying on as they have been. The police accept that the Victims’ Commissioner’s proposals are appropriate for their purpose, and would give a better balance as regards victim protection. I thank the Victims’ Commissioner and her team for all their work to guide us though this tricky area of law. I hope that the Minister will listen to the concerns we have raised.
Sarah Champion
I thank my hon. Friend for all the points she made, which, to be quite honest, are common sense, but would cause a huge shift in victims’ and survivors’ perceptions of their rights. I have questions for the Minister.
On data storage and security, I am sure we were all pretty shocked and disgusted to hear that images relating to Sarah Everard were not secure in the police system. While I have a very high regard for the police, they can be a leaky sieve—let us be honest. Why do we not simply clone phones at the point of taking them? Why is it months, or usually years, before the victim gets their phone back? Would it be possible to put in legislation or guidance a timeframe on how long that phone can be held for? Having spoken to officers, it seems that cloning a phone is complicated and geeky; it tends to be put in a back drawer until they absolutely have to do it. A timeframe would give a lot of comfort to victims and survivors; they would know it was only a week until they got their photos back, for example.
Finally, a myth has been perpetuated that victims and survivors have to hand over their phone or mobile data to the police or their case will not be taken forward. I have heard examples of victims and survivors being told expressly that if they do not hand it over, they are withholding evidence and could be prosecuted. At that point, unfortunately, a number of survivors drop out of the process and withdraw their charges altogether. If the Minister is able to give reassurance on that, that would be hugely appreciated.
I turn to amendment 115, on the list of people who may extract data. The list is pretty extensive, but one group stood out: immigration officers may request a mobile phone. A few months ago, I went to a large asylum hospital in my constituency, where there were 50 to 100 men—I do not know how many—and what concerned them most was that, literally as they entered the country, their mobile devices and indeed clothes were taken off them. There was no debate or explanation; it is just part of the process.
I completely understand the argument that very bad people, such as gangmasters, who come into the country may have a lot of contacts that are relevant to police inquiries. The police and transport police are already on the extensive list of people who may access electronic devices, so if an immigration officer was concerned, they could get a police officer to take the digital device away. That is not a problem. Extracting data is a complex process that requires specialist experience, and it ought to be managed under the law. I am concerned that we are asking immigration officers to be incredibly mindful, and to be trained and resourced, and to have all the skills, to request that device.
The people I met fell into three camps: economic migrants, who have paid to come over here; people who have been trafficked over here; and those brought in specifically for modern slavery. All the men I spoke to wanted to see pictures of their loved ones. They wanted those memories from home, and a mobile phone may be the best way to hold those memories and connections.
I do not know anyone’s telephone number aside from my parents’—it was the one I grew up with. I can call the police, the NHS helpline and my mum, but everything else is stored on my phone. If I lost it, I would not know how to respond—and I have back-ups that I can access, and English as my first language. When I changed phones, I did not download properly and lost five years of photos. That was so painful. Imagine someone being trafficked into this country, and probably horrifically abused on the way in. The one thing they can hold on to is their memories on that digital device, but that is taken away. They have no information about why it was taken, or when it will be returned, and all their contacts have been lost.
All the points that my hon. Friend the Member for Croydon Central made apply in this case. Immigration officers are one of the groups who may take these devices—this is not a dig against immigration officers, who do a difficult job—but in any other situation a police officer or a court order would be required to take such detailed data. I ask the Minister please to remove immigration officers from the list.
Victoria Atkins
I welcome the discussion about this chapter of the Bill, because the framework we are setting out is a really important step forward in improving the expectations about and management of digital data that victims and complainants may have on their digital devices. Of course, completely understandably, the focus has been on complainants in sexual violence cases—I will go into some detail on that in due course—but the chapter applies across the board. If, for example, in cases that do not relate to sexual violence, a mobile phone is deemed to be relevant and the authorised person is satisfied that the exercise of the power is necessary and proportionate, this chapter will apply.
Victoria Atkins
Thank you. The Minister for Crime and Policing, my hon. Friend Member for North West Hampshire (Kit Malthouse) answered the urgent question on the timing of the rape review. Colleagues will know that for the last two years, the Government have commissioned intensive research into each stage of the process within the criminal justice system of a rape case or a sexual violence investigation, from the moment of reporting through to the moment when the case finishes, whether by way of a verdict or if a trial does not go ahead for any number of reasons. We had very much hoped to publish that review by the end of last year. However, we were very understanding of the fact that the Victims’ Commissioner and women’s charities wanted to make representations, in particular looking at the shadow report by EVAW—End Violence Against Women. We were mindful that there was a super-complaint under way as well. Therefore, we have paused publication in order to take into account some of those factors.
