Monday 9th February 2026
(5 days, 6 hours ago)
Lords ChamberVictims and Courts Bill 2024-26 View all Victims and Courts Bill 2024-26 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 141-I(a) Amendments for Committee (Supplementary to the Marshalled List) - (6 Feb 2026)
Lord Keen of Elie
Member’s explanatory statement
This amendment probes the rationale behind restricting the power to order offenders to attend a sentencing hearing to only the Crown Courts.
Lord Keen of Elie (Con)
My Lords, this group of amendments in my name relates to Clauses 1 and 2. I start by observing that we on these Benches are broadly supportive of most of the provisions in the Bill. Many of the amendments tabled in my name, save one or two exceptions, have the aim of strengthening the Bill’s existing provisions rather than removing them. The use of reasonable force to compel attendance at sentencing hearings was a measure first proposed by the previous Conservative Government in the Criminal Justice Bill, which fell at the Dissolution of Parliament. It is, therefore, a policy that we on these Benches strongly support.
As the Government have consistently said, victims and their families deserve to see justice done. They deserve to hear directly those remarks which explain the court’s reasons for the sentences that are being imposed, and they deserve the chance to face their offenders and have their own voices heard in open court. In that spirit, many of the amendments in my name probe details of Clauses 1 and 2, and question how they would operate in practice. These clauses set out the statutory powers for judges to order an offender to attend court for their sentencing hearing, by reasonable force if necessary. As we have heard previously, offenders who refuse to attend their sentencing hearing thereby insult their victims. Offenders should not be able to undermine the final moment of justice in such a way. The amendments in this group ask the important question of why the Government are not taking this opportunity to expand the applicability of Clauses 1 and 2, given their upcoming and substantial court reforms.
I understand that the application only to the Crown Court in these clauses is the same as the approach taken in our Criminal Justice Bill, but I point out a crucial difference between the positions of the last Government and this Government. When this clause was originally proposed, there were no plans to alter the sentencing powers of the magistrates’ courts. However, this Government are now proposing to increase magistrates’ sentencing powers to three years, thereby shifting a large number of cases away from the Crown Court towards magistrates. As such, magistrates will hear a much greater proportion of increasingly serious cases, which surely throws into question the application and scope of Clauses 1 and 2.
In fact, this is a different contextual background from not only that of the previous Government but that of this Government. The Bill was introduced in the other place before the Government announced their court reforms. So, as published, Clauses 1 and 2 would have permitted the compulsory attendance of an offender for sentences between one year and three years. Now, however, if the Bill is unamended, and the Government’s court reforms go ahead, a person convicted in a magistrates’ court for an offence that would have previously been heard only before a Crown Court will not be required to attend their sentencing hearing.
If it was previously the Government’s view that offenders facing between one and three years’ imprisonment should be subject to compulsory attendance at their sentencing hearing, why have they not made the necessary amendments to the Bill? Perhaps that is because they have changed their mind, in which case the Minister should be clear about that. If it is the Government’s position that the scope of offenders who should be compelled to attend their sentencing hearing should remain the same as when the Bill was introduced, they must surely accept these amendments. The question that then arises is: why stop at the Crown Court, when extending these powers to other courts could make a meaningful and positive difference to the victims of other crimes?
We should not dismiss the experience of victims of, for example, burglary. Requiring an offender to attend their sentencing hearing may give those victims just as much closure. Conversely, an offender refusing to attend could cause just as much insult, if this series of amendments is not accepted. If anything, by reserving these powers for the Crown Court only, we risk playing down the significance of other crimes by signalling that offenders do not have to face their victims. Extending these powers to other courts would not only provide greater consistency but show that no crime is more permissible than another, or that one victim’s experience is not more or less important than another’s. If the rationale is one of practicality or resource, the Government should make that case. If, however, there is no compelling reason, whether it be legal, procedural or financial, the Bill presents an ideal opportunity to address a gap, rather than requiring further primary legislation later on down the line after court reform has been implemented.
If the Government’s intention is to strengthen victims’ confidence in the criminal justice system, surely consistency must be at the heart of that ambition. Victims do not experience crime through the lens of jurisdictional boundaries. They experience the indignity of being wronged and they rightly expect the justice system to deal with offenders in a manner that recognises that harm each time, regardless of which court is sentencing. It is for these reasons that I believe the Government should revisit the decision to confine these powers solely to the Crown Court; otherwise, the Bill risks creating a two-tier system, where the victims of some crimes are afforded the closure of seeing justice done in person, while others are denied it for reasons that are administrative rather than principled.
I would be grateful if the Minister could also clarify what consideration has been given to victims’ expectations and their confidence in the justice process when limiting these powers to the Crown Court. I hope that the Minister will reflect on these points and consider whether there is scope for a more ambitious and comprehensive approach. I look forward to her response and to working to strengthen this legislation for the benefit of all victims. I beg to move.
Lord Thomas of Cwmgiedd (CB)
My Lords, I will make a brief observation about the amendment. The exercise of this power by a judge is never going to be easy, and we should be very cautious about the way this is introduced. Let us first see how it works with people who have the experience of handling what, in the circumstances, will be a very difficult position before we move on to doing it in all courts. This power must be confined to those cases where it is really necessary, because I think that a number of us who have had experience of this would be very worried indeed if this power came to be routinely deployed.
Baroness Hamwee (LD)
My Lords, I appreciate that the noble and learned Lord is probing at this stage and I am with him in wanting to see procedures from the point of view of victims, but I simply do not know whether magistrates have the same powers as Crown Court judges. When we debated this issue before, we were told about the powers that judges have now, without the need for an extension.
The noble and learned Lord, Lord Thomas, came quite close to my question. Magistrates come from a very different background. Do they currently have the same powers as the judges who will be covered by this legislation, quite apart from the powers that are given by the Bill, in dealing with recalcitrant—if that is the right word—defendants?
Lord Marks of Henley-on-Thames (LD)
My Lords, I am very grateful to the noble and learned Lord, Lord Keen, for the way in which he has explained these amendments. I am also extremely grateful to the noble and learned Lord, Lord Thomas, for injecting a note of caution and to my noble friend Lady Hamwee for injecting a note of questioning about the proposed amendments.
In their explanatory statement, the noble and learned Lord, Lord Keen, and the noble Lord, Lord Sandhurst, state that the amendments in this group probe
“the rationale behind restricting the power to order offenders to attend a sentencing hearing to only the Crown Courts”.
The noble and learned Lord explained why he suggests that there is no difference, for the purpose of this power, between the Crown Courts and the magistrates’ courts.
I should make it clear that we on these Benches start from the position that defendants should be obliged to attend court for their sentencing hearings. But the fact that they are obliged to attend court does not lead to the conclusion that the courts ought to have the power to get them to court however much they wish to resist.
It is, of course, important from the victims’ point of view—this is a point that the noble and learned Lord, Lord Keen, made—that the defendants who have committed offences against them are in court for the occasion when they are brought to justice. It is appropriate, therefore, that in the right cases, the court should have the power to order them to do so.
The noble and learned Lord, Lord Thomas, pointed out what a serious power this is. It is particularly a serious power, as I will come to say, because the use of force is sanctioned to get defendants to court. We have heard tell, in the press and in the House of Commons, from some of the wilder speeches—if I may put it that way—of, in effect, the court having the power to order that offenders be brought to court by considerable force and in chains. I am quite clear that that is not the way the Bill puts it; it puts it in terms of the use of force being reasonable, proportionate and appropriate. Nevertheless, it is a very serious power.
It is also important from the offenders’ point of view that they should come to court, first, to hear what the court says about their offences as well as what their counsel and the prosecution say about their offences. It is also important because their attending court and listening, hopefully with some care, to what goes on at their sentencing hearing may be taken as a sign of their understanding of the import of the hearing. If an order is made, the breach of such an order to attend court for a sentencing hearing is a sign of a lack of remorse on the part of the defendant. A lack of remorse will usually involve a court treating a defendant more severely than it might treat a defendant who does show remorse for the offences that they have committed and an understanding of the impact of those offences on the victims.
The scheme of this Bill is to bring in a very strong regime of compulsion with a specific incorporation of provisions about contempt of court and significantly, as I adumbrated, about the right to use force to bring defendants to court who are unwilling and refuse to attend their sentencing hearings. The conditions for the new regime, as set out in the Bill, are that the defendant has been convicted and is in custody awaiting sentencing by the Crown Court. That brings into play the kind of reservation that the noble and learned Lord spoke about. This new regime is designed to deal with serious offences. A third condition is that the offender has refused or is likely to refuse to attend the sentencing hearing.
It follows that the code for punishment for contempt should be confined to adult offenders. The amendments seek to make this procedure and all its features applicable to a wider group of offenders, and to magistrates’ courts as well as Crown Courts. I ask the Minister and the noble and learned Lord when they close how far a change to include magistrates’ courts will help victims. One can see how it is justified and might help victims in serious cases, but I question how far the use of force will ever be in the public interest. One must question the purpose of the use of force. It could be twofold. It could be to force offenders to face up to their offences and help them to avoid reoffending. It could be to help the victims by letting them see that those who have committed offences against them are being brought to justice. There may be force in that.
However, there is also a risk, which may be important, of forced attendance becoming a means for defendants to get publicity for themselves, their offences and their resistance to justice: to portray themselves as public martyrs and, in some cases, to make political gestures that could be thoroughly undesirable. If these orders became the norm, those dangers would be real. If it is to have a positive effect, this power is likely to be much more effective for serious cases in the Crown Court than it is for cases in the magistrates’ court. Of course we take the point that the scope of hearings in magistrates’ courts has been increased over what it was before the distinction was changed. Nevertheless, I will be very interested to hear the Minister’s response on the distinction. Our position at the moment is that the distinction is plainly justified.
The Parliamentary Under-Secretary of State, Ministry of Justice (Baroness Levitt) (Lab)
My Lords, this group of amendments in the names of the noble and learned Lord, Lord Keen of Elie, and the noble Lord, Lord Sandhurst, explores the reasons for limiting this power to the Crown Court.
Before I begin, I am sure that the whole Committee will wish to join me in paying tribute to the families of Jan Mustafa, Henriett Szucs, Sabina Nessa, Zara Aleena, and Olivia Pratt-Korbel—whose mother and aunt sit below the Bar today. Their tireless campaigning has brought about this change. They have persuaded the Government that when a cowardly offender refuses to attend court, it causes anger and upset, which can feel like a final insult to victims and their families, who have sat through the trial waiting for the moment when they can tell the world—and, importantly, the offender—about the impact their crimes have had. Many of them want the opportunity to look the offender in the eye as he or she hears about the effects of what they have done.
Offenders are expected to attend court for sentence, and the overwhelming majority do so. Because magistrates’ courts hear less serious cases, offenders are more likely to be on bail, and where an offender is on bail, the courts have powers to compel attendance by issuing a warrant. When a warrant is issued, the defendant is brought before the court in custody for the warrant to be executed, and the judge can add an additional sentence for the offence of failing to surrender to bail, which will appear on their record in future.
However, in the Crown Court, which deals only with the top level of serious crime, offenders are much more often remanded in custody, and so court powers to get them physically into court are more restricted. That is why the Government have acted by bringing forward this legislation which gives three powers that can be used in relation to recalcitrant—that is the right word, as used by the noble Baroness, Lady Hamwee—offenders: first, authorising the use of reasonable force, except in the case of children, because we are a civilised country, and this Government do not believe in using force on children; secondly, for offenders who still refuse to attend, or for those who are disruptive once they are there, the power to add an additional sentence; and, thirdly, the power to impose the same kinds of prison sanctions as a prison governor can impose.
However, getting an unwilling and often disruptive offender to court is by no means straightforward, and it inevitably causes a delay to the sentencing hearing for the following reasons. At the outset, the judge will have to hear submissions from prosecution and defence counsel, as well as possibly from the prison and escort staff, as to whether the offender has a reasonable excuse for non-attendance and, if not, whether to exercise these new statutory powers. Then the judge will need to give a ruling, giving reasons as to why, in the circumstances of that particular case, it would be necessary, reasonable and proportionate to use reasonable force to get the offender to court.
