Police, Crime, Sentencing and Courts Bill
(Limited Text - Ministerial Extracts only)
Read Full debateWednesday 17th November 2021
(2 years, 5 months ago)
Lords ChamberPolice, Crime, Sentencing and Courts Act 2022 View all Police, Crime, Sentencing and Courts Act 2022 Debates Read Hansard Text Amendment Paper: HL Bill 40-IX Ninth marshalled list for Committee - (15 Nov 2021)
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I thank the noble Lords, Lord Paddick and Lord Coaker, for speaking to these amendments, as well as the noble Baroness, Lady Armstrong, who is back in her seat—the timing was pretty good, because we had an hour’s break; in fact, it was an hour and a half by the time we had finished Questions.
Before I turn to the specifics of the amendments, it might be helpful to the Committee if I first outline why we are introducing these new orders and why we think they will make a positive contribution to tackling knife crime, which has risen over the last seven years, as the noble Lord, Lord Coaker, pointed out. I agree with him on the multi-agency approach. He brought up our local government days. Absolutely the most effective initiatives, which have grown over the last few years, are those which take that public health approach, with all agencies working together. On testing, the pilots will be a very good way of assessing whether what we have proposed is effective when put into practice. There are four pilot areas, which I shall go through shortly. I say to the noble Lord that it will be independently evaluated.
The Committee would not disagree that every time someone carries a knife, they risk ruining their life and the lives of others. Knife crime is blighting our communities and the Government are determined to tackle the scourge. I again totally agree with the noble Lord, Lord Coaker—again, this probably goes back to our local government days—that engagement with communities is vital, because they not only support their young people not being knifed to death but they will support the police in what they are trying to do. We have just talked in the Urgent Question repeat about trust from communities in what the police are doing.
We have committed to putting an extra 20,000 police officers on our streets. We have also committed £176.5 million over the last two years through a serious violence fund to address the drivers of serious violence at the local level and significantly bolster the police response. This includes £70 million to support violence reduction units in 18 areas across the country most affected by serious violence. We have also committed a further £130.5 million to tackle serious violence and homicide in the current financial year.
Stop and search has taken 11,000 knives off the streets and resulted in 74,000 arrests in 2019-20. However, we all know that we have more to do. As the noble Lord, Lord Coaker, said—I apologise that I keep quoting him—we all want to know what works and what will drive out the scourge of knife crime. Too many criminals who carry knives or other offensive weapons go on to offend again—that is indisputable. We need to send a clear message that if people persist in carrying knives, they can expect to be caught and face a prison sentence.
As I have said, stop and search is a vital tool to crack down on violent crime. As I indicated in an earlier debate, we have already made it easier for forces to use existing powers. Our message is simple: if offenders are vulnerable and want to move away from crime, we will support them, but if they continue to carry knives and weapons over and over again, serious violence reduction orders, or SVROs, help to end that reoffending cycle. They will give the police powers to take a more proactive approach and make it easier to target those already convicted of offences involving knives or offensive weapons, giving them the automatic right to search those offenders and help tackle prolific, high-risk offenders.
SVROs are intended to be used as part of a wider approach to support offenders. We expect that they will provide a credible reason to resist pressure to carry weapons, thus acting as a deterrent and helping to protect vulnerable first-time offenders from being drawn into further crime and exploitation by criminal gangs.
We understand the concerns around disproportionality and the impact of stop and search on our BME communities but, as I said in an earlier response, let us not forget that young black people are 24 times more likely to be victims of homicide than young white people. Young black people are dying, their families are suffering and their communities are being disproportionately impacted. We must do better. We must give the police tools that will enable them to take a more targeted approach, focusing their efforts and resources on those they know carry knives.
As I have said, these orders will be piloted before being rolled out across England and Wales. Clause 141 sets out the detail of this. The pilot will help us build an understanding of the impact and effectiveness of the new orders and, as required by Clause 141, we will lay a report before Parliament on the operation and outcome of the pilot. I hope that this gives the noble Lord, Lord Coaker, some comfort.
I now turn to the specifics of the amendments. Amendments 224, 227 and 237 would raise the threshold for the standard of proof required to impose, vary or renew an SVRO from the civil standard, which is the balance of probabilities, to the criminal standard, which is beyond reasonable doubt. Before I go any further, I thank my noble friend Lord Moylan; I forgot to acknowledge that he made a very good speech earlier.
New Section 342A(3) of the Sentencing Code provides that an SVRO can be made if the court is satisfied, on the balance of probabilities, that a bladed article or offensive weapon was used by the offender in the commission of the offence, or that the offender had a bladed article or offensive weapon with them when the offence was committed. An order can also be given if the court is satisfied, on the balance of probabilities, that a bladed article or offensive weapon was used by another person in the commission of the offence—the commission of the offence is the crucial point here—or that another person had a bladed article or offensive weapon with them when the offence was committed and the offender knew, or ought to have known, that that would be the case.
This means that, when considering any applications for an SVRO, the court should apply the civil standard of proof when determining whether the individual in respect of whom the application is made has committed an offence involving a bladed article or offensive weapon. This civil standard is not new; it was accepted in your Lordships’ House in the context of domestic abuse protection orders earlier this year, or at the end of last year.
I am aware that there are concerns about this approach. However, the Bill provides that the court may hear evidence from both the offender and the prosecution when considering whether to make an SVRO. It is anticipated that, in most cases, it will be clear beyond reasonable doubt whether the offender used or had with them a knife or offensive weapon in the offence, and the offender may have been convicted of a knife or offensive weapons offence.
However, there may be cases where the fact that an offender used or had with them a knife or offensive weapon cannot be proved beyond reasonable doubt. In these cases, we believe that the civil standard, namely the balance of probabilities, is appropriate to enable the court to consider whether an SVRO is necessary in respect of an individual, given the aims of the order to protect communities and deter offenders from future offending. The criminal standard of proof will apply in any criminal prosecution for breaching an SVRO. As I said, this approach is in line with other civil orders, such as domestic abuse prevention orders, which we debated at the beginning of the year.
Amendment 225 would restrict the circumstances in which an SVRO may be made. Currently, proposed new Section 342A(3) provides that an SVRO can be made if a bladed article or offensive weapon was used by the offender in the commission of the offence or that the offender had a bladed article or offensive weapon with them when the offence was committed. This allows for circumstances where a bladed article or offensive weapon was not used in the offence, but the offender had a bladed article or knife with them when the offence was committed.
I remind the Committee that for an SVRO to be made a person must be convicted of an offence involving a knife or offensive weapon. So the Sikh or chef, in the proposition of the noble Lord, Lord Paddick, would not generally be convicted of an offensive weapon attack—and that applies to the electrician and his mate. I am sorry; I am trying to read my own writing here.
Baroness Chakrabarti (Lab)
I have a quick question, because I want to be clear about this point in relation to something the noble Lord, Lord Paddick, said earlier. If a Sikh, who is carrying just their religious knife, is in a fight and is convicted of common assault, is the SVRO now available in that context?
Baroness Williams of Trafford (Con)
It is always dangerous to talk about specific cases but, if the knife has not been used in the commission of the offence—
Baroness Williams of Trafford (Con)
If the Sikh was going about his business with his knife in his pocket, he would have reasonable excuse. If he then got into a fight and the knife was not used in the commission of the common assault, the knife would be irrelevant to the case. But I must absolutely caveat my comments: the court would decide the facts of the case.
Lord Paddick (LD)
Could I further clarify what the Minister has just said? If the Sikh becomes involved in a fight and does not go for the knife that they are carrying during that offence, the Sikh can still be made subject to an SVRO, because they committed an offence and had a knife with them at the time the offence was committed, even though the weapon was not used.
Baroness Williams of Trafford (Con)
My Lords, I have just fallen into a trap that I do not like to fall into, which is to take on specific cases. The court would have to determine the facts of the case to decide whether the knife was relevant and, therefore, whether an SVRO could be made.
Lord Paddick (LD)
This is Committee and it is important to get this clear. My clear understanding of the legislation is that it does not matter whether the knife was used in the commission of the offence; it is simply the fact that the person had a knife with them when they committed the offence which means that not only can that person be made subject to an SVRO but any person convicted with them who did not have a knife can also be made the subject of an SVRO by the court. So, without using specific examples, can the Minister please clarify that I am correct?
Baroness Williams of Trafford (Con)
What I can clarify is that I will not take theoretical cases again. But the court would need to consider whether in the circumstances it is proportionate to make an order. That does not go into the specifics of any given case.
Lord Coaker (Lab)
The Minister might want to take some advice on this, but I think the relevant piece of legislation in Clause 140 is proposed new Section 342A(3)(b), which says that
“the offender had a bladed article or offensive weapon with them when the offence was committed.”
They do not have to use it; it is just the fact that they are carrying it and have it on them.