The Minister for Crime and Policing informed the House this week that we plan to publish the review after the Whitsun recess. It will show the Government’s intentions in relation to this particular category of cases, sexual violence cases, and will of course sit alongside this Bill, but will go much further than the Bill. On some of the situations, scenarios and experiences that were described today and last week in evidence, I just urge caution until the rape review is published, because there may be answers in that document.
In terms of the legal framework, I think it is really important that we have this in the Bill and that the rights of victims and of suspects and defendants are set out and clarified and that we introduce consistency where that has been alleged in the past to be missing.
I note just as an example that one of the other ways in which we are really trying to help victims of sexual violence is through support for independent sexual violence advisers. We already have ISVAs working with victims across the country. This year, we have been able to announce the creation of 700 new posts, with some £27 million of funding. I give that just as an example. This is an important part of our work, but it is not the only piece of work that we are doing to address some of these very genuine concerns.
Sarah Champion
I am hearing everything that the Minister is saying. Knowing that the review is coming out—I assume it is something that she has been working on or very closely with, because of her intense involvement and support in this area—does she feel that the measures in the Bill are proportionate or are they something that, once the review comes out, she may look at changing, to ensure that the safeguards that she speaks of are embedded in the final Act that we see?
Victoria Atkins
We have been working together on this. We must not not forget that the background to the legal framework has to take into account the Criminal Procedure and Investigations Act 1996 and the more general disclosure rules, for example. But this has been very much a piece of work across Government, because we want this framework to give confidence and clarity to victims and to suspects, but also, importantly, to the police and the Crown Prosecution Service, because they are the ones who must administer and work within the legal framework and the code of practice.
If I may, Mr McCabe, I will take a bit of time, because this is such an important measure and I am mindful that there are questions about it, to set out some of the detailed thinking behind the way in which the clauses have been drafted. The current approach to the extraction of information from digital devices has indeed been criticised by some as feeling like a “digital strip-search” where devices have been taken as a matter of course and where, in many cases, all the sensitive personal data belonging to a device user was extracted and processed even where it was not relevant to the offence under investigation. We absolutely understand the concerns that have been raised in relation to that.
Victoria Atkins
I will deal with that in detail in due course. Just so that colleagues understand how that age was settled upon, in the drafting we carefully considered people’s views, including the Information Commissioner, about the freedoms and the feelings of power and authority that users of devices have. We settled on the age of 16 because we understand that a 16-year-old is different from a 12 or 13-year-old, if their parents have allowed them mobile phones, although I am banning my son from having a mobile phone until he is at least 35, but there we go. A moment of lightness, sorry.
I will deal with the point in more detail later, because it is important, but there is a difficult balance to maintain between rights of victims, suspects and defendants but also rights of users, particularly under the European convention, so that has been the Government’s motivation in this. However, we are alive to scrutiny.
Sarah Champion
I think this involves the focus that I hope the Minister is going to come to. I hear everything she has just said about the justification and I am going along with that, but it is clear in subsection (10):
“In this Chapter—
‘adult’ means a person aged 16 or over”.
Why was that specific wording chosen rather than “the remit of the clause covers people from the age of 16 onwards”, for example?
Victoria Atkins
I will come to that later, but the hon. Lady knows that I am in listening mode on this. The Bill includes requirements to obtain agreement to extract information; to ensure there is reasonable belief that the required information is held on the device; and, before using this information, to consider whether there are less intrusive means of obtaining it. That is an important point that I know hon. Members have focused on. The clauses will ensure that the victim’s right to privacy will be respected and will be at the centre of all investigations where there is a need to extract information from a digital device.
The Bill also includes a new code of practice. This will give clear guidance to all authorities exercising the power. It will address how the information may be obtained using other, less intrusive means; how to ensure that agreement is freely given, and how the device user’s rights are understood. All authorised persons will have a duty to have regard to the code when exercising or deciding whether to exercise the power. The clauses are also clear that the code is admissible in evidence in criminal or civil proceedings and that a failure to act in accordance with it may be taken into account by the court. It will give up-to-date, best practice guidance for selectively extracting data considering existing technological limitations. That will be updated as and when further capabilities are developed and extended to all authorities able to use this power.