Then the prison and transport staff will have to go and get the prisoner from the place, whether it is a prison or a court cell, which they are refusing to leave. The prison and transport staff will then have to use their judgment as to how best to execute the judge’s ruling, including what degree of force to use. Finally, if the offender is forced into court and is then disruptive, this is likely to cause more delay while the judge decides what to do next.
There is probably one thing we can all agree on: the criminal courts do not need any additional delays. Judges will need to weigh up carefully whether and when to use their new powers. The noble Baroness, Lady Hamwee, raised the question of the inherent powers that courts already have. Both the Crown Court and magistrates’ courts have inherent powers to deal with a non-attendance as a contempt of court, but these are used sparingly because, as the noble and learned Lord, Lord Thomas, pointed out very powerfully, it is far from straightforward.
For these reasons, the Government’s view is that this new legislation is appropriately restricted to Crown Court sentencing. It represents a reasonable and proportionate response to the problem, because it is the Crown Court where these powers are needed. Operational arrangements are already in place for producing the most serious and violent offenders at the Crown Court, managing the risks that that involves and, where necessary, using proportionate force. So, for these reasons, we consider that expanding the power to magistrates’ courts might create legal and operational uncertainty and unnecessary delay to court proceedings. I therefore invite the noble and learned Lord to withdraw his amendment.
Lord Keen of Elie (Con)
My Lords, I thank noble Lords for their thoughtful contributions to the debate, and indeed the observations with regard to the timing of any extension of these powers.
I would observe, with respect to the submissions made by the noble Lord, Lord Marks, that if these provisions help victims in the Crown Court, it is not clear why they would not help victims in magistrates’ courts.
The Minister talked at length of the difficulty of implementation with regard to these provisions, but that would apply equally in the Crown Court and the magistrates’ courts. Indeed, the appearance of serious offenders in the magistrates’ courts will of course be an immediate development with the changes under the Sentencing Act, which extend the sentencing powers of magistrates to three years.
Lord Sandhurst
Member’s explanatory statement
This amendment probes the role of the victim in the exercise the power to order offenders to attend a sentencing hearing under clause 1.
Lord Sandhurst (Con)
My Lords, the amendments in this group, in my name and that of my noble and learned friend Lord Keen, seek to ensure that the Bill lives up to its purpose in the name of victims.
Clauses 1 and 2 set out how offenders can in future be compelled to attend their sentencing hearing. But, as currently drafted, they contain no mechanism to involve the victims directly in the process. This is contrary to the Bill’s purpose to make provision for an enhanced experience for victims within the criminal justice system. Indeed, it is unclear in what situation a judge would be minded to make such an order without the request of the prosecution and what the criteria for such a decision would be in that instance.
If, in the absence of a request by the prosecution, the court’s power to compel attendance is not automatic, I look to the Minister to say why that is the case. Further, I ask her to clarify whether published guidance will be provided to judges as to what factors should be considered when making an order, beyond the practical considerations of officer safety.
The amendments which we advance, on the other hand, would overcome some of our concerns. They would enable the victims to have a say and to request that the offender be ordered to attend. As the Minister set out at Second Reading, the reasoning behind this Bill’s provisions is to compel attendance in the first place and to provide an opportunity for victims to look the defendant in the eye and explain exactly how a crime has affected them. The sentencing remarks are often their last opportunity for this. Why, then, should victims not be given a say whereby they can expressly request that an offender is ordered to attend? This would both give the victim a greater voice and give the judge greater clarity on how to proceed.
The second two amendments in this group, Amendments 4 and 9, would also require the courts to consult the victims if the judge is minded not to make an order compelling an offender to attend sentencing. If a victim is deceased or incapacitated mentally or physically, our amendments would allow family members or another appropriate representative to be consulted in their place. Justice should not stop when the victim cannot speak for themselves. This would put victims at the centre of the process. It would ensure that such decisions are taken not behind closed doors but in consultation with those victims whom these decisions affect.
We cannot treat these issues as merely procedural. For a victim, a sentencing hearing can be a profoundly significant moment, and it is an opportunity for closure. I am sure that the last thing noble Lords would want is for a victim to feel disconnected, sidelined or unheard by the courts in the run-up to a hearing. This amendment would also give judges a chance to explain and justify their decisions. If the offender will not be in attendance or the judge will not exercise their powers to compel attendance, victims or their representatives deserve an explanation of why that is the case. This should happen both where a victim has made a request for an offender to be ordered to attend and where they have not. We do not consider this to be a heavy burden on the courts. It should instead be considered best practice. These steps would ensure that the judge’s decision-making process is consistently transparent. It would make our system more accessible and demonstrate to victims that they are a priority, not an afterthought, particularly at the point of sentencing.
This Bill was presented to Parliament as an opportunity to address these very concerns. Our amendments would fill real gaps in drafting. I am sure the Minister will want to reflect carefully on them. I look forward to hearing the contributions of other noble Lords to this debate. I beg to move.
Lord Thomas of Cwmgiedd (CB)
My Lords, I shall make two observations. The first relates to the remark made by the noble Lord, Lord Sandhurst, in relation to how judges will exercise these powers and whether guidance will be given. No doubt the Lady Chief Justice will consider whether to give guidance, or such guidance might be given by practice direction or be the subject of discussion at the Judicial College, but the handling of this is entirely for the judiciary. It is difficult enough, and it certainly would not be in any way appropriate for the Ministry of Justice to give guidance. It seems to me that the exercise of this judicial power must be for the judicial branch of the state and it alone—unless, of course, Parliament in its infinite wisdom decides that it wants to set down the criteria. I strongly urge Members not to do that.
The second relates to a more practical point, and that is the ability of the victim to intervene in the decision and to be able to make a request. It is sometimes forgotten that a transformation occurred during the 2000s and the next decade in the way in which the Crown Prosecution Service dealt with victims. There was a time when the victim was regarded as peripheral to the way in which the courts operated and to matters that had to be taken into account. That position changed remarkably and for the better. I think it is appreciated that the judicial power to have someone brought into court has to be exercised with the greatest degree of thought. If the Crown Prosecution Service were to request this to happen, I would be astounded if it had not consulted the victim. In my experience, that is what often happens in these difficult circumstances. There is a discussion as to the best way of proceeding and it is very important that this is approached in that sort of way.
If the victim was to be allowed to make the request directly, this raises the question as to how. Is this to be done in open court with the discussion of the various issues? Is it not best left to the wisdom of the Crown prosecutor and the judge’s ability to ask questions as to the victim’s views? It seems to me this is a much more efficacious way of dealing with the matter rather than bringing the victim in personally—because there is no suggestion of a victim’s advocate for this—to what will be, if this power is to be exercised, an occasion of great difficulty. The last thing anyone wants to happen is to provide secondary victimisation by an awful scene in court. I urge the Government to exercise very considerable caution in considering this amendment.
Lord Marks of Henley-on-Thames (LD)
My Lords, once again I am extremely grateful to the noble and learned Lord, Lord Thomas, for his note of caution about Amendment 3—and Amendment 8 in the case of service personnel—which would allow victims to request that an order be made. I completely agree with him that it is a matter for the judiciary to exercise its discretion as to whether orders are made. I am not entirely sure that the noble Lord, Lord Sandhurst, took into account quite how difficult it is going to be to make these orders. I suggest that the caution of the noble and learned Lord, Lord Thomas, about bringing the victim in as effectively a party to such an application is a point well made. But I accept that it is right that the victim’s voice should be heard. I also agree with the noble and learned Lord, Lord Thomas, that the victim’s voice in court now is heard in a way that it certainly was not decades and even years ago. But a formal position whereby the victim was entitled to make a request is probably undesirable, though it is quite clear that the victim’s voice should be heard and that guidance to and from the judiciary should reflect that.
Amendments 4 and 9 are effectively seeking a very serious conflict:
“If the court is minded not to make an order under subsection (2), the court has a duty to consult the victim, or, where the victim is deceased or is unable to be consulted … a family member or other appropriate representative”.
That would put the victim in a wholly invidious position of effectively making the victim compulsorily a party to the application for an order. That is likely to stoke up hostility between the victim and the offender, which we are trying to avoid or at least reduce, and even possibly between the victim and the court, which would be a thoroughly undesirable position. Far better, I suggest, to leave it to the judge to decide how the victim’s views should be sought and taken into account, without imposing any duty on the court to consult the victim at any stage. It would be much better for the Bill to remain silent on how the victim’s views should be sought, but the expectation will be that they will be sought, and I have no doubt that that is how the judiciary would approach this exercise.
Baroness Levitt (Lab)
My Lords, Amendments 3, 4, 8 and 9, once again in the names of the noble and learned Lord, Lord Keen of Elie, and the noble Lord, Lord Sandhurst, seek to give a victim or a bereaved family a defined role in the process of ordering someone to attend their sentencing hearing.
Victims have been at the forefront of this measure. It is precisely because an offender’s refusal to attend sentencing can compound the trauma for victims that we are giving judges an express power to order attendance, building on the judge’s existing common-law powers. Whether to order attendance must remain a judicial assessment of what is in the interests of justice. It will be made case by case, with the judge retaining the ultimate discretion having considered all the circumstances.
As I said when responding to the previous group, we anticipate that judges who are considering making an attendance order will hear submissions from both prosecution and defence. Prosecuting counsel will inevitably be expected to advance the views of the victim and the family, having sought them beforehand and having asked them; I can tell the Committee from my own experience that if they have not spoken to the victim or the victim’s family, the judge is likely to tell them to go away and do so—so it happens now. If there is no victim personal statement, the judge will, in my experience, inevitably say, “Why isn’t there one? Does the victim want to make one?” I can tell the Committee, again from my own experience, that the views of victims and their families are given great weight by the judge.
That said, we are anxious not to create unrealistic expectations in the minds of victims or their families that they would have the right to require the offender’s attendance at court. That could lead to some difficult experiences for victims and their families. What if, for example, the judge were to find that the offender had a reasonable excuse for non-attendance but the family of the victim disagreed? Plainly, the judge’s decision would have to prevail, but at what cost to the family if they had believed that they had the right to require attendance? We do not want to make sentencing hearings any more stressful or distressing for victims than they already are.
Judges must have the discretion to do what is right based on the facts in front of them and the submissions that they hear. There will be cases where it is not in the best interests of victims or families for the offender to be in court, including the occasions—thankfully rare—when the offender is likely to be disruptive or disrespectful and cause further distress.
To place a statutory duty on the court to consult a victim whenever an order is not made risks creating additional delay at the point of sentence. What, for example, if the victim’s family have chosen not to attend court, yet there is a mandatory statutory duty upon the judge to find out and consult them? As I have already said, the one thing that the Crown Courts do not need is any additional delay. In addition, such a statutory requirement risks placing an additional unnecessary emotional burden on victims and families.
The Bill preserves judicial discretion. We expect judges to take account of all relevant circumstances, including victims’ interests, and we are confident that they will do so because that is what they already do. I therefore invite the noble Lord to withdraw his amendment.
Lord Sandhurst (Con)
My Lords, I am grateful to noble Lords who contributed to this short but thoughtful debate, particularly the noble and learned Lord, Lord Thomas of Cwmgiedd. This debate has underlined how crucial these provisions are to the overall purpose of the Bill, why they warrant close attention and the balance that may have to be struck. We must, of course, get this right.
The Bill was brought forward with the express purpose of strengthening victims’ rights and improving their experience of the criminal justice system. But, as drafted, if we are not careful, victims will remain on the sidelines of a key decision-making process: whether an order should be made to compel an offender to attend their sentencing hearing. If the Bill does not allow victims to make explicit requests for compelled attendance then it will fall short of its own purpose and logic.
Notwithstanding the Minister’s assurance as to what happens in practice so far as the CPS is concerned—or happened when she was sitting in the Crown Court—surely it should be made obligatory for the CPS to ask the victim whether they wish the defendant to be compelled to attend and, if in receipt of a positive answer, to pass that view to the court. It will then be for the judge.