Baroness Williams of Trafford (Con)
I think I backtracked quite a bit to say that the courts would then make the judgment call on whether the SVRO would be made, based on the facts of the case. I am not saying that, theoretically, it could not happen, but the courts may decide otherwise. It would depend on the facts of the case.
Lord Moylan (Con)
Perhaps I may just add that it seems so widely drawn that the first condition, in proposed new subsection (1), is that there has to be an offence. It does not say that there has to be an offence involving violence. So, first there has to be an offence. Then you engage proposed new subsection (3)(b): during the commission of the offence, whatever it might have been, did the person involved carry a knife? If the offence was, say, a driving offence, I am sure that an SVRO would not be applied for or granted, but there is a large area of discretion here. When you take it a little further into proposed new subsection (4), it is simply an offence—the carriage of a knife and the question of “ought to have known”. So the whole thing wanders off into this speculative landscape where evidence does not seem to matter and it is all mental constructions. I am sorry for going on.
Baroness Williams of Trafford (Con)
It is no problem at all; this is Committee, where we clarify these issues. But I think it is fair to say that the trigger for the SVRO, essentially, is the conviction.
Lord Carlile of Berriew (CB)
An interesting criminal law debate is developing and I cannot resist joining in. I very respectfully suggest to the Minister that this is a situation in which the use of examples, if they are worked up, is very important and would be extremely useful. My view is that she is right about some of this but possibly not all of it, and that the noble Lord, Lord Paddick, is possibly right about quite a lot of it but wrong about some of it—for example, the relevance of previous convictions, which may be used far more these days than he imagines. Previous convictions are available as evidence of propensity and are frequently used in criminal trials. I respectfully suggest to the Minister that a series of indicative examples should be worked up and put in the Library in advance of Report, because it would make these questions much easier to answer.
Baroness Williams of Trafford (Con)
I thank my noble friend—and he is my noble friend because he has come to my rescue time and again. I am not a lawyer and even less of an expert in criminal law.
Lord Paddick (LD)
Perhaps I could just say that those examples should include, if they are right, non-violent offences where a weapon is not used in the commission of the offence in any way, where the person only has the weapon on them, and they have an accomplice who did not have a knife on them but should have known that the person had one concealed on their person when they committed a non-violent offence without using the weapon.
Baroness Williams of Trafford (Con)
I will most certainly do that. So this is offences where the knife is not actually deployed and the person with the individual with a knife in their pocket would not have known that the knife was in their pocket. Without getting myself into further trouble, I would say that the courts would take those facts into consideration—but I will elect to write to noble Lords with as many permutations and combinations as I can possibly think of before Report.
Lord Marks of Henley-on-Thames (LD)
I have no wish to get the noble Baroness into more difficulties, but the problem arises because she said that the court would have to consider the relevance of the carriage of the knife to the offence, and that is quite simply wrong. I would be very grateful if the noble Baroness, before any examples are produced, would concede that, and then discuss whether these amendments are not very important in light of the answer. There is the weakness—the lack of the nexus between the carriage of the knife and any offence that is proved.
Baroness Williams of Trafford (Con)
I think I need to reflect further on what noble Lords have said. I will try to answer the noble Lord’s question in a letter before we start talking about examples. We are, after all, in Committee, and I am learning, like other noble Lords, as we go along.
Amendments 226, 226A and 226B would remove the provisions that enable a court to issue the SVRO if two or more people commit an offence but not all of them used or were in possession of the weapon—that is slightly going back on what we were discussing. When a knife offence or offensive weapon-related offence is committed, it is not always the case that all the offenders had the weapon in their hands—as the noble Lord, Lord Paddick, pointed out—during the commission of the offence. But if the court is satisfied that a person knew or ought to have known that another person committing the offence had a knife or an offensive weapon during the commission of the offence, and this person committed an offence arising out of the same facts, we think it would be appropriate for an SVRO to be available. Again, I will put the various permutations and combinations to noble Lords in a theoretical way. This would allow SVROs to be made in relation to all the individuals who were involved and were convicted of such an offence, should the court consider an SVRO to be necessary in respect of those individuals.
This provision intends to cover situations such as a robbery or a fight where a weapon was used by one individual, but where other individuals convicted of offences related to the same facts knew, or ought to have known, that a weapon was being used or carried by another person involved in the offence, even if they themselves were not carrying the weapon. This is very similar to the point made by the noble Lord, Lord Paddick, except that that individual was brandishing the weapon.
Lord Paddick (LD)
I am sorry, but that is not what the proposed law says. It does not talk about when there is a fight and somebody uses a weapon, and a person who was with them should have known they had a weapon. What the Bill as drafted says is that anybody who commits any offence—such as, for example, smashing a car window—who has a knife in their pocket can be given an SVRO. It may be that that is what was intended, but it is not what the legislation says.
Baroness Williams of Trafford (Con)
What I am saying, and what I said earlier, is that it will be up to the courts to decide whether it is appropriate, bearing in mind the facts of the case, and whether the court thinks an SVRO in respect of an individual is necessary to protect the public or any particular members of the public in England and Wales.
Baroness Chakrabarti (Lab)
First, I want to thank the Minister and do not want her to think any of this is meant to be aggressive or to interfere with what she is doing. Secondly, these hypotheticals are incredibly important to test the provisions; they are not some attempt to be clever and dance on the head of a pin. It is super important to get the criminal law right, and that can only be done, in my view, by testing it against the sorts of scenarios being offered.
The Minister quite rightly says, “We are creating a disposal, and in the end the courts will have to administer it”. None the less, the Government are creating the disposal and setting thresholds for its availability. With respect to her, the Government must have a policy and intention, and there is therefore a valid question about whether it is the Government’s intention in drafting and pursuing this legislation that, for example, any male Sikh, or any Sikh, who carries a ceremonial knife, however small, will always theoretically be subject to this additional exposure to a disposal to which, by definition, people of other faiths will not be subject. I am not saying that to be inflammatory, but we have to get this right. The Minister herself has talked about equality impact assessments, and so on. It may be that this proposal slipped through the net and is worth looking at again before the next stage.
This is not just an issue for the Sikh community but for other people such as chefs or electricians who are carrying knives and are involved in a crime that theoretically is potentially not even violent crime but perhaps minor shoplifting, possession of prohibited drugs or whatever. They are now, suddenly, potentially subject to this disposal. It is not simple enough to assume that when a specific disposal such as this one, with draconian consequences, is made available for sentences it would never be used. The courts might rightly think that the Government’s policy must have been that if you carry a blade or point, regardless of whether you were carrying it illegally in the first place, you take your chances, and that if you get involved in shoplifting or is found in possession of drugs, that is too bad—you now get this additional penalty and it serves you right. That is the signal that we are sending on violent crime. I hope that that is not the intention but if it is, the Committee will need to know.
Baroness Williams of Trafford (Con)
We have covered a spectrum of different types of offending and behaviour. We must not forget that at the point at which—no pun intended—someone is issued with an SVRO, they will have been convicted by the court of a knife or offensive weapons offence. The court will also, I am sure, take into consideration previous patterns of behaviour. If the Sikh who got involved in a fight and had his knife with him had no previous convictions for weapons offending, that would be quite different from a repeat offender. It would be for the court to consider whether to impose the SVRO. I hope that I have made that clear and that it will become clearer to noble Lords by the examples I will provide.
Of course, we will consider, in the light of the Committee, whether we have got all the permutations and combinations right. That is what noble Lords do best—scrutinising legislation, and I have the benefit of some serious legal players around the Chamber.
I now move on to the concerns of the noble Baroness, Lady Armstrong, about the disproportionate impact that SVROs might have on some vulnerable groups—primarily women who might be coerced into carrying weapons. I completely empathise with the circumstances in which such women might find themselves. We discussed domestic violence only a few months ago and know the effect that coercive control can have on women. At the heart of what we are doing is committing to preventing offenders of all ages, genders and backgrounds becoming involved in serious violence by developing resilience, supporting positive alternatives and delivering timely interventions.
Baroness Armstrong of Hill Top (Lab)
My Lords, I thank the Minister. My amendment takes out the part that states that a person “ought to have known” that someone else was carrying, rather than that person carrying. That is the bit that is particularly pernicious in terms of the woman that I was talking about.
Baroness Williams of Trafford (Con)
I completely understand that point it in the context of the previous debate. One of the things that we will be testing as part of the pilot is the impact of SVROs on the individuals subject to them, and how to ensure that vulnerable offenders—because sometimes people are caught up in these things completely unwittingly—are directed to local intervention schemes to help steer them away from crime. But SVROs used as part of a wider crime prevention approach will send a clear message that, if people are vulnerable and want to move away from crime, and in particular if they are being coerced into carrying things, or coerced generally, we will of course support them.
Amendment 228 seeks to increase the requirements for SVROs to be made. It would require that an order can be imposed only if the SVRO is proportionate to one or more of the relevant aims of the order. It is already a requirement for the court to consider the making of the order necessary to protect the public, or any particular member of the public, including the offender, from the risk of harm, and to prevent the offender committing an offence. It would be for the court to decide the seriousness of any offence, based on the individual facts of the case, and to decide whether it is necessary and proportionate for an order to be made in respect of an individual. Any order made will be at the court’s discretion.