Sarah Champion
I hear what the Minister says about cloning and the risk that it is not suitable for admission in court. Will the Minister comment on a kindness that could be done—giving a clone of photos to an asylum seeker, for example?
Victoria Atkins
I am so sorry—I have not quite understood the hon. Lady. On the taking of a phone, if I have just been told that we are concerned about the ramifications of cloning it, I do not see why we would clone it despite those reservations in order to provide photographs. I would be very uneasy about having differences in how the police handle digital data depending on the personal circumstances of the person from whom they have taken a phone, including nationality. I would be very cautious about going down that road.
Sarah Champion
I did not mean to be used in court. I meant for the individual who has lost their one contact with home—that they could get a copy or a print-out of photos, rather than the device just being taken away with no explanation of when they are going to get it back again.
Victoria Atkins
I am very cautious about distinguishing between different victims. Perhaps the hon. Lady is alleging that the person she is talking about is a victim. The framework is about consistency and clarity, and I would be concerned about having caveats here and there in order to fit individual facts. Part of this test is about relevance, necessity and proportionality. Those are the tests that we are asking officers to apply, and we would have to apply them across the board.
There are situations within the framework whereby the power can be used without agreement, such as to locate a missing person where the police reasonably believe that the person’s life is at risk. Under clause 36, the police may have good reason to believe that a device has information that will help to locate the person. In such circumstances, clearly the person is not available to give their consent, so clause 36 ensures that officers can extract data, if it is necessary and proportionate, to protect the privacy of the user. That also applies in relation to children who need to be protected.
New clause 49 raises the bar for the exercise of the power in clause 36(1). The necessity test under new clause 49 is one of strict necessity. I am not persuaded that adopting the phrase, “strictly necessary and proportionate”, instead of “necessary and proportionate”, will make a material difference. This phrase is well used in the Bill. I note that article 8.2 of the European convention on human rights—the very article that people are relying on in relation to the framework—permits interference with the right to respect for private and family life. Such interference is permitted where it is necessary to achieve various specified objectives.
Victoria Atkins
On what the hon. Lady has described, I am not sure what difference it would make. I am trying to put myself in the boots of a police officer. Would a police officer ask for data if they read the words, “strictly necessary”, but not if they read the word, “necessary”? Actually, the problem that has been identified by the figure quoted by the hon. Lady is police officers’ understanding of the legislation, which comes back to training. Article 8, on which many rely in this context and in this part of the Bill, refers to “necessary” interference, and I am not clear what “strictly necessary” would add to that.
New clause 49 seeks to provide that information may be extracted only for the purpose of a criminal investigation
“where the information is relevant to a reasonable line of enquiry.”
There are safeguards within the clauses to ensure that information is not extracted as a matter of course, and they have been drafted with respect for victims’ privacy in mind. They include a requirement that the authorised person has a reasonable belief that the device contains information that is relevant to a purpose for which they may extract information, and that the exercise of the power is necessary and proportionate to achieve that purpose.
Sarah Champion
I hear everything the Minister is saying and it is very plausible, but I want to challenge her assertions on necessary, proportionate and clear lines of inquiry, based on the answer I received to a written question to the Home Office on 11 November. I asked about the process of extracting mobile phones. The Under-Secretary of State for the Home Department, the hon. Member for Croydon South replied:
“Immigration Enforcement search all migrants”—
at this point, “all migrants”, so we do not know yet whether they are an asylum seeker, being trafficked or are here for nefarious purposes—
“upon arrival at the Tug Haven at Dover. In the event that a mobile phone is discovered it will be seized as part of an investigation into the organised crime group involved in the facilitation.”
Again, we do not know if they are a criminal or a victim at this point, but the phone will be seized regardless.
“The migrant will be informed verbally that the phone will be kept for evidential purpose for three to six months. They are provided with a receipt and contact details. Attempts will be made to communicate this in their first language, although this can be challenging due to external factors.”
So people arrive here, immediately their phone is taken away from them and they might not even know why. It is great that within “three to six months”, they are meant to have that response—
Sarah Champion
Sorry, Minister? I do not think that the reality on the ground—the reality that the Home Office acknowledges—backs up what the other Minister is saying about reasonable, proportionate and lines of inquiry, because it is happening to every migrant coming into this country.
The Chair
I know this is important detail, but I remind the hon. Lady that interventions should not be too long.