The current position is that judges have discretion to use their powers to compel attendance, even without a request from the prosecution, but we suggest that it is not clear when judges would exercise that power. We look to Ministers to confirm that—whether from them or, as the noble and learned Lord, Lord Thomas, has pressed for, from the judiciary—there should be guidance as to the exercise of the powers. We would also be grateful if the Minister would outline the reasoning behind why these orders are not automatic in the event of non-attendance and when reasonable force can be safely administered.
Our amendments offer a simple and straightforward improvement. They would have ensured that victims could make such requests and are consulted where the court is minded not to make a compulsory order, regardless of whether they had made the request. Sentencing hearings are often the final opportunity for victims to be heard and to feel that they are heard, so why would we deprive them of a say in decisions that directly shape that experience? Victims’ voices must be embedded in the process; they should not be treated as merely passive observers.
We have also observed that where a victim has died or is incapacitated, the system must not simply move on without them. Family members or appropriate representatives should be consulted in their place. We hope the Minister will carefully reflect on the points raised today to help fulfil the Bill’s stated purpose and fill what I am sure are unintentional gaps in its drafting. We look forward to hearing how the Government intend to move forward in due course but, for the moment, we will not press these amendments.
Lord Keen of Elie
Member’s explanatory statement
This amendment probes why the power to order offenders to attend a sentencing hearing applies to offenders aged 18 and above.
Lord Keen of Elie (Con)
My Lords, the amendments in my name and that of my noble friend Lord Sandhurst propose that the provisions in Clauses 1 and 2 apply to offenders from the age of 16, rather than only to those aged 18 and over. As drafted, Clauses 1 and 2 are explicitly limited in their application to those aged 18 or over. That is a departure from the original Conservative proposal for this power, which would have required the court to consult the relevant youth offending team if the offender in question was under 18. We therefore believe that the blanket threshold of 18 should be examined.
The age of criminal responsibility in England and Wales is, of course, 10 years of age. Even if it is believed that the age of criminal responsibility might reasonably be set higher than 10—a subject of recent debate in this Chamber—there is widespread cross-party consensus that it should be significantly lower than 18. Indeed, Scotland, after extensive consultation and careful consideration, chose to set the age of criminal responsibility at 14, reflecting evidence of developmental science and, indeed, public expectations in the field of criminal law.
A 16 year-old who has been convicted of a serious offence will be expected to go before a Crown Court judge to receive their sentence, yet will face no statutory obligation to attend their own sentencing hearing under these provisions. That appears inconsistent with the intent of these provisions.
We have seen both in recent cases and in parliamentary proceedings on this Bill how deeply distressing and unfortunate it can be for victims and families when an offender refuses to face the court at sentencing, an act described by Ministers as a “final insult” to those already traumatised. It is difficult to articulate why someone aged 16 who has been found guilty of a serious offence should be exempt from measures designed to ensure that they confront the consequences of their own criminal actions.
We should also reflect upon the wider tapestry of civic responsibility that has developed, and which this Government would also confer upon 16 year-olds. The Government have proposed to lower the voting age to 16. Someone aged 16 can marry; they can pay tax and join the Armed Forces. They assume a suite of responsibilities in civil society. They are treated as autonomous agents in a host of legal and social contexts, and to exempt them uniquely in this narrow but important sphere from the requirement to attend their own sentencing hearing when convicted of a crime appears inconsistent with those wider developments.
We owe it to victims and to the public to ensure that the measures we put on statute reflect a coherent and principled approach. These amendments ensure that they align with the realities of criminal responsibility and the Government’s wider policy. Someone who commits a serious crime at 16, such as murder or serious violence, should not be placed beyond the reach of these important attendant provisions. That is the inconsistency which appears to us in the present form of Clauses 1 and 2.
Accountability cannot be robust at conviction and sentencing in substance but simply optional at the point of sentencing in practice. We have seen very recent examples of relatively young people aged 15 and 16 committing the most heinous offences, in some instances murder. There can be no doubt, of course, that the existing framework for youth justice should be maintained and remain separate and distinct from these provisions. Nevertheless, when it comes to those of 16 years and older, their personal conduct does take them before the Crown Court. They appear there for sentencing and there is no principled justification for differentiating on the basis of age alone between 16 and 18 when culpability and legal responsibility have already been established. With that in mind, I respectfully commend these amendments.
Lord Marks of Henley-on-Thames (LD)
My Lords, briefly, these amendments would treat offenders over the age of 16 in the same way as offenders over the age of 18 in relation to three aspects of the compulsory attendance regime. The first aspect is the requirement that the court consult a youth offending team before making an order; the second is the use of force against young offenders, and the third is the use of prison sanctions in the case of service offenders.
The Member’s Explanatory Statement explains that these amendments probe why these provisions apply only to offenders over the age of 18. The position that the noble and learned Lord, Lord Keen, has taken is that they should apply to everyone over the age of 16. I suggest that the answer to the question is that, modest as they are, these provisions make different arrangements for offenders under 18 because they are designed to protect 16 and 17 year-old offenders, who are children and not yet adults. I submit, and we on these Benches believe, that it is right that contemporary criminal justice attempts to treat offenders under 18 in a way that acknowledges the particular vulnerabilities of 16 and 17 year-olds.
In the first group of amendments today, the noble Baroness said that the Government broadly agree with that position. The amendments seek to remove the distinction between 16 and 17 year-olds on the one hand and adults, albeit young adults, on the other. We say that this would be a retrograde step and that it should be opposed. I would add that of the measures that are proposed in the amendments, those sanctioning the use of force against 16 year-olds—to bring them to sentencing hearings against their will—would be particularly egregious and potentially very damaging.
Baroness Levitt (Lab)
My Lords, I start by reassuring your Lordships’ House that an attendance order can be made in respect of all offenders, including children. Most children are not tried in the Crown Court; they are tried in the youth court, even for serious offences. It is very rare for children of this age to appear in the Crown Court. If they do, an attendance order for their sentencing hearing can be made. The only difference is that force will not be used to get those children to court. The reason is that current operational policy, informed by the Taylor review of 2020, restricts the use of force on children. Domestic policy is also informed by the UK Government’s signatory status to the UN Convention on the Rights of the Child. We have committed to complying with its duties under the convention. During the debate a week ago in your Lordships’ House on the age of criminal responsibility, I said that this Government recognise that children in the youth justice system can be some of our most vulnerable citizens. Many of them are themselves victims of neglect and abuse, at the very least, and there is a disproportionate occurrence of special educational needs and neurodivergence in this cohort.
While we acknowledge that some children have committed very serious crimes for which they must be punished, this Government do not treat them merely as small adults. We have devised a separate but related regime for them. Where a child fails to attend court, or is disruptive once there, that may be treated as a contempt of court, but the maximum penalty is a fine, with the court taking into account limited means and making relevant arrangements for younger children. Lowering the threshold from 18 to 16 would cut across that safeguarding architecture. The Government’s view is that the strongest coercive path should be reserved for adults, where the legal, operational and ethical framework properly supports their use. I therefore invite the noble and learned Lord to withdraw his amendments.
Lord Keen of Elie (Con)
My Lords, I thank noble Lords for their measured observations on these proposed amendments. There is broad agreement across the House that attendance at sentencing is about accountability, about dignity for victims and about respect for the court. Refusal to attend sentencing has rightly been described by Ministers as a final insult to victims and families. The question before the House, then, is not whether the principle is right but to whom it should be applied.
These provisions are about ensuring that offenders confront the consequences of their actions, allowing victims to see justice done and hear sentencing remarks. They also uphold the authority and integrity of the court.
We are dealing with a situation in which 16 and 17 year-olds find themselves prosecuted in the Crown Court for serious offences, including murder, in respect of which they receive long custodial sentences. A 16 year-old can be convicted of murder or serious violence; that same 16 year-old would face no statutory obligation to attend their own sentencing hearing. Accountability cannot logically begin at conviction, however, and then disappear at sentencing. From a victim’s perspective, the same harm emerges regardless of whether an offender is 16, 17 or 18 years of age. The distress caused when an offender refuses to attend sentencing does not diminish by virtue of their age.
There is also the wider policy context that I mentioned before, which is that we now treat 16 year-olds, in essence, as adults in respect both of the proposal that they should be able to vote and of the fact that they can marry and can join the Armed Forces, and in respect of their wider social and political autonomy.
These amendments do not impact on the youth justice system. They do not remove judicial discretion. The courts will always retain discretion and take account of the welfare, capacity and safeguarding of 16 year-olds. In these circumstances, it respectfully appears to us that this proposal does not undermine Clauses 1 and 2, but rather seeks to strengthen them for the benefit of victims: someone whose conduct is serious enough to warrant Crown Court sentencing should not be shielded from accountability at the point of sentencing. But, for the moment, I beg leave to withdraw the amendment.
Baroness Brinton
Member’s explanatory statement
This amendment is intended to probe whether the threshold of four years to trigger the restrictions in clause 3 should be lowered
Baroness Brinton (LD)
My Lords, my Amendment 13 and the other amendments in this group look at the arrangements set out in Clause 3 on how courts should manage the difficult issue of the rights of a person with parental responsibility who is a convicted child sex offender. The range of proposals, and indeed my Amendment 13, are probing at what point being a convicted child sex offender must take priority over the rights that a child sex offender may have as a parent himself or herself—although it is usually a man. A range of proposals in Amendments 14 and 22 from the noble and learned Lord, Lord Keen, argue for any sexual offence, which is broadly what we are arguing too, and Amendments 15, 19 and 27 from the noble Lord, Lord Meston, argue for a conviction of more than six months. The Government, of course, start at the point of four years and above. There are real tensions here, and I am particularly looking forward to the contribution from the noble Lord, Lord Meston, who with his practical experience can help us non-lawyers bridge the differing priorities of having parental responsibility and the role of the family court versus the criminal court. This is where I want to start.
I am pleased that the Government recognise, in Clause 3, that we should have a clearer position on when convicted child sex abusers lose their parental rights. It has been iniquitous that parental rights have trumped the safeguarding of children, even when the person with parental rights has been convicted of CSA, child sexual abuse, including, astonishingly, of their own child or stepchild. The charity We Stand and the Victims’ Commissioner, Claire Waxman, have long campaigned to protect children from an abuser with parental responsibility and I thank them for their briefings. It is extraordinary that a parent convicted of raping their child has been able to retain access to and decision-making for that child even when they are in prison. There is absolutely no doubt that this has caused other parents and family members much distress, and often considerable expense when they have been to the family court to ask for access to be stopped, so we on these Benches welcome Clause 3 as a starting point. However, we are not convinced that it is quite strong enough.
One example is that the serious sexual offences listed in proposed new Schedule ZA1 to the Children Act 1989 include both indecent imagery offences and contact offences. Imagery offences have a minimum sentence of a community order, and this means that it could be argued that a Section 3 serious offence can be triggered at any sentencing threshold. However, the majority of sentences for indecent imagery tend to fall between three months and one year. Sentencing guidelines for contact offences start at a minimum of one year, so that would exclude these offenders under the Government’s proposals.
That is why Amendment 13 includes all convicted child sexual abusers. This is not about punishment of the offender; it is about protecting all children. We know from research that most child sex abuse takes place in the family environment and therefore that those children are at the highest risk from the offender. We Stand told us that research from the Centre of Expertise on Child Sexual Abuse shows that natural parents are the highest-offending group in intra-familial child sex abuse, which accounts for over two-thirds of offences. As a result, the children of convicted child sex offenders are already at the most risk.
A non-abusing or protective parent has a legal duty to protect their child from any child sex offender and any level of offending. I personally saw, in a case some years ago, how hard it can be for a non-abusing parent to protect their child when they also have to fight the family court’s assumption about the rights of the other parent, even one who is a convicted child sex abuse offender, because that trumps the offence. We know that the protective parent will often have little or no legal aid to fight to protect their children, including having no right to know where the offender is. This means that papers cannot be served. They also have no right to any information about the offender’s rehabilitational risk assessments, and that is also extraordinary. How can they comment on them or ask for assessments to be made? They are the ones looking after the children. Another problem is the limited timeframe on protective orders, such as prohibited steps orders, and, worse, no powers of arrest if these orders are breached by the offender. One consequence of this is that it makes no sense at all.