An individual convicted of an offence involving a bladed article or offensive weapon could cause harm to any member of the public, including particular individuals. The provisions in the Bill allow a wide range of considerations to be made, so that an SVRO will have the greatest impact and protect members of the public, including the offender themselves, from the risk of harm.
Amendments 229, 230 and 231 seek to amend the evidentiary requirements for an SVRO to be made. They would provide that the court may consider only evidence led by the prosecution and by the offender and would remove provisions that allow courts to consider evidence that would have been inadmissible in the proceedings in which the offender was convicted. We think it appropriate that the court can consider a wider range of evidence about the offender that may not have been admissible in the proceedings. This goes in some sense to the heart of what we have just been discussing. For example, in answer to the question from the noble Baroness, Lady Chakrabarti, the offender may have a history of knife carrying that would be relevant to whether an SVRO would be necessary to protect the public.
Amendment 239 would make the guidance to be issued under Clause 140 subject to the affirmative procedure, as recommended by the DPRRC in its report on the Bill. As I have indicated in response to other amendments, we are considering carefully the arguments put forward by the DPRRC and will also reflect on today’s debate before responding to the committee’s report ahead of the next stage of the Bill.
Finally, the noble Baroness, Lady Meacher—through the noble Lord, Lord Paddick—has tabled Amendment 240 to Clause 141, which makes provision for the piloting of SVROs. I talked about this earlier. I can assure noble Lords that we will take the matters set out in Amendment 240 into consideration as we progress the design work for the pilot and agree the terms of the evaluation. That said, the general point is that it is not necessary to include such a list in the Bill. The approach adopted in Clause 141 is consistent, for example, with the piloting provisions in the Offensive Weapons Act 2019 in respect of knife crime prevention orders.
Working with the four pilot forces our aims are: to monitor and gather data on a number of different measures—including, as I said earlier to the noble Lord, Lord Coaker, the impact of SVROs on serious violence; to build evidence on reoffending and the outcomes for offenders who are subject to SVROs; to understand and learn how we ensure that vulnerable people are directed to local intervention schemes; and to understand community responses to the orders.
I think we can conclude by agreeing on the need to do all we can to tackle the scourge of knife crime, which is wrecking far too many lives. I hope that I have been able to persuade noble Lords of the case for the new orders as part of our wider work to prevent and reduce serious violence, and that I have reassured the Committee—although not on certain things, on which I will have to write—that many of the issues raised will be considered as part of the piloting of SVROs in advance of any national rollout. I reiterate my commitment to consider further the DPRRC’s recommendation in relation to parliamentary scrutiny of the guidance. I hope that the noble Lord, Lord Paddick, on behalf of the noble Baroness, Lady Meacher, will be happy to withdraw the amendment.
Lord Paddick (LD)
My Lords, I thank all noble Lords for their contributions to this group, particularly the noble Lords, Lord Moylan and Lord Coaker.
The Minister asked what works. The centre-right think tank Policy Exchange recently produced a report saying that, in reducing serious violence, the emphasis should be on community policing and not on stop and search. That summarises what the noble Lord, Lord Coaker, was saying. The Minister, in earlier proceedings in the House this afternoon, talked about how trust in the police had been seriously damaged recently. Despite that, the Government are giving the police more and more powers that are likely to further damage trust in the police.
The Minister talked about communities—particularly black communities—wanting this sort of thing in order to stop their young people dying on the streets. After I left the police, I went to a pupil referral unit, and students from the unit took me to a local council estate where a young mother holding a baby had been stabbed to death. As we looked at the scene, they said to me, “Yes, we want the police to take knives off the street, but we want them to target stop and search at the people who have got the knives.” To do that, and to target stop and search at those people who are carrying knives, the police need community intelligence, and these sorts of provisions are likely to push the community away, rather than encourage people to come forward with information. Do not get me wrong: targeted, intelligence-led stop and search based on community information can be effective in taking weapons off the street, but quite clearly, as I said on Section 60, with suspicionless stop and search, only one in 100 stop and searches results in a weapon being recovered.
The noble Baroness said that these provisions are very similar to domestic violence prevention orders on the balance of probabilities versus reasonable doubt. Throughout the course of that Bill, we persistently said that that was not acceptable, so the noble Baroness should not be surprised that we are saying it about these orders. However, we need to do all we can to reduce serious violence on our streets. The difficulty is where you have provisions such as this that prove to be counterproductive.
We will come back to this at Report—I can guarantee that. But at this stage, on behalf of the noble Baroness, Lady Meacher, I beg leave to withdraw the amendment.
Lord Marks of Henley-on-Thames (LD)
My Lords, I propose to deal with just one amendment, Amendment 233, which is concerned with the defence of reasonable excuse. I concentrate on that because my noble friend Lord Paddick has covered the ground in this group. But it seems to me—and I agree with what my noble friend and the noble Lord, Lord Coaker, have said—that this group offends against principles of our criminal law and rides roughshod over them, because the overall purpose of the Bill seems to have taken precedence over any degree of thought being given to the detail of what is actually being done.
Amendment 233 in the names of my noble friend Lord Paddick, the noble Lord, Lord Moylan, and the noble Baroness, Lady Meacher, would permit a reasonable excuse defence to an offence committed where an offender subject to an SVRO tells a constable that they are not subject to such an order. The Liberty briefing, for which we are all very grateful, points out that an offender may have committed the proposed offence of telling the police constable falsely that they are not subject to an order even where they honestly and even reasonably believe that the order—the SVRO—is no longer in force, or where they do not understand the question because English is not their first language, or for any other reason.
Looking at the proposed offences under new Section 342G(1), the reasonable excuse defence is presently available only in respect of offences under (a) or (b) of that subsection. The first is if the offender
“fails without reasonable excuse to do anything the offender is required to do by the order.”
The second is where the offender
“does anything the offender is prohibited from doing by the order.”
But there is no reasonable excuse defence available for any of the other three offences. Under (c), I think “notifies the police” means providing to the police,
“in purported compliance with the order, any information which the offender knows to be false”,
while (d) covers denying the order which is the subject of Amendment 233m which I have addressed, and (e) is where the offender
“intentionally obstructs a constable in the exercise of any power conferred by”
the legislation. None of the last three has a reasonable excuse defence available.
In thinking about this proposed section, one is reminded that reasonable excuses may arise in odd and unpredictable ways. Legislation ought to avoid criminalising any behaviour for which the citizen has a reasonable excuse, because criminalising behaviour in these circumstances brings the law into disrepute. If there is no reasonable excuse, the offence is committed and conviction will follow—but if there is a reasonable excuse, there ought to be no conviction.
We have only to remind ourselves that there may be a reasonable excuse for disobeying police officers’ requirements. Tragically, Sarah Everard was persuaded to enter Wayne Couzens’s car, with awful results, because he purported to have the right to require her to do so. We should be open to the view that automatic obedience to the requirements of a police officer is not always sensible, and that offenders, even though subject to SVROs, might well have reasonable excuses for non-compliance with police officers’ requirements.
I suggest that the Minister and her colleagues ought to think about whether reasonable excuse should not be a defence to all these offences. Initially, they might consider that there would not be many cases where a citizen would have a reasonable excuse for non-compliance. But they might also wish to reflect that that does not mean that, in those cases where citizens do have a reasonable excuse, they should be found guilty of a criminal offence. This is an important lacuna in the proposals made here—that reasonable excuse will be no answer to conviction.
Baroness Williams of Trafford (Con)
My Lords, as the noble Lord, Lord Paddick, has explained, this group of amendments deals with further aspects of the new serious violence reduction order. Amendments 231A and 231B would remove the requirement for an offender subject to an SVRO to notify the police of their home address; any changes to their home address; the address of any other premises at which the offender regularly resides or stays; or the address of any place they decide to live in for a period of one month or more.
We included notification requirements in the legislation in order to help officers to identify those subject to an order in their area. It is a common feature of other offender management regimes, including in relation to sex and terrorism offenders, so we are not breaking any new ground here. We stated in the draft statutory guidance that the police should use the notification stage to engage with the offender and clarify the effects of an SVRO: that is, to explain to the offender in ordinary language the requirements and effects of an SVRO and what offences may be committed if they breach the order. This, along with an up-to-date description, could be used to assist with future identification when conducting a stop and search. It is therefore important that we keep the notification requirement as currently drafted to ensure that officers are able properly to identify those subject to an order.
Amendment 233 would create a defence so that an offender can tell an officer that they are not subject to an SVRO if they have a reasonable excuse to do so. I do not see any circumstances where it would be reasonable for an offender not to tell an officer that they are subject to an SVRO if they are asked. It may be that the noble Lord wants to cover circumstances where an offender subject to an SVRO has a reasonable excuse for carrying a knife. In such circumstances, it would be for the police, and ultimately the courts, to decide whether the reasonable excuse defence was made out in the event that the offender was arrested and then charged with an offence in relation to the possession of a bladed article or offensive weapon.
“(9) In this section, “home address”, in relation to the offender, means—(a) the address of the offender’s sole or main residence, or(b) if the offender has no such residence, the address or location of a place where the offender can regularly be found and, if there is more than one such place, such one of those places as the offender may select.”Member’s explanatory statement
This amendment provides a definition of “home address” for the purposes of the notification requirements which must be included in a serious violence reduction order.
Lord Falconer of Thoroton (Lab)
We on this side of the Committee strongly support these excellent amendments. The Youth Justice Board was set up in 1998. Its first chair—a Member of this House, the noble Lord, Lord Warner—gave it a really good start. The whole point is that it gives real drive, not as part of government but within the state, to make changes, because everybody recognises that children and young people have different needs, both to divert them from the criminal justice system and when they are there. Similarly, in respect of women, this is a real opportunity; give it drive.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, as the amendments’ explanatory statements make clear, and as the noble Lord, Lord Marks of Henley-on-Thames, identified, the intention is to provide for the establishment of a women’s justice board for England and Wales which mirrors the rather lengthy provisions setting up the Youth Justice Board. I am grateful to the noble Lord for his kind words. I can assure him that I gave his amendment very careful thought, and my approach to it has not been adversely affected by the support given to it by the noble Baroness, Lady Jones of Moulsecoomb. I also heard what my noble friend Lord Attlee said about his role being to help me: with noble friends being so helpful—well, I will leave that one there.
Lord Falconer of Thoroton (Lab)
My Lords, I join noble Lords in commending the noble Earl for the effort and work that he has put into this and the fact that he has thought it through. I also commend what the noble and learned Lord, Lord Hope of Craighead, said. It was obviously not a detention for training centre that he was passed to, but his experience was successful in diverting him from the criminal justice system. That is an indication that it worked, even if he ended up in the criminal justice system as the Lord President of the Court of Session and a member of the Supreme Court.
I very much agree with what the noble and learned Lord, Lord Hope, the noble Lord, Lord Marks, and the noble Baroness, Lady Jones, said. There are parts of this that we would all agree with. However, we on this side would not support this as a separate sentence. If one looks at the detail, it requires the setting up of a number of rural detention centres. The right thing is for the Government to look at the elements aimed at trying to rehabilitate those in the criminal justice system and use them in the existing system, rather than setting up a whole new network. We admire the noble Earl’s work but think that this is not the appropriate way forward.
Lord Wolfson of Tredegar (Con)
My Lords, the amendment from my noble friend Lord Attlee would seek to introduce a new sentence of detention for training at Her Majesty’s pleasure. It is aimed at offenders who are at least 18 and under 27. The key principle is that release would be gradual and dependent on the offender reaching the required performance levels in conduct, education and training. It would be served in training sites in remote rural areas.
I thank my noble friend sincerely for presenting his genuinely interesting idea—I was going to say “novel”, but we have all watched “Yes Minister”. He has done what he said others have not by thinking positively and constructively about what we can do in the future, rather than just criticising what we do now. I think that we all share his desire to reduce the reoffending rate for young adults. Training and education can enable people to turn their lives around and stop reoffending. I reassure my noble friend and the Committee that the Government are already taking action that addresses those issues.
My noble friend is right to be concerned that offenders leave prison illiterate and innumerate and is right to say that that significantly increases the prospects that they will reoffend. We all share those concerns. I can reassure the Committee that many offenders already achieve accredited qualifications in the fundamental basic subjects of English and maths while in prison. We recently published data that shows that, between April 2019 and March 2020, over 30,000 prisoners started English and maths courses and over half of this number completed the courses and received accreditations. Over and above that, many more will also have undertaken vocational training. However, we are not sitting on our laurels. We recognise that there is more to do. We welcome external scrutiny by the Education Select Committee, which has launched an inquiry into prison education, and Ofsted, which recently announced that it will be conducting a review of reading in prisons.
On employment, we want to make sure that the prison education and skills offer for prisoners is aligned with what employers want and need. We know that there is a correlation between getting a job when you come out of prison and not reoffending. We want to prepare prisoners for employment and the Deputy Prime Minister has made that a clear priority. We want to have partnerships with more businesses and build on the work that we already do with companies such as Halfords, Timpson and Willmott Dixon. We are also making sure that the Civil Service plays its part. In the beating crime plan, we have committed to recruiting 1,000 prison leavers into the Civil Service by 2023.
Over and above that, we want to make sure that we have effective community supervision. Not only will that keep the public safer by providing early intervention, it will deflect offenders away from future offending as well. We set out in our sentencing White Paper an agenda of reform for not only punishing but, importantly, rehabilitating low-level offenders. We have set out a number of measures in this Bill as well: problem-solving courts, suspended sentence orders and extending the use of electronic monitoring. I believe that those measures will support offenders to change their lifestyles for good. In that, of course, I share the aims set out by the noble Lord, Lord Marks of Henley-on-Thames, and the noble and learned Lord, Lord Falconer of Thoroton.
Lord Ponsonby of Shulbrede (Lab)
My Lords, we support this amendment from the noble and learned Baroness, Lady Butler-Sloss. As she said, there is a cycle of offences for vulnerable people with drink and drug problems. In many ways it forms the vast majority of cases that we see in magistrates’ courts. I have come from Westminster Magistrates’ Court today and I can assure her that I dealt with as many drug and alcohol cases as I usually do. To use the word of the noble Baroness, Lady Brinton, the numbers are stuck where they are. Things are not getting better.
The noble Baroness, Lady Brinton, gave a very full and insightful summary of the statistics. I have been a long-standing member of the drugs and alcohol all-party group. This is an intractable problem that we see throughout the criminal justice system.
The initiative from the noble and learned Baroness, Lady Butler-Sloss, is to have a residential rehabilitation unit at the start, essentially, of any potential custodial sentence, and if people dropped out, they would then get a custodial sentence. It might work and it may well be worth a try. I will make one comment—I hate doing this, because one of the consequences of being a magistrate is that one becomes a sceptic, but nevertheless I will say that I think drug therapies work better when people do them voluntarily. I often say to people when I release them on bail on a drugs offence, whatever the offence, “If you can engage voluntarily in drug rehabilitation”—very often those are the same services that they are statutorily required to go to—“then any sentencing court when you come back to be sentenced will look on it more favourably.” Sometimes that message gets home.
Despite that note of scepticism, I still support the noble and learned Baroness’s amendment. It is another approach. There needs to be a multitude of approaches to address this scourge, and this particular approach is worth a try.
Lord Wolfson of Tredegar (Con)
My Lords, this probing amendment from the noble and learned Baroness, Lady Butler-Sloss, would require the courts to impose a sentence with the requirement to attend a residential rehabilitation unit where the offender has a drug or alcohol addiction, unless they had been convicted of murder, manslaughter, a terrorism offence, or a sexual offence. So, we are dealing here with the position at sentence. I will come to my noble friend Lord Attlee’s point about drugs in prison, although that is a slightly different, albeit related, point from that raised by the amendment.
Earl Attlee (Con)
I would like to quickly pick up on one thing the noble and learned Lord, Lord Hope, touched on, which was the position of a blind juror. I would have no problem at all with a blind juror. I expect that there are blind jurors and that the current legislation in Section 9B already provides for that without any difficulty.
Lord Wolfson of Tredegar (Con)
My Lords, this was an especially thoughtful and constructive debate. I agree with the words that the noble Lord, Lord Ponsonby of Shulbrede, used to describe the debate. His reference to the magistrate was interesting, but the problem with all analogies is that they are different. I am going to focus specifically on the jury issue because I recognise that a number of Members of the Committee have made particular points about jurors.
I will start with the point made by the noble and learned Lord, Lord Hope of Craighead, who referred us to the Equality Act; that is an important starting point for the debate, although it may not be the finishing point. We must ensure that the services of the courts are accessible to everyone, including those with disabilities. We must pay due regard to the need to eliminate discrimination and advance equality of opportunity wherever possible. That, in a nutshell, is why Clause 165 is part of the Bill. Having said that, and because I know that this will be a debate that is looked at by those outside this House as well as by those inside it, let me place on record what need not be said but I am going to say it anyway: that everybody in this Committee shares that aim. We heard a very personal example from the noble and learned Lord, Lord Judge, of Lady Judge’s work in this area. Again I say this for the avoidance of doubt where there should not be any: I am proceeding on the basis that all who have questioned or opposed our proposals do so with the very best of motives and certainly not for any other reason.