Extraordinarily, the offender has the right to make multiple applications to vary or overturn protective orders and to make repeated requests for contact with the children. In households where there has also been coercive control and domestic abuse, these repeated requests continue that abuse. Too often, the family courts see it only through the eyes of the offending parent trying to assert their rights. Section 91(14) of the Children Act is the basis for that.
We Stand notes that the basis of the Children Act 1989, and more recent primary legislation that has not yet been repealed, states that the involvement of a parent in a child’s life is linked to the furthering of the welfare of a child. This means that judges and other authorities, such as social services and Cafcass, are forced into a legal anomaly. They must balance the potential harm to a child from a convicted sex offender and parent with legislation stating that both parents’ involvement in the child’s life furthers the welfare of that child. This leads to inconsistent outcomes. Even if the presumption is repealed, this fundamental belief is still enshrined in the introduction and guidance to the Children Act. Children of the CSA parent are often at greater risk than other children who are automatically protected by existing criminal restrictions, such as sexual harm prevention orders and registration requirements.
Other protective parental concerns include non-molestation orders granted by courts, often for very short durations—six months or a year—so they are not an alternative to prohibited steps orders. They have to defend themselves in a family court to counter allegations made by the offender, often including parental alienation, even after a CSA conviction. What is worse, the nature of the courts means that they often end up in a revolving door and are in and out of the family court for years, which has emotional and financial consequences for them, and the fact of the CSA conviction never changes. That leads to how the family court might think that parental responsibility being exercised by the offender parent is realistic; surely it is not.
Research shows that those guilty of online and non-penetrative offences are at just as high risk of reoffending against their own children. This is important, and the reason why Amendment 13 has reduced the bar from a four-year sentence to any CSA conviction. Surely, for safeguarding reasons, now is the time to change the legal responsibility to the offending parent having to prove why they are safe to exercise that parental responsibility, through rehabilitation courses and often assessment by professionals.
The position of the court must start with the assumption of the protection of the child, not with the rights of the offender parent. That is why all convicted child sex offenders with parental responsibilities should have a prohibited steps order for each child at the time of their conviction. The PSO should have a penal notice attached to it to prevent breaches, and a PSO is useless if it does not have the power of arrest if there is a safeguarding issue. Because many protective parents and their families are in a living hell, it would be good if the legislation can be retrospective, or there should be specific guidance to the family court that the protective parents are to be assumed to have overriding parental responsibility.
Lord Meston (CB)
My Lords, I have four amendments in this group, three of which, like that just proposed powerfully by the noble Baroness, Lady Brinton, seek to explore the thinking behind the four-year minimum prison sentence required by Clause 3 to trigger the duty of the Crown Court to make a prohibited steps order to restrict the offender’s parental responsibility. My Amendments 15 and 19 would lower the minimum sentence required to one of more than six months.
Before I develop the argument a little further, I will comment on a couple of points made by the noble Baroness. Much of what she said, I entirely agree with, but please let us not talk about parental rights. The central reform of the Children Act 1989 was to substitute for the concept of parental rights the concept of parental responsibility, which is why it appears in the Bill and has been part of our law for a long time. As I have already said, it replaced the reference to rights as determining who had authority over aspects of the child’s life or upbringing. The other point I am afraid I take issue with is her suggestion that, in too many cases, the court sees matters only through the eyes of the parent who is seeking to assert his rights or responsibilities. That, I suggest, is not correct, and it is certainly not my experience of how the family courts work.
Returning to the substance of these amendments, it is clearly difficult to determine where to draw the line in such cases, bearing in mind that a convicted person whose sentence does not cross that line is still quite liable to have any parental responsibility restricted by the family court if it cannot be done in the Crown Court. During debates in another place, the logic of the four-year minimum sentence was questioned. The Minister there argued that the four-year threshold provided a predetermined marker of seriousness for cases in which the restriction of parental responsibility by the Crown Court is to happen automatically.
The Minister said that the Government wanted to minimise the strain placed on the family court. There is force in those points at a practical level. As I suggested at Second Reading, one reason to draw the line at four years is to make best use of the resources, expertise and powers of both the criminal and the family court respectively, without overburdening either. However, one disadvantage of leaving too many of these cases to the family court is that it would deprive the mother and other family members of the benefit of the automatic suspension of parental responsibility, which the Bill provides. Indeed, it would require those who want to restrict parental responsibility to make their own applications to the family court, possibly without legal assistance, as the noble Baroness has indicated.
It is possible, by use of Ministry of Justice statistics for 2023, to get some approximation of the cases involved, which would give some idea of the number of offenders and the number of children who would be affected. In this respect, I am indebted to Amanda Newby, associate professor at Northumbria University, for her research and expert assistance on this and other amendments. In 2023, in England and Wales, there were 1,924 cases of serious sexual abuse, where an immediate prison sentence of between four and 15 years was imposed, in addition to which there were 44 sentences of life imprisonment. In the same year, there were some 1,093 cases involving serious child sexual abuse, where an immediate prison sentence of more than six months and less than four years was imposed. Only 59 such offenders were sentenced to six months or less.
Those statistics all involve adult offenders. It is clearly not possible to ascertain how many of those held parental responsibility for a child at the time of sentencing, but I suggest that it could have been considerably lower. On that basis, moving the threshold down to more than six months’ imprisonment would or could increase the number of potential cases by approximately 1,000 annually—although I repeat that many of those probably would not hold parental responsibility. That likely increase does show that a significant number of children would not be protected under the Bill if the threshold is not lowered. That is indeed an argument for lowering the threshold, as I hope I have indicated.
Amendment 27, in my name, perhaps illustrates some of the difficulties in drawing lines. The offence of sexual communication with a child under Section 15A of the 2003 Act is not covered by the Bill as presently drafted, because the maximum sentence for that offence is two years. That was an offence added in 2015 to the 2003 Act to cover a specific form of sexually motivated grooming, and it might now be thought that it should be covered by the provisions of this Bill. Essentially, it should be accepted that one real difficulty is that the Crown Court, under the Bill, is going to be required to make orders under the Children Act for which the family court is generally the more appropriate forum. Further, the Bill does not contain any provision for mandatory review by the family court, as was provided under Section 18 of the Victims and Prisoners Act, known as Jade’s law. In the family court, the other parent would have the status of a party and could be represented, and that court would have access to the relevant family history and to evidence in the form of professional welfare and other reports if required. In other words, quite frankly, there are compelling arguments either way.
Amendment 34 is in my name and has the support of the noble Baroness, Lady Brinton. It does not concern sexual offences but, rather, seeks to extend what is now known as Jade’s law, which was enacted under the Victims and Prisoners Act 2024. As the noble Baroness reminded us, Section 18 restricts parental responsibility where one parent kills the other and is convicted of murder or a specific category of manslaughter. At the suggestion of the Victims’ Commissioner, we seek to amend that provision to include the attempted murder by one parent of the other.
I do not recall that being suggested when the 2024 Act passed through Parliament—the omission of attempted murder may have been an oversight—but there was some caution when, at various stages, suggestions of extending Jade’s law to other offences of violence were ventilated. Be that as it may, I submit that it is clearly appropriate to include attempted murder involving the most extreme form of non-fatal assault. To do so would relieve the victim from the obligation to seek the perpetrator’s agreement on decisions concerning the child and, if agreement is not forthcoming, from having to apply to the court.
The Victims’ Commissioner has become aware of the concerns of survivors of attempted murder when the offender has retained parental responsibility over their children. Without giving details, I had to deal with a case where the convicted parent used his status to obstruct the other parent, clearly motivated only by a desire for revenge, causing the other parent further distress and expense, as well as an inescapable fear of what he might try to do when released from prison. People in that position should be relieved and shielded from having to go to court unless absolutely necessary to do so.
Finally, I join the noble Baroness in mentioning the commencement of Section 18—Jade’s law. It is not retrospective and has yet to be brought into force, so the reality is that nobody has yet benefited from it. Can the Minister say when it will be put into effect?
I do not want to trespass on arguments to be advanced on other amendments, but I share the curiosity about the provisions in the Bill covering what would happen in the event of an acquittal on appeal or when a sentence is reduced on appeal. To that I add the question of whether prohibited steps could be made where a sentence is increased on appeal or under the unduly lenient sentence scheme to one of more than four years.
Lord Russell of Liverpool (CB)
My Lords, I will speak very briefly to support the noble Lord, Lord Meston, and the noble Baroness, Lady Brinton, on Amendment 34. As they mentioned, the Victims’ Commissioner has been approached by a variety of individuals who survived attempted murder by their other half or partner. In those cases, they face a dilemma. In some cases, the difference between being murdered or not is a matter of an ambulance arriving two minutes earlier and managing to stop a murder attempt, whereas if it arrived two minutes later that person might have died. Alternatively, it might be a matter of a neighbour hearing what was going on and making a telephone call so that the authorities arrive in time. It is a very narrow difference, frankly, as to whether somebody ends up dead or injured but alive.
In some of those instances, the perpetrator, who has gone to prison, retains parental responsibility but may not know that. The surviving partner has a dilemma: if they bring it to the attention of the partner who is in prison and he is unaware of those rights, he may be tempted to try to use them to disrupt the life of the surviving partner. I do not think that anybody would wish that to happen.
In the instance that a survivor feels strongly enough that they want to try to go through the courts to have the parental responsibility of the person who tried to kill them stripped away, the onus is on the survivor to go through the family courts. That can be quite a lengthy and complicated process. It is often made more difficult because the quality and flow of relevant information between the criminal court, which sends the attempted murderer to prison, and the family court is not always as open and as clear as it might be.
For all those reasons, I hope that, when she comes to reply, the Minister can clarify the Government’s view on this and, in particular, why commencement of the original Jade’s law seems to have been delayed. What is holding it up? How quickly can we expect it to be put into operation?
Lord Hacking (Lab)
As my noble friend will recall, I raised this issue at Second Reading. I support Amendment 14, in the names of the noble and learned Lord, Lord Keen, and the noble Lord, Lord Sandhurst, and Amendment 15, in the name of my learned friend, if I may refer to him in those terms, the noble Lord, Lord Meston. I add that I have sympathy towards the drafting of Amendment 13, tabled by the noble Baroness, Lady Brinton.
As I say quite frequently in this House—the issue of sexual offending arose in the passage of the Children’s Wellbeing and Schools Bill, and I said it then and I repeat it now—sexual offences in the family environment are appalling. The offence of a father—it is often the father, rather than the mother—sexually attacking, which I think is the right word, his own son or daughter, who are as young as 14 years-old, is absolutely appalling. It is beyond most of our comprehension that any father would do that—it is certainly beyond my comprehension.
The important thing here is the value of the prohibited steps order made in the family court, because that can be carefully fashioned to the particular needs of a family. Therefore, it is welcome that the family court has this provision. The use of this prohibited steps order is most valuable for the protection of children and spouses in the family.
I am a little puzzled by the provision in Clause 3, and I ask my noble friend the Minister to reply to this, under which it is obligatory, within the circumstances set out, for a prohibited steps order to be made. I would be grateful for guidance—I am sorry I have not researched this—on whether the power to make a prohibited steps order is a matter of discretion by the Crown Court, or whether it is the situation that a prohibited steps order can be brought into force only under the drafting of Clause 3? I would be grateful if my noble friend the Minister could answer that.
Lord Thomas of Cwmgiedd (CB)
My Lords, I will make a few observations. No one can doubt the revulsion towards sexual offenders who have attacked their own children or have the potential to do so, but there are two practical points that we must bear in mind.
First, the criminal justice system and the criminal courts, and the family justice system and the family courts, have been starved of resources by both Governments—there is no doubt about that. When sentence lengths are increased by both parties, we end up with a situation in the prisons that is a crisis. In deciding what orders to make in this kind of case, it is of paramount importance to have regard to the resource implications. It is no use saying that there is money for this. There is not. The courts system is starved, and the result of that is victims suffering in a whole host of other cases by the tremendous backlog. Both this Government and the last Government are responsible for the position into which the courts have been placed. When we look at this, please have regard to resources.