Trial by jury is a fundamental aspect of our criminal justice system, and serving as a juror is one of the most important civic duties that anyone can be asked to perform. I agree with my noble friend Lord Attlee that it is a duty and not a right, but the Government and I want to ensure that as many people as possibly can perform that duty. Reasonable adjustments can be made by our courts to enable most people with disabilities to complete jury service. This, importantly, includes deaf jurors who can lip-read. I invite the Committee to reflect very carefully on the position of the deaf juror who can lip-read and to consider it in respect of each of the objections that have been put. I will come to some of them to which this would not apply, but a number of the objections would potentially apply to a juror who is deaf but who can lip-read. Nobody else in the court is likely to know how good the lip-reading is, whether the lip-reader gets every nuance, or how lip-reading affects the dynamics either in the jury box or in the jury retirement room.
That is the first point we get from the deaf juror who lip-reads, but there is another point as well: it underlines the proposition that there is no bar in principle to a deaf person serving on a jury. This is about one issue only, which is the 13th—I will come back to the 14th—person in the jury retirement room. That is why we need the legislation, because at the moment it is 12 and no more; I put the jury bailiff to one side. The issue at the moment is that, unlike a lip-reader who, if the judge considers that they can effectively discharge their duties as a juror—which I will come back to—can serve on a jury, a juror who needs a British Sign Language interpreter is unable to get that assistance because entry to the deliberation room is limited to the jurors, and no one else may enter. The essential point that this clause focuses on is permitting the BSL interpreter to go in, thereby enabling that juror to fulfil their duty.
I recognise that there have been what I might call practical, and almost philosophical, principled objections and concerns raised about the proposal. I note that the Bar Council of England and Wales has expressed its support, subject, it is fair to say, to the right safeguards, which I believe we have in place. I reassure the Committee that we considered the safeguards very carefully in developing the legislation. We looked at research and current practice in the USA, New Zealand, the Republic of Ireland—which is planning to legislate for this form of interpretation—and Australia, where provision is already made for BSL interpreters or the equivalent in its jury systems.
I will first deal with the philosophical or principled objections. I understand the reservations that this might undermine the jury deliberation process, and I understand the argument, although I do not accept it, that interpreters could unduly influence or impact the dynamic of the discussions. There has been a lot of research, particularly in New South Wales, to explore whether deaf people can sufficiently access court proceedings and make informed decisions as jurors. The research suggests that deaf jurors are not hindered from speaking during deliberations and that other jurors seemingly have no issue with the presence of the interpreter or interacting with the deaf juror.
We have put safeguards in the Bill to help to address these issues. Offences relating to research and sharing research during the trial will apply as much to the interpreter as they do to the jurors. As has been pointed out, there is a new offence whereby an interpreter intentionally interferes in or influences the deliberations of the jury or proceedings before the court. I have said “interpreter”, but I accept, as the noble Lord, Lord Pannick, pointed out—I acknowledge my gratitude to him and others for sparing time to discuss this with me—that there will be two BSL interpreters present in the jury deliberation room, not only because they need to switch over as it is a very intensive process for the interpreter but because it has the benefit that they will be able to monitor each other and maintain a consistently high quality of interpretation. To take the point of the noble Lord, Lord Thomas of Gresford, I say that the nuances will be as much picked up by the sign language interpreters as we can anticipate—or not—that they will be picked up necessarily by a lip-reader.
I agree with the noble and learned Lord, Lord Judge, that the jury room is not just confidential but also private; those things are different, and it is both. There is no intention to allow the academics or the researchers in. There is certainly no intention to move from what I think in the judicial review context is called “the judge over your shoulder” to the Minister standing over the juror’s shoulder. We are certainly not going there.
The interpreters will be bound by a confidentiality agreement and be bound by law, and there is an offence to keep everybody honest. They will also be required to swear an oath or affirmation to that effect, alongside their existing interpreter’s oath or affirmation.
I turn to the practical concerns around the nature of evidence and whether a deaf juror will be able to interpret facial expressions, together with audio evidence, effectively. Again, I heard the example from the noble and learned Lord as to how something was said in a tone of complete resignation. The word used in the Act, and in this clause, is “effectively”. The judge would have to decide whether the juror could effectively discharge their role as a juror. This provision does not require judges to admit such jurors on to the jury; it simply removes the blanket ban that would otherwise be present. It means that jurors who need a BSL interpreter can be considered alongside other jurors for whom other reasonable adjustments might be required.
The ultimate decision will be for the trial judge, who will take into account the nature of the case and the nature of the evidence that is going to be heard. No doubt he or she would want to hear submissions from the parties, although they would not be bound by them. As I have said, none of this is new. Again, I ask the Committee to consider how the trial judge should deal with a juror who says, “Well, I lip-read.” The trial judge, again, would have to consider what the evidence in the case was going to be and whether they were going to be able to fulfil their role effectively. There is no difference in principle, and the test and approach of the judge would have to be the same.
I accept that there will be cases where a deaf person would not be able to serve on a jury. I expect that there will be cases where a lip-reading juror might not be able to serve on a jury—for example, if the evidence is audio only and there is nobody to look at; there is just a telephone call playing.
Lord Pannick (CB)
I ask this question out of ignorance. Can the Minister confirm what the noble Lord, Lord Thomas of Gresford, said, which is that a BSL interpreter does not interpret in the way that a foreign-language interpreter would, but rather attempts to summarise the gist or essence of what has been said?
Lord Wolfson of Tredegar (Con)
I was going to come to that point, but let me deal with it now. BSL is treated as a language. It has its own grammatical structure and syntax; it is recognised as a minority language in the UK. There is not a sign for every word, but words can be spelled out where a sign is not possible. The noble Lord and I have both had cases where we have had simultaneous foreign language interpretation. It is also the case that not every word in every language is easily translatable into another language. Certainly, we have looked at that point, and we do not think that that should be a bar to a deaf juror effectively participating in a jury. For these purposes, BSL is sufficient to enable the juror to participate effectively, but depending again on the nature of the case, that may be a factor in a particular case which the judge would want to take into account.
It is important to start from the proposition that everyone should be able to serve as a juror unless there are good reasons to believe that they would be unable to do so effectively. I underline that word “effectively” in the instant case. I come back to the fact that deaf jurors who can lip-read serve successfully, and we do not believe that there is a reason why there should be a blanket ban on jurors who need BSL interpreters to serve.
Picking up some other points, the noble and learned Lord, Lord Judge, asked about the obligation point and whether there would be a special dispensation. No, there would not be a special dispensation. Like any other juror, the deaf juror who needed a BSL interpreter would have to ask for permission to be excused. Of course, given that the judge would also be considering whether they could effectively participate, perhaps the anterior question would be their effective participation, and then the question would arise as to whether they could be excused. That would also apply, of course, to any other juror who was a lip-reader. One would imagine that a judge would be sympathetic to a lip-reading juror who might say to the judge, “I know that I can serve, but I am very concerned that I might miss something. My lip-reading is good, if not 100%, but I would rather not serve.” Ultimately, however, that would be up to the judge. There would not be a special dispensation.
Lord Wolfson of Tredegar
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Lord Wolfson of Tredegar at page 187, line 17.
Lord Wolfson of Tredegar (Con)
My Lords, these amendments in my name make two straightforward revisions which will allow these provisions to operate more effectively and support the principle of open justice across our courts and tribunals. Let me divide them into two groups.
Amendments 243, 244, 245, 248 to 261 inclusive and 325 expand the scope of Clauses 167 and 168 so they apply to all of our courts, tribunals and all bodies that exercise the judicial power of the state, with the exception of the Supreme Court, for which there has already been separate provision, and devolved courts and tribunals, for obvious reasons. This is an important amendment. It ensures that all jurisdictions may use these powers to provide transmissions of proceedings to remote observers in order to uphold the principle of open justice, subject, of course, to further regulation, guidance and judicial discretion.
Digital technologies have become mainstream, even in our smaller and what might be called more obscure jurisdictions. It is now evident that these powers should not be limited to HMCTS courts and tribunals but would be best made effective in all courts and tribunals. Importantly, that also ensures that the offence of making unauthorised recordings or transmissions of proceedings is applied universally across our entire justice system and not just in specific jurisdictions. This will shorten the length of the Bill by around six pages by removing the need for a distinct schedule for tribunals. I was going to add, “making this legislation simpler”, but that might test the patience of the Committee.
Ensuring that our courts and tribunals are as open and transparent as they can be is an ongoing task. The president of the Family Division, Sir Andrew McFarlane, recently published his review of transparency in the family courts. With respect to the president, it is right to say that that was a phenomenal piece of work, which has been well received. The remote observer clauses in this Bill are in harmony with his recommendations, as the Bill allows transparency by permitting journalists to observe family hearings remotely if they cannot attend in person.
The second part of this group of amendments, Amendments 246, 247, 262, 324, and 329, provide technical amendments so that the secondary legislation to enable these powers may be introduced on time. Let me explain what I mean by that. The remote observation provisions in the Bill are intended to replace the temporary and less extensive powers in the Coronavirus Act. They have been vital in allowing our courts to administer justice effectively and transparently during the Covid-19 pandemic.
We want to make sure that there is no gap in the legislative cover. It has therefore become necessary to ensure that these new powers can be enabled in secondary legislation before the date that the existing legislation expires. With this Bill now not expected to receive Royal Assent until only shortly before that date, these amendments take the necessary step of allowing the enabling secondary legislation for these powers to be introduced by the made affirmative procedure. These amendments therefore provide that legislation is continually in place to uphold open justice in remote hearings.
As this morning, I am aware that the group contains amendments from other noble Lords, so I will pause there to allow them to introduce their amendments. I beg to move.
Lord Pannick (CB)
I shall speak to Amendment 259B in my name and those of the noble Lord, Lord Marks, and the noble and learned lord, Lord Judge.
Clause 169(2) would allow a jury to be in a different physical location from the judge, so long as all 12 members of the jury are in the same place as between themselves. I am very concerned about this proposed power. In order to ensure the effective management of a criminal trial, a judge needs to be in the same room as a jury. The judge needs to be able to communicate effectively with the members of the jury. The judge needs carefully to watch the jury to see that they are focused and ensure that their needs are addressed. The judge needs carefully to watch the relationships between the 12 members of the jury. The jury needs to be able to communicate speedily and easily with the judge if it has any particular issue that it wants to raise. Members of the jury need to be able to study the witnesses giving evidence—what they say, what they do not say, and their body language and facial expressions while doing so. All this is so much more difficult through a computer screen, as we have all discovered, whether through court proceedings or parliamentary proceedings, during the pandemic.
I have had very helpful discussions with the Minister about this matter, and I am very grateful to him and thank him for those discussions and the time that he has devoted to them. I understand from him that the Government have no plan to encourage the use of remote juries. Instead, as I understand it, the Government believe that this would be a useful power essentially for three reasons: we may be afflicted by another pandemic; there may well be advances in technology; and, in any event, this power may be useful today if a judge and lawyers, for example, go on a site visit and one or more members of the jury is physically disabled, in which case the site visit can be watched by the whole jury online. That is the example that the Minister gave me.
I have to say that I find these justifications unpersuasive. I am always suspicious of broad powers being taken in legislation “just in case”. I certainly do not doubt the Minister’s good faith, but his assurances as to what is intended to be done under this proposed power do not bind—cannot bind—his successors in office to what he has done; they may have very different proposals or intentions as to the use of these powers. With great respect, the site visit example is, I think, very far-fetched. I am not aware of any such problem in any case in recent years, if ever.
In any event, if Ministers think that provision should be made for such a limited, specific use of remote hearings, with juries in a different place to the judge and the defendant, let it be made clear in the drafting of the clause that a remote hearing cannot take place with the jury in splendid isolation from the judge, the witnesses and the defendant in relation to the hearing of oral evidence, the submissions of counsel or the summing-up by the judge.
Although they have not yet been spoken to, I express my support for Amendments 259A and 259B, both of which concern aspects of the proposed power to be conferred on the court to require a person, including a defendant, to take part in proceedings by audio or video link. I can well understand that this may be a useful power for a preliminary hearing, but not for a substantive trial, unless the defendant consents to that. I am very unhappy about this in relation to young persons.
There are real issues as to whether a defendant would have effective access to a hearing, were his or her presence to be remote, and real concerns as to whether they could effectively communicate with their legal representatives. The Ministry of Justice may be hoping to save some money if it does not need to transport defendants from prison to court, but I am doubtful that it will save much money because it will need to invest in very high-quality computer systems. In any event, I fear the price will be a reduction in the quality of justice, and that price is too high.
Lord Wolfson of Tredegar (Con)
My Lords, I am grateful again to the Committee for a very interesting and wide-ranging debate. I thank my noble friend Lord Deben for the most back-handed compliment I have ever received and assure him that, when it comes to justice, I absolutely subscribe to the proposition that justice must be not only done but seen to be done. That reminds me to underline what Clauses 167 and 168 are about: they are about justice being seen to be done. These clauses do not mandate remote hearings; that is for a judge to decide. What they do is permit remote observation of those hearings, which underpins open justice.
When we look at issues such as this, we need to bear in mind that the days when the local newspaper would send people to sit at the back of the Crown Court or magistrates’ court are long gone. In the real world, you will have greater transparency if you have a live feed to journalists from the courtroom than if you say, “You’ve got to come along and take a note”. They simply do not any more, and I am concerned with making sure that we actually have open justice and that it is not just something we talk about.
Amendments 245A and 245B seek to prohibit those transmissions being made to remote observers in all cases where a child is among the parties. Amendment 259A similarly seeks to remove children from the application of Clause 169, which is about video and audio links in criminal proceedings. It would prevent the court, as a blanket ban, from making a direction to enable any participant in a hearing to attend by live link where a child is party to proceedings.
I absolutely agree with the intention of safeguarding children in our courts. We have debated that point in a number of areas of this and other Bills, but I suggest that these amendments are both ineffective and unnecessary. They are unnecessary because we already have in place sufficient tried and tested legislation and guidance to safeguard the privacy of children in these proceedings. Section 47(2) of the Children and Young Persons Act 1933 prevents anyone being present at a youth court hearing except members of the court, parties and participants, accredited media representatives or specifically authorised persons.
In other courts, procedure rules provide that it is legitimate to hold a hearing in private
“to protect the interests of any child or protected party”.
Courts have a statutory duty to have regard to the welfare of children. Judges, magistrates and tribunal members retain judicial discretion over whether a case is to be heard in private, with full consideration of their duty to protect minors or other vulnerable parties, where necessary. The ineffective or counterproductive point is that there may be cases where it is beneficial for a child, whether as a witness or a defendant, to participate by live link. If one is focusing on cases where children can be affected, one also has to bear in mind that there are lots of cases which affect children where a child is neither a party, nor a witness, nor physically involved at all.
Clause 169, as drafted, gives courts the flexibility to make decisions to direct remote participation where it is considered in the best interests of child participants to do so. I draw the Committee’s attention to the word “may” in the first line of subsection (1) in new Section 51. It is vitally important that we continue to protect children. That is why we have built these safeguards into our provisions.
Amendment 259B, which I think the noble Lord, Lord Pannick, spoke to first, seeks to exclude juries from the provisions in Clause 169 that enable a jury assembled together to participate in a trial through a live video link, where appropriate and deemed to be in the interests of justice. The Committee is entitled to a clear statement from the Dispatch Box and I will make one: there is absolutely no intention for this to become a regular feature of trials, with the jury sitting in one room and the judge and the witnesses in another room. As the noble and learned Lord, Lord Hope of Craighead, reminded us, Scotland did put that provision in during the pandemic—I think cinemas were used, so that everything was on a big screen and the audio was very good. That was done in response to the pandemic, and this measure is a future-proofing measure.
I hear what my noble friend Lord Deben says about that and about civil servants tapping Ministers on the shoulder, but, since the pandemic, we have witnessed big changes in how we run our jury system. We have seen —and here I pay my respects again to judges and all others involved in the justice system, who have worked extremely hard to do this—suitable procedures put in place. But we have also seen how legislation tied our hands during an emergency and impeded our ability to progress quickly and make full use of the technological options open to us. We do not want that to happen again. Clause 169 is designed to provide courts with the flexibility to keep pace with new technology as it develops.
As the noble Lord, Lord Pannick, said, that is the second reason for this clause. Technology is developing in ways that we could not have imagined a few years ago, and we have no idea where it will take us in the future. We want to be sure that we have a statutory basis to take advantage of technology as it develops, so that we can provide a justice system that is fit for the century that we live in and for the way that people live their lives. Those are the two main justifications for Clause 169.
I gave the noble Lord the example of a site visit. Again, I make clear that this is not the main justification for it, but it is important if one has a jury with a disabled person on it. The idea is shocking that, in 2021 a disabled person could be told that they cannot sit on a jury because, at some point during the three-week trial, it will look at the locus in quo, which is a room at the top of a winding staircase, and they cannot climb the stairs. The whole thing could be done very effectively via video, and so that is not a reason to stop them serving on a jury.
Lord Pannick (CB)
I am grateful to the Minister. Can he say whether there has ever been such a case?
While I am on my feet, I have another question. The Minister mentioned that technology may develop. I think the concern from those of us who have doubts about this proposal is not advancing technology but human communication. However good the technology becomes, there is still a vital distinction between watching proceedings on a screen and being in the same room as other people. I suggest to the Minister—this is certainly my experience and, I think, the experience of most lawyers and judges—that, although the courts have worked wonders during the pandemic, they have recognised the inferiority of any system that is within our contemplation by means of technology compared with being the same room. The ability to communicate and have an interchange with other people is manifestly weakened by having to do it over a screen.