The second point, a point made by the noble Lords, Lord Russell of Liverpool and Lord Meston, is that it is important that we get correct the balance as to what the Crown Court is to do and what the family court is to do. I am not sure, having listened to this debate, that that is a matter that has been sufficiently addressed. The one thing you cannot have—because it is a waste of resources and does not deploy expertise correctly—is the lines not clearly drawn. I hope very much that, before this comes back, there will be the opportunity for those who have day-to-day responsibility in the judiciary and the Courts Service, together with the ministry, to be sure that we have got the most effective and efficient use of resources and the right kind of drawing the line. It is very difficult, but we cannot ignore the bankrupt state of the courts. It is a regrettable fact, and we must not make the mistake we have made in relation to sentencing.
Lord Sandhurst (Con)
My Lords, I apologise for organising my notes here—I have been listening hard. I am grateful to all noble Lords who have spoken in this group, which concerns the operation of Clause 3 and the use of prohibited steps orders for the safeguarding of children where a parent or individual with parental responsibility has been convicted of serious sexual offending. The group rightly raises profound questions about thresholds, discretion, safeguards and consistency, and indeed, as the noble and learned Lord, Lord Thomas, has pointed out, the balance between the two wings of the court system—the family and the criminal courts. I thank noble Lords for their searching and constructive contributions to this debate, all of which are motivated by a shared desire to protect children from harm.
I begin with Amendment 13, tabled by the noble Baroness, Lady Brinton, Amendment 14, in my name, and Amendments 15 and 19, tabled by the noble Lord, Lord Meston. All these amendments concern and probe the four-year custodial threshold that currently triggers the duty on the Crown Court to consider making a prohibited steps order. I thank the Government at the outset for the constructive manner in which they have already engaged with the clause. They accepted, during the Bill’s passage through the other place, that the original scope of Clause 3 was too narrow. As drafted on introduction, it applied only where the offender had committed sexual abuse against their own child. Following sustained concern, the Government rightly expanded that clause, so that it applies where the offender has abused any child. That change was welcome and necessary.
However, while the class of victims has been widened, the custodial threshold remains set at four years. It is here that noble Lords have expressed deep unease. A four-year sentence is an extremely high bar. There are numerous sexual offences involving children that may result in sentences well below four years yet would plainly justify the imposition of a prohibited steps order to safeguard a child, such as sexual communication with a child, causing or inciting a child to engage in sexual activity, certain forms of indecent assault or online grooming behaviours. These may, depending on the facts, attract sentences of significantly less than four years. Yet it would be surprising to suggest that an individual convicted of such conduct should automatically fall outside the scope of a safeguarding measure which has been designed to prevent them from exercising parental responsibility without scrutiny.
I think all noble Lords accept that there is a balancing exercise here. The state should not intervene lightly in family life. We must be careful not to construct a regime which is too blunt and results in unnecessary or disproportionate separation of children from parents. However, equally, Clause 3 as drafted risks being too narrowly drawn and failing to engage precisely in those cases where concern is most acute. The current threshold risks excluding serious and dangerous individuals because the custodial term imposed falls short of an arbitrary figure. We look to the Minister to explain why four years was chosen, what evidence underpins that decision and why a lower threshold or an offence-based approach was not chosen.
Amendments 22 and 27 raise an issue of rather different but also troubling nature—the power of the Secretary of State by regulation to amend the list of offences to which Clause 3 applies. As drafted, that power is not limited to expansion. It allows the list to be amended. That necessarily includes the possibility of reduction. It is difficult to conceive of a principled reason why a future Government would wish to remove sexual offences from the scope of a safeguarding provision of this kind. That prospect should concern the whole House. We accept the need for flexibility. The criminal law evolves. New offences may be created, particularly in the online sphere, as was illustrated by the recent Grok AI scandal and by non-consensual deepfakes of women and children in particular.
I recognise that Parliament cannot foresee every future risk. Recent controversies involving emerging technologies only underline that reality. It is therefore sensible that Ministers should have the power to expand the list where gaps emerge. However, it is not at all clear why the power should run in the opposite direction. Our Amendment 22 seeks to ensure that the Secretary of State would be able only to expand the list of relevant offences rather than shrink it. Opposition to what is modest drafting would raise serious questions about the Government’s intentions. We hope that the Minister will reflect carefully on that.
In that context, we are grateful to the noble Lord, Lord Meston, for Amendment 27, which would add Section 15A of the Sexual Offences Act 2003, on sexual communication with a child, to the schedule. This offence criminalises the deliberate sexualised communication with a child for the purpose of sexual gratification. A technology-enabled form of abuse can be profoundly harmful. It often forms part of a wider pattern of grooming. Its inclusion in the schedule would materially strengthen the safeguarding framework, particularly if the threshold under Clause 3 were to be revisited.
Finally, Amendment 34, tabled by the noble Lord, Lord Meston, seeks to extend Jade’s law to cover attempted murder. This amendment raises an important principle. While the law recognises that certain conduct is so grave that parental responsibility should be curtailed automatically, it is difficult to see why the distinction between murder and attempted murder should be a point of difference, particularly given the catastrophic harm that attempted murder can cause.
This has been a thoughtful and serious debate. The amendments in this group are aimed at strengthening Clause 3 to protect children from harm while respecting the practical policy constraints which the Government face. We have no doubt that the Minister will engage constructively with the issues raised and provide the House with the assurances and explanations that these amendments request.
Baroness Levitt (Lab)
My Lords, the Government understand that the aim of this group of amendments is to ensure that the children, who are at the heart of these cases, are protected. We share that objective, but these amendments may cause more problems than they are intended to solve. The amendments are all intended to be made to legislation, either proposed or already enacted, which deals with slightly different situations—convictions for certain serious sexual offences, children conceived as a result of rape and where one parent has been convicted of the murder of the other. However, all these pieces of proposed or enacted legislation have one thing in common. They are not intended to be additional punishments or to replicate—far less, replace—the experience and expertise of the family court. They are intended to protect children who are caught up in these very serious situations as quickly as possible.
In each of these three situations, the Government have identified issues in which the crime for which the relevant person has been sentenced is so serious, with them usually serving a long prison sentence, that it is relatively straightforward to conclude that a prohibited steps order will be in the best interests of the child. These proposals allow the Crown Court judge automatically to restrict the exercise of parental responsibility at the time of sentence. At the moment, following sentence the remaining parent must apply to the family court to do the same thing, but this inevitably takes time and causes distress.
It is known that some perpetrators use their parental responsibility to continue to exercise control, even though they are behind bars. In relation to a parent serving a life sentence for the murder of the other parent, it is axiomatic that there will be no other parent to make the application. What this legislation does not do is automatically restrict the exercise of parental responsibility in all cases forever. The defendant who has had it restricted can apply to the family court to have it restored. It does put the onus on them to do so. These provisions merely provide a quick and convenient method of protecting children and victims. However, restricting the exercise of parental responsibility is an extremely serious thing to do. For this reason, the Government must give serious consideration to how to balance the competing principles that are involved.
Against this background, I turn to Amendments 13, 14, 15, 19, 22 and 27, tabled by the noble Baroness, Lady Brinton, the noble Lord, Lord Meston, and the noble and learned Lord, Lord Keen of Elie. They seek to broaden the offences that are within the scope of this measure and reduce the minimum sentencing threshold from four years. The Government believe that any individual who poses a serious risk to children should not be able to exercise their parental responsibility. For the avoidance of doubt, I make it clear that the Government’s view is that parents do not have rights. The only rights are those of the child.
However, to create a power allowing the automatic restriction at the point of sentence, we must be sure that to do so would be in the best interest of the child. That is why we have set the threshold at sentences of four years’ imprisonment. In our judgment, if the behaviour of the defendant is sufficiently serious to warrant a sentence of four years or more, it is safe to assume that it would be right to restrict the exercise of parental responsibility. We have set it at four years because this is already a threshold for seriousness used for other purposes in criminal sentencing. For certain offences, including sexual offences, an offender who is sentenced to four or more years serves two-thirds rather than a half of their sentence in prison. It already recognises the particular seriousness.
This pre-existing legislative provision is why we have chosen four years as the indicator of seriousness. If we were to lower the four-year threshold, we could risk moving away from where we can be sure that restricting the exercise of parental responsibility will always be in the best interests of a child into territory where it is less clear. Equally, we must ensure that these measures are not in contravention of a person’s human rights. In particular, we need to ensure that any interference with a person’s right to private and family life under Article 8 of the European convention is a justifiable and proportionate way of achieving a legitimate aim. We have set the threshold at four years for serious child sexual offences as we are of the view that, given the risk of harm to children, this intervention is justified.
That is not to say that the parental responsibility of offenders who have committed sexual offences, whether against their own child or someone else’s, but have received a sentence of less than four years, cannot be restricted. In those cases, an application can still be made to the family court, which is best placed to consider all circumstances, including what is in the best interests of the child.
The noble Baroness, Lady Brinton, raised a number of issues about shortcomings in the family court. With the greatest of respect to her, this is perhaps not the time and place to expand on those, though they are of course serious points. As I think the noble Baroness knows, I have responsibility for family justice policy within my department, so these are issues that perhaps she and I can discuss on another occasion.
When we met, the noble and learned Lord, Lord Keen, asked about appeals, and it has been raised again today. I promised him a reply. In cases where there is a successful appeal and an offender is acquitted or the sentence is reduced below four years, the Bill provides a clear process for the review of the prohibited steps order. The relevant local authority will be under a duty to make an application within a very short time to the family court, so that the family court can consider, exercising its expertise and experience, whether the prohibited steps order imposed by the Crown Court should be varied or discharged.
I turn now to Amendment 27 in the name of the noble Lord, Lord Meston. The offence of having sexual communications with a child carries a maximum sentence of two years imprisonment, so this could not be added to the list unless the requirement of a four-year minimum sentence were removed.
I turn now to Amendment 34 in the name of the noble Lord, Lord Meston, and to which the noble Baroness, Lady Brinton, put her name and has spoken. This would expand Jade’s law, which provides for the automatic restriction of the exercise of parental responsibility in cases where one parent kills the other. The noble Lord and the noble Baroness wish to amend the legislation so that it includes cases of attempted murder. I am grateful for being told that that was at the suggestion of the Victims’ Commissioner, Claire Waxman, for whom I have the utmost respect.
I entirely recognise that, in order to be convicted of attempted murder, what the defendant has done will have been truly horrific—after all, a defendant can be convicted of this only if they had the intention actually to kill—and nothing I say is intended to minimise that. But I repeat what I said earlier. The automatic restriction of the exercise of parental responsibility is not intended to punish the defendant, far less to act as a mark of societal disapproval. It is about children. I repeat that Parliament must be satisfied that restricting the exercise of parental responsibility will be in a child’s best interests.
The sad but determining factor in these killing cases is that the child is going to have only one parent left, and that parent will usually be serving a life sentence. There is no other comparable situation. Where the defendant did not succeed in murdering the other parent, although they intended to do so, they will usually be serving a long sentence, but there will be a surviving parent. In most cases, the surviving parent will be able to make an application to the family court if one is felt necessary. This lessens the need for an automatic referral to the family court.
It would also be difficult to justify why, if attempted murder were included, other serious criminal offences such as Section 18 wounding, which also carries a maximum sentence of life imprisonment, were not. Your Lordships should also be aware that adding a further measure into Jade’s law at this point will risk delaying its implementation, which has already taken a lot longer than the Government would have wished.
I have been asked for the reasons for that, and I will give them as quickly as I am able to. It is a complicated situation, but this is a unique piece of legislation. There is no existing process that we can import or learn from. There has been significant engagement with various partners that will be involved in the delivery of Jade’s law: local authorities; the Crown Prosecution Service; the National Police Chiefs’ Council; and His Majesty’s Courts & Tribunals Service. The Government also have to make changes to criminal and family procedure rules, and we also have to develop broader guidance for practitioners and families. But we are on it. We must bring Jade’s law into force as soon as possible to protect the children who need it most. We must be cautious about doing anything at this stage that could extend this process.
As with the measures we are bringing in through this Bill, officials are developing a robust system to measure how Jade’s law works in practice. We want to understand how it works in practice, and from there we can properly consider whether other changes can be made to it. For all these reasons, I invite your Lordships not to press these amendments.
Lord Hacking (Lab)
If I understood my noble friend correctly, the protected steps order can be made only if Clause 3 is activated, and there is no discretion in the Crown Court to make a prohibited steps order in other circumstances, particularly where the offence did not, as drafted, carry a four-year imprisonment. In fact, I think my noble friend then said that parents can apply to the family court for the protected steps order. I find that rather awkward. Surely, when the Crown Court has all the facts in front of it and is in a position, therefore, to make a prohibited steps order, it should do so because it has the necessary knowledge. Of course, the prohibited steps order could be adjusted in a separate application to the family court.
Baroness Levitt (Lab)
The short answer to my noble friend’s question is that he is right: there is no discretion. The reason that there is no discretion is because, in fact, the Crown Court is the one court that does not have all the experience and all the knowledge—it will not have Cafcass reports or anything like that. It is simply making an automatic order when there is a certain level of seriousness that has been reached. It is for the family court to consider all the important factors in other cases about whether such an order is in the interests of the child. The Crown Court judge does not have the expertise, and it will cause delay. I have said it once before today—I may have already said it twice—the one thing the criminal courts do not need is any further delays.
Baroness Brinton (LD)
My Lords, I am very grateful to the noble Lords who have spoken during this debate. As I said right at the start, we are looking at the entire spectrum of time as to where the responsibility for imposing these orders should start and stop, and that is anywhere between any child sexual offence and a sentence of four years.
I am grateful to the noble Lord, Lord Meston, for his comments about parental rights and responsibilities. I absolutely understand that. I am sure he also understands that, to the other parent, it often feels as though the convicted parent has more rights than their children. That is where the problems lie, and that is why there is such passion about this among those parents who are trying to make sure that their children are protected. I am also grateful to him for highlighting the data. It is important for us to remember that around 1,000 children might possibly be at risk if this goes wrong.
Just before I respond to the Minister, I want to thank the noble and learned Lord, Lord Thomas of Cwmgiedd. Yes, the court system is starved of resources. I want to go further than he does. It is not just about looking at resources; it is about a clear plan to increase resources and ensure that duplication and anything else does not happen. But we know the court system is under real pressure, and I say to the Minister that I recognise, in the amendment that I have table, that the last thing that we would want to do is to impose further burdens on an already difficult area.
I completely understand that the Government have to balance their competing restrictions. The problem is that those of us who have tabled amendments say that four years is not the safety net that the Minister alluded to; it is too high. I wondered whether there might be any way to provide guidance to the family court that asks it to look very clearly at any child sexual offence, even if it is not a four-year sentence, so that the Crown Court is not burdened with the responsibilities of looking at it in the way that the family court would.
Lord Murray of Blidworth
Member’s explanatory statement
This amendment would enable the Crown Court to take into account the best interests of the relevant child as well as the interests of justice when deciding whether to make an order.
Lord Murray of Blidworth (Con)
My Lords, my Amendments 16, 25 28 and 33 arise from the recommendations of the Joint Committee on Human Rights, of which I am a member. The Joint Committee has written to the Ministry of Justice on a number of occasions regarding these issues and has so far not met with a satisfactory response. I shall listen very carefully to what the Minister says on these points.
As the Bill stands, the Crown Court must make a prohibited steps order after sentencing. It is right that an offender should not be able to exercise parental responsibility, but there should be safeguards in the Bill to ensure that children do not suffer as a result, especially if the effect of the order is that there is no one who can exercise parental responsibility.
On Amendments 16 and 28 in my name, unlike the family court, the Crown Court would have limited discretion about how best to protect the interests of affected children, as we heard identified by the noble Lord, Lord Hacking, in the previous group. Under the Bill, the Crown Court’s main discretion is that it must not make an order if
“it appears to the Crown Court that it would not be in the interests of justice to do so”—
a well-hallowed phrase in legislation that noble Lords will find in Clause 3(4)(c).
In this context, it is unclear what is meant by the phrase—in particular, whether it would allow the court to consider the interests of the affected children or just of the offender. The Joint Committee wrote to the Minister asking for clarification as to whether the effect of the Human Rights Act would be that the Court would be able to consider the interests of the child when making the order. The Minister replied that the court would have to act compatibly with the ECHR. In fact, she said:
“Under our existing measure, the Crown Court will be able to consider all of the information available to it, as part of the criminal proceedings, when deciding whether to exercise the interests of justice test (and in doing so, will be bound to act compatibly with the Convention Rights given section 6 of the Human Rights Act 1998)”.
As noble Lords can see, that is an answer that, I fear, lacks clarity.
Amendments 16 and 28 would provide clarity on this point. They would ensure that the Crown Court was able to get information about the children’s circumstances and itself consider the implications for the children before making an order. They would simply append, after
“in the interests of justice”,
the words
“or that it would not be in the child’s best interests”
to make the prohibited steps order.
On Amendments 25 and 33, there would be particular concerns if the effect of such an order was that no one was able to exercise parental responsibility for a child. In Jade’s law, as we heard in the previous group, there is an attempt to address this by requiring the relevant local authority to apply to the family court immediately after the Crown Court has made its order. We can see that in new Section 10B(2) of the Children Act 1989 in Section 18 of the Victims and Prisoners Act 2024.
Amendments 25 and 33 are carefully modelled on that provision in the 2024 Act. They would impose the same requirement on the local authority if an order under the new provisions had the effect that there was no one who could exercise parental responsibility for the child. In correspondence with the Joint Committee on Human Rights, the Minister said that such a provision was appropriate in the case of Jade’s law, where one parent had killed the other, because in those cases there would almost always be no one with parental responsibility. But in the cases covered by the Bill, in contrast, there might or there might not be. The Minister said that the local authority would be aware if the child might be left in this position and would be able to take appropriate action.
That is a very unsatisfactory answer. There can be no confidence that the local authority will simply be aware of this scenario and there would be no detriment to making it clear in the Bill. Relying entirely on a local authority’s discretion invites the risk that a child is left without someone with parental responsibility and falls between the gaps.
These amendments would mean that the local authority would be under a duty to apply to the family court in such cases in exactly the same form as it would under Jade’s law. The Minister said in correspondence that local authorities would always know the circumstances of a particular case, so the Government should agree, and have already agreed in principle, that it would be workable for the Bill to impose a duty on them. There is no good reason for these amendments not to be accepted. I beg to move.
Lord Meston (CB)
My Lords, I begin by commenting on two parts of the noble Lord’s amendments. I find it difficult to understand how his Amendment 16 would work in practice. These orders have to be made at the point of sentencing; they cannot come later on as an afterthought or at a later hearing. More importantly, I question how the Crown Court would be in a position to assess what is or is not in the interests of the child, and, certainly, how the Crown Court could do it without a report that typically, in the family court, might be available from Cafcass or a local authority.
Moreover, what would the Crown Court do if the suggestion of not making the order to remove or restrict parental responsibility is strongly opposed by the other parent, as would quite likely be? That other parent, certainly in the Crown Court, would not have party status and would probably not have legal representation.
On the face of it, the Crown Court might face the prospect of a contested hearing on the question of whether to restrict parental responsibility. Clearly, that is much better dealt with by the family court in the appropriate way. Having said that, I of course understand the force of the noble Lord’s Amendment 33, which seems to present a sensible solution to a potentially difficult problem.
I move briefly to my amendments in this group. They are procedural and evidential amendments. Amendment 23 would provide for the Crown Court that is required to make the prohibited steps order to be supplied with all necessary information to make the order, enabling it to make the order in appropriate terms, covering all the children to whom it might apply and enabling it to be provided to the other parent and others holding parental responsibility. As it appears from the very length of Amendment 23, parental responsibility can be acquired by a number of different people in a considerable range of situations. It almost goes without saying that the convicted offender may not be a reliable source of information about the children for whom he has parental responsibility, or the basis on which he might hold it. The Crown Court therefore cannot be expected simply to make a blanket, generic order referring to all or any children for whom the defendant holds or might hold parental responsibility. That would be of little use to anyone. The court therefore has to be in a position at the point of sentencing to make an order that should refer to specified children. For that, accurate and reliable information should be provided. As the amendment suggests, that would be best done by the Probation Service as part of the pre-sentence report.
Once that order has been made, it is also important that those who are affected by the order are notified of it. Hence, Amendment 17 would provide for notification by the Crown Court to the relevant local authority and the provision of a copy of the order, with a duty on the local authority to convey that information by onward notification to all persons who hold parental responsibility for the child or children concerned. Clearly, they need to know what has been ordered and to understand the effect of it. The local authority is best placed to provide that information.
Finally, Amendment 29 would ensure that in rape cases the victim is promptly and properly informed that the order has been made, with an obligation on the court to notify the relevant local authority within seven days of the order being made and an obligation on that local authority within 14 days thereafter to notify the victim of rape. Without this, there is a risk that the other parent or holder of parental responsibility for the child or children concerned, and the victim of the rape, are not made aware of the order or of its implications. They may be aware if they attend a sentencing hearing, but that is not certain. In any event, a local authority, particularly one involved with the family, would be best able to explain the effect of the prohibited steps order, its duration and other implications.
Lord Thomas of Cwmgiedd (CB)
I shall again make one very brief observation. It is obvious that what is to be provided is a short, speedy, summary step to protect whatever range of offence is decided on. I agree completely with the noble Lord, Lord Meston, that the Crown Court cannot be the appropriate place to start debating what is in the interests of the child. We need to see whether a form of order can be devised, and an exchange of information put forward, that does not impinge on resources, say for the Probation Service, which is probably going to be in a worse position than the courts, that can give the speedy remedy that is needed simply and transfer, for the making of the final order, to the family court, which is obviously the right place to do it. I am not sure we need all these complicated pieces of legislation to do that: rather, it should be something probably very much simpler, with a power for the Minister to make regulations once a proper, simple procedure has been worked out. I fear we are getting ourselves into a degree of complexity that is not desirable.
Baroness Brinton (LD)
My Lords, this has been a good and fairly brief debate. I thank all noble Lords who have spoken. Our Benches have some concerns with the proposals from the noble Lord, Lord Murray, for exactly the reasons that the noble Lord, Lord Meston, and the noble and learned Lord, Lord Thomas of Cwmgiedd, have mentioned. I think perhaps the best way of summing the debate up is to say that these Benches are completely in agreement with the common-sense speech of the noble and learned Lord, Lord Thomas. We are trying to resolve a problem that should not be resolved by legislation. It should not be in the Bill. This is about how two different courts work and about ensuring that the information flow works. The fact that we are laying amendments demonstrates that there are failures in the system. The Minister has the unfortunate role of trying to resolve that problem. We in this House cannot always legislate against the detail. However, I hope the Minister has heard the real concerns around this Committee.
Lord Keen of Elie (Con)
My Lords, I am grateful for the contributions that have been made. I shall begin with the points made by the noble Lord, Lord Meston, in his amendments, which seek to clarify what is meant by, for example, the “relevant local authority” in this Bill, as well as to put extra provisions in place concerning parental responsibility. We support the aim behind Amendment 17 that others with parental responsibility for the child in question are properly and, indeed, promptly informed if a prohibited steps order is made against an offender. These are clearly well-intentioned amendments that highlight that certain aspects of the Bill need to be thought through a little more carefully and clarified. I hope that the Minister will provide assurances about how that can be achieved.
I also thank my noble friend Lord Murray of Blidworth for bringing forward his amendments, which would allow the Crime Court to take into account not only the interests of justice but the best interests of the child when deciding whether to make a prohibited steps order. On these amendments, we are not at this stage able to adopt a settled position. That is not because the underlying principle is unsound, but because further clarification is required from the Minister. As drafted, one of the exemptions to the making of a prohibited steps order is where it would not be in the interests of justice to do so, but that, as has been observed, is a broad and somewhat opaque formulation. We would be grateful if the Minister could explain what circumstances the Government envisage falling within that exemption. In particular, can the Minister offer examples of cases in which it would genuinely be in the interests of justice for a child to remain under the parental responsibility of an individual convicted of a serious sexual offence and sentenced to more than four years’ imprisonment?