Lord Wolfson of Tredegar (Con)
Absolutely. I do not disagree that face to face is better; no doubt that is what we all feel in this Committee—that it operates much better when we are in the same room than it did when it was all on screens. I absolutely accept that. Let me give an example. Before I became a Minister, I did a three-week trial entirely on screen, with witnesses around the world. After about a day, you forget, and you get used to the new system.
I am not saying that we want this clause here because screens are better; we want this clause in the Bill because screens may be necessary if we have another pandemic and because we do not know where technology is going to go. I do not want to get too techy about it, but there is a very real difference between watching a screen in the sense of a computer monitor and some of the things that I have seen in banks, where there is a big screen down the middle of a table and six or seven of you sit in a row and look at it, while the people you are talking to have the same thing in their office. After about half an hour, you really feel that they are on the opposite side of the table to you. Again, I am not suggesting that that is suitable for courts, but it is an example of how technology can, and will, develop. We want to future-proof it, as I have said.
Amendment 259BA would require anyone taking part in any sort of criminal hearing via live link to submit to a prior assessment of their physical and mental health before the court could consider whether it is appropriate for them to take part in criminal proceedings over a live link. I share the concern of the noble Lord that we must ensure that audio and video links are used appropriately. Again, we have built safeguards into Clause 169, setting out procedures and guidance that courts must follow. The court must decide whether it is in the interests of justice; that includes taking the views of the person who would attend by live link on whether they can participate effectively in the proceedings. The clause also requires that the parties have an opportunity to make representations to the judge.
I also point out that, although the intention behind the amendment is understandable, perhaps even laudable, in practice, it could prevent or deter some people from using a facility that could help them to participate in hearings with as little distress, inconvenience and delay as possible. I therefore urge noble Lords not to press their amendments.
Lord Wolfson of Tredegar
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Lord Wolfson of Tredegar at page 187, line 17.
Lord Wolfson of Tredegar
Member’s explanatory statement
This amendment expands new section 85A of the Courts Act 2003 so as to cover all “courts” within the meaning of the Contempt of Court Act 1981 (which include tribunals and other judicial bodies).
Lord Wolfson of Tredegar
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Lord Wolfson of Tredegar at page 188, line 25.
Lord Wolfson of Tredegar
“(10A) This section does not apply to proceedings in the Supreme Court.(10B) This section does not apply to court proceedings if provision regulating the procedure to be followed in those proceedings could be made by—(a) an Act of the Scottish Parliament,(b) an Act of Senedd Cymru (including one passed with the consent of a Minister of the Crown within the meaning of section 158(1) of the Government of Wales Act 2006), or(c) an Act of the Northern Ireland Assembly passed without the consent of the Secretary of State.” Member’s explanatory statement
This amendment provides that Supreme Court proceedings and court or tribunal proceedings within devolved competence do not fall within the expanded scope of new section 85B of the Courts Act 2003 (as brought about by the amendments in the name of Lord Wolfson of Tredegar at page 190, lines 27 and 28).
Lord Wolfson of Tredegar
Member’s explanatory statement
This amendment (together with the amendment in the name of Lord Wolfson of Tredegar at page 188, line 28) removes provision that is unnecessary as a result of the amendment in the name of Lord Wolfson of Tredegar at page 187, line 17.
Lord Wolfson of Tredegar
“Expedited procedure for initial regulations about remote observation of proceedings
(1) This section applies in relation to the first regulations made under section 85A(8) of the Courts Act 2003 (as inserted by section 167(1)).(2) The regulations may be made without a draft of the instrument containing them having been laid before and approved by a resolution of each House of Parliament (notwithstanding section 108(3) of the Courts Act 2003).(3) If regulations are made in reliance on subsection (2), the statutory instrument containing them must be laid before Parliament after being made.(4) Regulations contained in a statutory instrument laid before Parliament under subsection (3) cease to have effect at the end of the period of 28 days beginning with the day on which the instrument is made unless, during that period, the instrument is approved by a resolution of each House of Parliament.(5) In calculating the period of 28 days, no account is to be taken of any whole days that fall within a period during which—(a) Parliament is dissolved or prorogued, or(b) either House of Parliament is adjourned for more than four days.(6) If regulations cease to have effect as a result of subsection (4), that does not—(a) affect the validity of anything previously done under or by virtue of the regulations, or(b) prevent the making of new regulations.”Member’s explanatory statement
This enables the first regulations made for the purposes of new section 85A of the Courts Act 2003 as inserted by Clause 167 (which, in particular, will specify types of court or tribunal proceedings in which remote observation directions will be available) to be made subject to the ‘made affirmative’ procedure rather than the normal affirmative procedure.
Baroness Jolly (LD)
I thank the noble Lord, Lord Coaker, for his clear outline of the problem at the beginning of the debate. That was really helpful. I support the amendments creating the offences for assaulting a retail worker.
I look at this problem from a completely different perspective. Apart from the four years I was at university, I have spent all my life in really rural settings, so I identify with the weekly trip to the supermarket. We have a village shop which doubles up as the post office, but I cannot walk there because the roads are too narrow so I have to drive. It is a different sort of world. I identify with this from when I was at university in Leeds too; the corner shops at the end of terraces were exactly the same sort of set-up as a rural shop. But they had their problems. CCTV has now appeared in these shops, which was never there before. There was a level of trust, which is slightly eroded when people move into the village and behave in a different way. This sounds like the 1950s, and sometimes it is.
Whether we are talking about cities or villages, there are many small shops still, and a lot of them have post offices which keep them open. We should not forget that, because they serve a lot of people: where I live, a lot of people do not have cars, and older people really prefer going to the small village shop and still collect their pension there. But a single-handed shop with limited security and often no cameras is a danger, and these shop workers are vulnerable to assault, even in areas where you think everybody knows everybody else’s business. Will the Minister tell us, when she sums up, what sort of recommendations or advice are given to such small shops by the local police? Is there any government guidance to ensure that their safety and that of their workers are protected?
I thank the ACS for its really helpful background briefing. The two amendments are really interesting: one in the name of the noble Lord, Lord Coaker, is about the offence of assaulting a retail worker, and the other, in the name of the noble Baroness, Lady Neville-Rolfe, is much the same. Something should come back: whether it comes back from the Government or from amendments tabled by Members, we really need to put a marker down before the Bill finishes on the issue of assaulting shopworkers. It might be quite sensible if those who have added their names to Amendments 263 and 264 could sit down together to craft an amendment that would fit with all the points that were made in this short but really quite informative and well-informed debate, and then bring something back for Report.
Baroness Williams of Trafford (Con)
My Lords, I am very grateful to the noble Lord, Lord Coaker, and my noble friend Lady Neville-Rolfe for tabling their amendments, and for the opportunity that I have had to discuss their amendments with them before today. Both have spoken forcefully on behalf of retail workers, and noble Lords will have witnessed the strength of their convictions and the deep basis of knowledge from which they speak. I cannot let this opportunity go by without paying tribute to the noble Lord, Lord Kennedy of Southwark, who has—I could say harangued me for four years—shown such tenacity on this matter that he deserves a mention.
I start by echoing the comments made in the House of Commons by the then Minister for Safeguarding, in showing my support and respect for all those working in the retail sector. As my noble friend Lady Stowell of Beeston said, they have shown such tireless dedication as public servants, really, providing essential services to the public throughout the pandemic. I totally identify with the comments of the noble Lord, Lord Coaker, about going to the shops being the highlight of the day during the pandemic. It became a daily ritual for our household, certainly.
It is essential that we all feel safe at work, which is why assaults on any worker providing a service to the public is clearly unacceptable. It is really important that where such assaults or abuse occur, the perpetrators are brought to justice. In the Commons, Minister Atkins committed to actively consider this issue and that remains the Government’s position, but as part of that process of consideration I very much wanted to hear and then reflect on the debate today. I welcome the fact that those noble Lords who have contributed today spoke with such clarity and strength of feeling and gave us very good direction.
I want to say a bit more about the current position and the factors that the Government are weighing up as we determine how best to proceed in this area. The noble Lord, Lord Beith, asked about the gap in the law. Obviously, a wide range of offences already exist covering assaults on any worker, including retail workers, and they include offences such as common assaults. The example that my noble friend Lady Neville-Rolfe gave could encompass grievous bodily harm or, indeed, actual bodily harm, harassment and other public order offences, all of which criminalise threatening or abusive behaviour intended to harass, alarm or distress a person.
Furthermore, the courts have a statutory duty to follow sentencing guidelines, which state that it is an aggravating factor for an offence to be committed against a person who works in the public sector or who is providing a service to the public. This means that any offence that occurs against a victim providing a service to the public, including those working in the retail sector, will be considered by the court as meriting an increased sentence. I have also heard the comments and concerns about the provisions in the Bill that seek to increase custodial sentences—including the point made by the noble Lord, Lord Beith, about sentence inflation—and it is crucial that we take into account the impact on our courts and prisons, as he said, when considering whether to increase sentences.