These amendments would add an explicit reference to the best interests of the child. That is a familiar concept in family law, but its interaction with the existing exemption is not at all clear. I invite the Minister to clarify whether the Government consider that the child’s best interests are already subsumed within the interests of justice, or whether this amendment would materially alter the test applied by the court.
Amendments 18, 20, 24, 30, 31 and 32 in my name reflect our concerns about the drafting of Clauses 3 and 4. As drafted, both clauses state that a prohibited steps order against an offender that restricts their parental responsibility will not immediately cease to have effect if an offender is acquitted on appeal. Instead, both clauses include sections that set out a review process whereby the relevant local authority must make an application to the court for the acquitted offender. That is hardly consistent with what the noble and learned Lord, Lord Thomas of Cwmgiedd, referred to as a short, speedy and summary order in circumstances where there is a successful appeal.
The clauses as drafted unnecessarily complicate and confuse the issue. The law should be clear that an acquittal brings the prohibited steps order to an end. People who are found to be not guilty of an offence should not have their parental responsibility, or indeed any other rights, restricted, even on a temporary basis. That principle is straightforward and our amendments seek only to ensure that the legislation reflects that clarity. I hope that will have the support of the House, and I urge the Minister to reconsider and simplify the drafting of Clauses 3 and 4. There is no compelling reason why these review orders should be left in place for innocent citizens and then be the subject of applications by a local authority on their behalf to another division of the court.
Amendment 18 is tabled to affirm our support for the provision of Clause 3 that, where an offender only has their sentence reduced, a prohibited steps order should continue to apply. We on these Benches already have reservations over why an offender’s length of imprisonment or detention must be four years or more for parental responsibility to be restricted. I note that the amendment made by the noble Lord, Lord Meston, refers to a period of six months rather than four years. Clearly, there is scope for consideration as to where the line might be drawn as a matter of policy. If a sentence of four years is reduced on appeal, we do not believe that this should result in a prohibited steps order ceasing to have effect. It is quite unlike the situation where there is an acquittal on appeal. Such an outcome could create significant uncertainty for the child for whom the offender previously had parental responsibility. Crucially, we cannot lose sight of the fact that the offender remains guilty of a serious sexual offence against the child regardless of any adjustment in the sentence. An increased risk to the child’s safety or well-being could well emerge from such a situation.
There is also the point made by the noble Lord, Lord Meston, about what happens in circumstances where a sentence is increased under the unduly lenient sentencing scheme. I invite the Government to address that point because clearly it has not been considered in the context of the present drafting of Clauses 3 and 4. For these reasons, I hope the Government will take all these amendments very seriously and I look forward to hearing what the Minister has to say in response.
Baroness Levitt (Lab)
My Lords, I start by repeating what I said in the debate about an earlier group. A prohibited steps order is not intended to be an additional punishment; rather, it is a tool devised to protect children. The aim of keeping the child safe and doing what is best for them is the central factor in every case. As I have already said, these powers are not intended to replicate, far less replace, the powers of the family court. Crown Court judges are simply not trained to make decisions about children, and they do not have the time to do so. The point has been made most powerfully by both the noble Lord, Lord Meston, and the noble and learned Lord, Lord Thomas of Cwmgiedd. To ask the Crown Court to replicate the procedures of the family court could lead only to more time being needed to consider every case. As I have now said on at least three occasions today, the one thing the Crown Courts do not need is for cases to take longer.
Baroness Brinton (LD)
Jade’s law was brought in specifically to prevent victims having to immediately go to the family courts. Why have things changed since that principle emerged in the Victims and Prisoners Act?
Baroness Levitt (Lab)
As far as the Jade’s law situation is concerned, it remains the case that it will be dealt with automatically.
Baroness Brinton (LD)
If the principle stands, why is that not also true when an offender has committed a sexual offence of a certain bar?
Baroness Levitt (Lab)
We might be slightly at cross-purposes here. The question is whether the Crown Courts have the ability to consider what is in the best interests of the child rather than automatically making the order when the threshold is reached. That is the difference. As I say, the point has been made most powerfully by the noble Lord, Lord Meston, and by the noble and learned Lord, Lord Thomas. The Crown Court is simply not equipped to go that extra mile of starting to look at things like reports from experts as to what is in the best interests of the child.
I turn to Amendments 18, 20, 24, 30, 31 and 32 in the names of the noble and learned Lord, Lord Keen of Elie, and the noble Lord, Lord Sandhurst. The aim of these is to ensure that a prohibited steps order made under Clauses 3 or 4 would cease to have an effect if the offender was acquitted on appeal. I repeat what I have said. This is not a punishment; it is designed to protect the child. The measures require that, following an acquittal, the relevant local authority must, in very short order, bring an application before the family court to consider whether the prohibited steps order should be upheld, varied or discharged. The noble and learned Lord, Lord Keen, mentioned an innocent parent. This is not about the rights of parents; it is about the rights of children and protecting them. It is not a punishment and therefore it is not something that should be automatically swept away on acquittal.
We recognise the need for a quick resolution in these situations, which is why both clauses state that the application must be made by the local authority within 30 days of the acquittal. This process brings the consideration of the child’s best interests and their potentially very complex family dynamics to the correct forum, which is the family court. It will mean that in every case a judge will undertake a review of all the circumstances, including whether the original prohibited steps order has already been varied by the family court while the appeal was under consideration, or whether other related orders are in place, before deciding what should happen in the best interests of the child. The family court is the right place for this to happen because that puts the interests of the child front and centre, where they should be.
I turn to Amendments 17, 21, 23, 26 and 29 in the names of the noble Lords, Lord Murray of Blidworth and Lord Meston. I think we can all agree that it is vital to have clear processes for identifying the offender’s children, notifying other parental responsibility holders of a prohibited steps order, and making the victims of a rape aware when the court has made an automatic order, but the Government’s view is that primary legislation is not the best way of doing this. These matters are better suited to being addressed in guidance, where we can work closely with those responsible for delivering it to ensure that we have a process that works in practice. We do not want a system that ties practitioners to an approach that cannot evolve with their own processes and where every time we want to make a change we have to come back and amend the primary legislation.
By way of example, we are not using primary legislation to prescribe the processes as we are working to implement Jade’s law. Instead, work is taking place across government—I ran through some of the things that we are doing earlier in relation to the previous debate—and with partners to develop a process that is clear and practical and that delivers the spirit of the aims of the amendment. In the case of these provisions, we will ensure that all relevant parties, including all other parental responsibility holders, are kept informed at each stage. We will take lessons from Jade’s law when this is implemented and, where possible, work with our partners to apply the same processes here. This will allow for consistency across all legislation in this space, rather than multiple processes for the same aim, which could lead to confusion and inconsistency in application. I warmly invite your Lordships to work with the Government to make sure that we get this right. I am more than happy to meet any of your Lordships who would like to discuss those matters with me, both in my capacity as Lords Minister and as Minister responsible for family justice policy.
In relation to identifying the children of offenders, this Government have separately committed to developing a mechanism to identify children who are affected by parental imprisonment to make it easier to provide support to them. I can assure your Lordships that the Ministry of Justice is working closely with the Department for Education to determine how we can best identify all children affected and ensure that they get support to enable them to thrive, but to legislate only for children in the scope of this measure risks distracting from the broader work intended to support all children.
Lord Murray of Blidworth (Con)
My Lords, I thank the noble Lords who have spoken in the debate. I am particularly grateful for the comments about Amendments 16 and 28 from the noble Lord, Lord Meston, the noble and learned Lord, Lord Thomas, and the noble Baroness, Lady Brinton.
Of course, I hear the criticisms of the amendments that were levelled by the JCHR and indeed the Minister; they are points with great merit, and I cannot say that that is not the case. However, there are two points that go some way to addressing the criticism. The first is that of course the court will have some reports on the offender, and it is conceivable, in the very rare cases where it may be necessary to consider the best interests of the child, that reports may be provided. The second is that, according to the answer provided by Minister’s colleague in the Commons in her letter to the JCHR, it is already rolled into the interests of justice test, which is a slightly different complexion put on the point to that given to us this evening by the Minister at the Dispatch Box—and, frankly, the answer just given by the Minister was rather more credible and coherent.
For those reasons, I have much to think about in relation to my amendments. I am grateful to everyone who contributed. In relation to the other amendments in the group, this has been a useful tour of the technicalities of Clause 3. The Minister kindly indicated that she would meet me to discuss it, perhaps with other noble Lords who are interested. I therefore beg leave to withdraw my amendment.
Lord Sandhurst
“Restricting parental responsibility of offenders convicted of child crueltyAfter section 10G of the Children Act 1989 (review of orders made under section 10E or following an application under section 10F) (inserted by section 4), insert—“10H Duty to make prohibited steps order where serious child cruelty is committed(1) This section applies where—(a) the Crown Court sentences a person (“the offender”) for an offence listed in subsection 10 for a term of imprisonment of 2 years or more, and (b) the offender has parental responsibility for at least one child.(2) The Crown Court must make a prohibited steps order with respect to each child for whom the offender has parental responsibility.(3) The order must—(a) specify that no step of any kind which could be taken by a parent in meeting their parental responsibility for a child may be taken by the offender with respect to the child without the consent of the High Court or the family court, and(b) be made to have effect until the order is varied or discharged by the High Court or the family court.(4) But the Crown Court must not make a prohibited steps order under this section if—(a) making the order is prohibited by section 29(3) of the Adoption and Children Act 2002,(b) a prohibited steps order is already in force that meets the requirements in subsection (3), or(c) it appears to the Crown Court that it would not be in the interests of justice to do so.(5) A prohibited steps order made under this section ceases to have effect if the offender is acquitted of the offence on appeal(6) Sections 1, 7 and 11 do not apply where the Crown Court proceeds under this section.(7) A prohibited steps order made under this section is to be treated for the purposes of section 31F(6) of the Matrimonial and Family Proceedings Act 1984 (proceedings and decisions) as if it were made by the family court.(8) The Crown Court does not have jurisdiction to entertain any proceedings in connection with the enforcement of a prohibited steps order made under this section.(9) A reference in this Act to an order under this section includes, so far as the context permits, an order varying or discharging it.(10) The relevant offences for subsection (1) are —(a) causing or allowing the death of a child or vulnerable adult, or allowing them to suffer serious harm (section 5 of the Domestic Violence, Crime and Victims Act 2004);(b) child cruelty, neglect and violence (section 1 of the Children and Young Persons Act 1933);(c) infanticide (section 1 of the Infanticide Act 1938);(d) exposing children whereby life is endangered (section 27 of the Offences Against the Person Act 1861);(e) an offence under sections 4, 18, 20, 21, 22, 23 or 47 of the Offences Against the Person Act 1860, if the victim is under the age of 16;(f) an offence under any of the following provisions of the Female Genital Mutilation Act 2003—(i) female genital mutilation (section 1);(ii) assisting a girl to mutilate her own genitalia (section 2);(iii) assisting a non-UK person to mutilate overseas a girl's genitalia (section 3);(g) cruelty to children (section 1 of the Children and Young Persons Act 1933).””Member's explanatory statement
This new clause would apply similar provisions, including prohibited steps orders, from Clause 3 to certain offenders of child cruelty.
Lord Sandhurst (Con)
My Lords, Amendment 35, standing in both my name and that of my noble and learned friend Lord Keen of Elie, would insert a new clause into the Bill to extend the safeguarding framework in Clause 3 beyond serious sexual offending so that it also applied to those convicted of the most serious child cruelty offences. In effect, it would mirror Clause 3.
Before I address the amendment in detail, I want to place on record my thanks to Helen Grant, Member of Parliament, for her tireless work on this issue. Over a number of years and across several Bills, she has consistently drawn Parliament’s attention to a clear and troubling gap in our safeguarding framework—that is, the absence of a coherent, systematic response to the most serious forms of child cruelty. Her campaigns for a child cruelty register and her persistence in ensuring that these issues remain firmly on the parliamentary agenda are no doubt something that all noble Lords can both respect and support.