At Second Reading, the noble Lord, Lord Rosser, asked what meetings Ministers had held over the summer with businesses, trade unions and groups representing retailers to discuss this issue. The Home Office has undertaken extensive consultation on the subject of violence and abuse towards retail workers, and discussions on this subject go back several years, as I have previously stated. Similar amendments were tabled to previous Bills such as the Offensive Weapons Bill, which is why the Government committed to a call for evidence on the levels of violence and abuse faced by retail workers.
That response was published in July last year and it increased our understanding of the problems faced by retail workers. A programme of work has been under way through the National Retail Crime Steering Group, which the Minister for Crime and Policing co-chairs with the British Retail Consortium. The steering group brings together the Government, retailers, unions and trade associations, the Association of Police and Crime Commissioners and the police-led National Business Crime Centre to make sure that the response to retail crime is as robust as it can be, as well as ensuring that key crime drivers, including substance misuse, are comprehensively considered. I hope that goes to the point made by the noble Baroness, Lady Jolly. It has been and continues to be an important forum for discussions on the causes of violence and abuse in the retail sector and for working together to find solutions and provide support to retailers.
The matter of violence and abuse against retail workers has been the focus of the National Retail Crime Steering Group for the past 18 months. The Home Office is leading a programme of work designed as a direct response to the call for evidence and agreed by the steering group and wider retail sector. To date, six task and finish groups have been established to develop practical resources to support retailers and their employees.
Earlier this year, the Home Affairs Select Committee conducted an inquiry into violence and abuse towards retail workers. In response, retailers, unions and trade associations put forward evidence about their experiences of violence within the sector. The Select Committee recommended that the Government consult on the scope of a new offence, recognising the particular pressure on those in occupations where they are asked to enforce the law, and taking into account the provisions of the Protection of Workers (Retail and Age-restricted Goods and Services) (Scotland) Act 2021, which came into force in August.
As I have set out, the Government have engaged extensively with the retail sector and the police. In response to the points made by the noble Lords, Lord Beith and Lord Paddick, the police have recruited 11,000 of the targeted 20,000 increase to their number. The government response to the HASC inquiry makes clear the Government’s commitment to address this issue and to take into account the legislation in Scotland.
I assure noble Lords that the Government are continuing to consider whether changes, including legislative changes, are needed and will reflect carefully on the debate today. On the basis of that very firm undertaking that the Government are considering as a matter of urgency how best to balance those many issues, I hope the noble Lord will feel happy to withdraw his amendment.
Lord Coaker (Lab)
I thank the Minister for her response. I am an optimistic person by nature and I thought that there were grounds for optimism in the way in which the Minister talked about weighing up the options and looking at the various ways forward, including—and this was as a really important remark that noble Lords may have heard—“legislative change”. That is the key thing. A number of comments were made by various noble Lords. The Minister will have heard them. In the interests of time, I shall leave it there, but we will look forward to the Government coming forward with something on Report, or us tabling our own amendments. In thanking noble Lords for their support, I beg leave to withdraw the amendment.
Lord Marks of Henley-on-Thames (LD)
My Lords, we welcome this amendment and the opportunity to discuss restorative justice. We are very grateful to the noble Lord, Lord Coaker, for relaying the views of the noble Baroness, Lady Meacher, who has a long-held commitment to restorative justice that is well known.
We fully support the amendment and are concerned that the Government should take in how important restorative justice is felt to be in this House. This debate has given us the opportunity to make that clear. We were privileged to have the explanation of the reasons for restorative justice and the comprehensive account of its birth and development from my noble friend Lady Harris, who set out, from her experience of police work and as a magistrate, how restorative justice has developed and its value.
The amendment is important because we—some of us, anyway—have concerns that, although there is this commitment around the House, there may be a danger of progress stalling. That is why it is so important that there should be a call for the preparation of an action plan, that it should be laid before Parliament and that there should be a report on the progress on restorative justice.
Members of the House will have been interested to hear the account of the noble Viscount, Lord Brookeborough, on how restorative justice developed in Northern Ireland from a state of great hostility, where real potential enemies were confronting each other, and how restorative justice became reflective of community justice as perpetrators and victims came into contact. He made the point that this was very much not a soft option but was victim based, and that analysis from the circumstances in Northern Ireland was, I felt, reflected by the analysis of my noble friend Lord Paddick, who gave the history of restorative justice in London and dealt with the achievement of victim satisfaction and, interestingly, a greater feeling of safety on the part of victims. He also talked of the benefit for perpetrators in the contact between the victim and the perpetrator; that was a point made by the noble Lord, Lord Blunkett, who was one of the signatories to the amendment.
I will be very interested—we will be very interested—to hear the Government’s response, which we hope will give us an indication that the Government take restorative justice as seriously as the speakers this evening do and that their commitment to it will be increasing and continuing.
Lord Wolfson of Tredegar (Con)
My Lords, I thank the noble Lord, Lord Coaker, for proposing the amendment in the name of the noble Baroness, Lady Meacher, who is unable to be with us this evening. She spoke eloquently at Second Reading about the benefits of restorative justice, and I am very sorry that she is not in her place this evening. I am sure that I speak for the whole Committee in wishing her well. She did, however, have a meeting with me on this topic, and I record my thanks to her for her time and for the discussion. She expressed concern that the Bill did not include provision for restorative justice. The amendment is trying to fill that perceived gap by requiring the Home Secretary and the Justice Secretary to publish an action plan for restorative justice every three years.
I am grateful to the noble Baroness, Lady Harris of Richmond, for her support for restorative justice. I agree that, in the right circumstances, it can have far-reaching benefits. I have heard and felt the mood of the Committee on this point, but the truth is that I did not really need any persuading as to the importance of restorative justice. It can bring those harmed by a crime and those responsible for that harm into communication, and it can help everyone affected by the crime to play a part in repairing the harm; that is commendable. The Government support restorative justice where it can be suitably used.
However, with respect to the noble Baroness, Lady Bennett of Manor Castle, I would draw a distinction between civil cases and criminal cases. We have to remember that in a civil dispute—this is part of the answer to the road traffic point, but I will write to my noble friend as well—there are two parties before the court. I can settle my case on whatever terms I want if the other person agrees. When it comes to crime, there is a public interest; we prosecute in the name of the public. We do not allow victims to determine always whether the offender serves a punishment or not. I am not saying that restorative justice is not applicable, but we have to remember that there is a different set of criteria and principled underpinnings to our civil justice system and our criminal justice system.
Lord Ponsonby of Shulbrede (Lab)
My Lords, my noble and learned friend Lord Falconer also added his name to this amendment. We clearly support the amendments. I pay tribute to my noble friend Lord Cashman and the noble Lord, Lord Lexden, who I understand campaigned for decades on this issue. I thought it was quite moving, if I may use that word, to hear the noble Lord, Lord Lexden, saying he earnestly hoped that he was coming towards the end of his campaign. I hope he is right and that the Minister may be able to give him some comfort in that respect. Everybody who has contributed to the debate thinks this is a thoroughly appropriate amendment and, even though it has been a very truncated debate, the passion and the sense of finality have come through, and I very much hope that the Minister will give a suitable response.
Baroness Williams of Trafford (Con)
My Lords, it is about three minutes to the witching hour and I am absolutely delighted to be able to respond on behalf of the Government to these amendments. I and the Government are committed to enabling those with historical convictions for decriminalised homosexual conduct to apply to have their convictions disregarded. To answer the noble Baroness, Lady Bennett of Manor Castle, in discussion with the noble Lord, Lord Cashman, Professor Paul Johnson and my noble friend Lord Lexden, we felt that this was the neatest way to do it, as opposed to any other way. We have been actively exploring whether further offences can be brought within the scope of the scheme, to enable more people, both civilians and ex-service personnel, to benefit from it.
I really want at this point to pay tribute to my noble friend Lord Lexden and to the noble Lord, Lord Cashman, who is my noble friend, and to Professor Paul Johnson at the University of York for his expertise on this issue. I am very grateful for the conversations we have had on these amendments and similar amendments to the Armed Forces Bill. I am also grateful to the noble Lords for reiterating their commitment during Committee to work with the Home Office and the MoD on the best way forward for achieving our joint desire to redress this historic injustice.
We accept that the current scheme may be too narrow, as it is essentially confined to convictions for the now-repealed offences of buggery and gross indecency between men, but, as noble Lords have indicated, other now-repealed offences were also used to unfairly target gay men and women simply because of their sexuality. In further righting these historic wrongs, we need to ensure that any disregards in respect of additional offences meet the established legal criteria to ensure that necessary safeguards are upheld—this is something we have agreed and that the noble Lord, Lord Cashman. has outlined tonight. The disregard scheme was deliberately and carefully designed in a way that ensures that the Home Office does not inadvertently disregard convictions or cautions for behaviours which are still illegal today or which involved other illegal behaviours, such as underage or non-consensual sex or sexual activity in a public toilet, which is still an offence under Section 71 of the Sexual Offences Act.