Clause 3 introduces an important and welcome provision for the protection of children. The logic is compelling: where conduct is so grave that it demonstrates a fundamental incompatibility with the exercise of parental responsibility, there should be an automatic safeguarding mechanism. Amendment 35 asks a simple but profound question: why should that logic apply only to sexual offences and not to other, most serious forms of child cruelty?
The new clause proposed by the amendment would mirror the architecture of Clause 3 in many ways. It would introduce a duty on the Crown Court to make a prohibited steps order where an offender with parental responsibility was convicted and sentenced for a defined list of serious child cruelty offences. The threshold for such offences would be a custodial sentence of two years or more. We suggest that that is an appropriate balance between protection and practicability.
These offences have been carefully selected and reflect those on Helen Grant’s proposed child cruelty register, for which the Government have previously expressed support. They embrace serious crimes such as causing or allowing the death or serious harm of a child, child cruelty and neglect, infanticide, certain offences under the Offences Against the Person Act where the victim is a child, and offences relating to female genital mutilation, FGM. During the Crime and Policing Bill, the noble Baroness said,
“Ministers will continue to pursue this issue with vigour”.—[Official Report, 20/1/26; col. 250.].
The offences set out in this amendment strike at the very heart of a child’s safety and well-being. It is only right that a prohibited steps order be imposed.
If the Government truly believe in acting to prevent child cruelty, then to reject this amendment would be to defend an inconsistency in the current framework which we say is difficult to justify. A parent convicted of a serious sexual offence might automatically be prevented from exercising parental responsibility, while a parent convicted of causing severe physical harm or life-threatening neglect may not be. From the child’s perspective, that distinction is artificial. The harm is real, the risk is real and the need for safeguarding is just as acute. This amendment does not undermine family life unnecessarily. It does not sever parental responsibility permanently. It simply ensures that in the most serious cases, no steps may be taken by the offender without the oversight and consent of the family courts. They are best placed to make decisions concerning welfare and long-term outcomes. The amendment would bring coherence to the Bill and align it with the broader safeguarding principles that Parliament has repeatedly endorsed.
This amendment is motivated by a simple proposition. Children who have suffered the most serious forms of cruelty deserve the same automatic safeguarding protections as those who have suffered serious sexual abuse. I commend this amendment to the Committee and urge the Government to engage constructively with it, in the same spirit in which Clause 3 itself was conceived. I look forward to the Minister’s response.
Baroness Levitt (Lab)
My Lords, the automatic restriction of a person’s parental responsibility is a novel change to the law and must be done in a responsible and proportionate manner. The Government want to understand how these new measures operate in practice before we consider expanding the scope to other offences. We will carefully monitor how the provision operates once it is implemented and, as part of that implementation, officials will develop a system to help us understand the impact the measures are having, how the measures work in practice and how we can make improvements. For cases not in scope of the measure, whether that is because they fall outside the four-year threshold that has previously been debated or because they involve different crimes such as child cruelty, there are existing routes available in the family courts to restrict the exercise of parental responsibility. It is our evaluation that it is right that children are protected in that way while we evaluate the effect of the measures in the Bill. For these reasons I invite the noble Lord, Lord Sandhurst, to withdraw his amendment.
Lord Sandhurst (Con)
My Lords, I find that an interesting reply. No reasons are given other than that this is novel. The provisions in Clause 3 are themselves novel, and all we ask is that where a serious offence of cruelty has been committed in respect of a child, that should be sufficient reason to adopt the same approach as that taken with sexual assault. What is the difference in practice for the child between being sexually assaulted and suffering cruelty? Having said that, we hear what is said and will engage with the Minister between now and Report, but we will wish to consider the position on Report.
Lord Keen of Elie
“(d) the National Crime Agency.”Member's explanatory statement
This amendment adds the National Crime Agency to the list of relevant bodies.
Lord Keen of Elie (Con)
My Lords, I am grateful to all noble Lords who have tabled amendments in this group which concern the operation of Clauses 6 and 7 and the scope and operation of the victim contact scheme. I turn first to Amendment 42 in the name of the noble Baroness, Lady Brinton. I recognise the intention behind this amendment and the principle that underpins it: that victims whose close family members have been murdered, killed unlawfully or subjected to infanticide abroad should not find themselves falling between the cracks of the victims’ code simply because the offence occurred outside the United Kingdom. There is a strong case for ensuring that any victim should receive clear information and appropriate support on how to engage with the criminal justice system. The amendment seeks to give effect to that principle by requiring an appendix to the victims’ code setting out how it applies in such circumstances.
That said, it is also right to acknowledge that this amendment raises practical and operational questions that would need careful consideration. These include questions about jurisdiction, the extent to which criminal justice processes are engaged domestically, and how responsibilities would be allocated between domestic agencies and those overseas. I therefore look to the Minister to address how the Government would envisage this operating in practice while recognising and engaging with the important principle that the amendment seeks to advance.
Amendments 47A and 47B, tabled by the noble Lord, Lord Russell, extend the definition of “victim” to include those who have experienced persistent antisocial behaviour meeting the statutory threshold for an antisocial behaviour case review. They also create a victim identifier linked to compliance with the victims’ code across criminal justice agencies. Both proposals are ideas that I am sure will instigate interesting debate; I look forward to hearing the noble Lord expand on them, and the Government’s response.
Amendments 56 and 57 tabled by the noble Lord, Lord Ponsonby—which may or may not be spoken to—concern transparency and accountability in decisions taken by hospital managers not to disclose information requested under Sections 44F or 44K. Clearly, if hospital managers are to be entrusted with the discretion to withhold information in cases that may directly affect victim safety, it is entirely reasonable that there should be clear written reasons for such decisions and a meaningful route to appeal. Transparency in decision-making is essential, not only for victims but for other parties, such as the Probation Service, which are tasked with managing risks.
I turn to Amendments 36 and 37 in my name. Amendment 36 is a technical amendment that adds the National Crime Agency to the list of relevant bodies to which Clause 6 does not apply. Given the National Crime Agency’s distinct operational role and intelligence-handling functions, it may be appropriate that it be expressly included in that provision. I hope the Government will see this amendment as a sensible clarification rather than as a point of contention.
Amendment 37 would require the Secretary of State to extend the victim contact scheme to certain categories of victim who are currently excluded from it—victims of offenders sentenced to less than 12 months for violent and sexual offences; victims of coercive or controlling behaviour, stalking or harassment; and bereaved families in cases of manslaughter or death by dangerous driving. It would also require information to be communicated in a timely manner and for annual data to be published on the scheme’s uptake and accessibility.
The importance of this amendment has only been heightened by recent legislative developments. The Sentencing Bill, which has now passed, represented a marked shift in sentencing policy, particularly through the automatic and blanket presumption against short custodial sentences, regardless of offence type. During the passage of that legislation, particularly in debate in this House, a number of noble Lords repeatedly raised the consequences for victims. Although the Government may respond by saying that in exceptional circumstances this presumption may be overturned, the reality is rather clearer. An increasing number of offenders convicted of violent and sexual offences will now serve their sentences in the community, rather than in custody.
From the victim’s perspective, that is not an abstract policy choice. It has immediate and practical consequences for their perception of justice being served, for their sense of safety, for their ability to plan their lives and for their need to receive appropriate information. Under the current framework, many of these victims are excluded from the victim contact scheme because the custodial threshold is not met. That is now, I suggest, a glaring inconsistency in the light of the Government’s Sentencing Act. If anything, victims whose offenders are serving sentences in the community have a greater need for timely, accurate and trauma-informed information, not a lesser one. Further, without timeliness the scheme risks becoming meaningless. Information provided late is often information too late to be of use, and, without transparencies, such as through the publication of annual data on uptake and accessibility, there can be no meaningful accountability for offenders or for the Government.
We now live in a sentencing landscape that places a far greater reliance on community supervision. The Government have said that they expect to more or less double the number of people being tagged rather than incarcerated. The need for transparency and accurate data has never been more pressing. Amendment 37 insists that, where the state chooses to sentence offenders in the community, it must accept the corresponding responsibility to support and protect victims properly. In the absence of custody, robust victim engagement is really not an option; it is essential. I therefore urge the Government to engage seriously with this amendment and, if they are minded to resist it, explain how victims are to be adequately protected in a system that is going to leave an increasing number of offenders in the community. I beg to move.
Lord Russell of Liverpool (CB)
My Lords, I will speak to Amendment 42, in the name of the noble Baroness, Lady Brinton, supported by the noble Baroness, Lady Finlay; to the two amendments in my name, Amendments 47A and 47B—I am grateful to the noble Baroness, Lady Brinton, for adding her name to them; and to Amendments 55, 56 and 57, on which the noble Lord, Lord Ponsonby, may speak to us by some supernatural means. I am not quite sure, but the noble Baroness, Lady Brinton, and I will try to cover it.
I point out that what all these amendments have in common is that they have been laid with the active engagement and support of the Victims’ Commissioner, Claire Waxman. The Minister mentioned that she knows and has a high regard for her. Rather than going on at great length about each amendment, although I am sure that your Lordships are dying to hear about them, I suspect that it would be better to have follow-up meetings involving Claire Waxman to go into the detail as to why she feels, and we feel, that these amendments are important enough to raise in Committee.
On bereaved victims of murder abroad, as in Amendment 42, we covered this ground in previous legislation when we attempted to get it into a Bill. My noble friend Lady Finlay will be able to go into much more detail about this but, in essence, we are dealing with a slight anomaly in the way that victims are treated. On average per annum, between 80 and 90 individuals who are UK citizens are murdered while they are abroad. At the moment, the experience of their families when those unfortunate incidents happen ranges from quite good to absolutely appalling. That is because there is no consistency in the way they are treated.
The Government have made attempts to get their house in order on what happens within the United Kingdom’s jurisdiction. Where we seem to have an issue is in getting the FCDO to apply a form of guidance, and above all training, across its key consulates in the areas where these incidents take place to ensure that those consulates are properly equipped, if and when such a tragedy appears, to deal with it effectively and consistently. The experience from the victims whose loved ones have been murdered abroad is that, in some cases, the consulates are absolutely brilliant and go out of their way to be helpful, while in other instances the victim truly is left entirely on their own. In particular, if this has happened when the partner of the person who has been murdered is abroad, they may find no help whatever and not be familiar with the language of that country. You can imagine the complexity and agony of trying to deal with all of that, on top of the shock of having had somebody very close to you murdered. However, my noble friend will go into that in more detail.
What Amendments 47A and 47B have in common is that for certain victims of antisocial behaviour, when that behaviour really is persistent—it often conforms to an escalating pattern—and has a deep effect on the victim, there is not consistency at the moment in the way that is dealt with. Amendment 47A tries to ensure that the authorities are more effective in identifying that pattern of behaviour and are able to join the dots, put them together and recognise that the behaviour has triggered a threshold at which proper support and access to victim services should be allowed.
Again, Amendment 47B is about joining up the dots. The way in which antisocial behaviour is dealt with is that it might come to the attention of the police, or it might come to the attention of a local authority or a housing association. There is no consistent way of that information, first, being recorded in a consistent and helpful manner, and, secondly, being communicated across those different boundaries in a way that enables whichever of those three jurisdictions is looking at the pattern of behaviour to pull the evidence together that it needs to understand exactly what has been going on. This is a request for a unique identifier for each victim which would, I hope, be the start of a process to enable that information to be channelled in a more consistent and co-ordinated manner. That would obviously be helpful to the victims, but also extremely helpful to whichever authority is trying to identify just how severe that pattern of antisocial behaviour is, and whether the effect it is having on the subject—the victim—is sufficient for it to trigger comprehensive wraparound support.
Lastly, I will deal with the three amendments that I think the noble Baroness, Lady Brinton, will deal with in more detail. They concern where somebody in one’s family has been murdered by an individual who is identified as mentally disordered and who is then detained because of their mental disorder. The ability of the victims to get access to the sort of information which they can get from the Prison Service and the courts is completely different from what is able to be accessed from the hospital system. Again, some hospitals and hospital managers go out of their way to be understanding and helpful, and try to give the victims whatever succour and information they can. Others refuse point blank. They say that a variety of laws and processes prevent them doing that and that they are not at liberty to do it. All that we and the Victims’ Commissioner are asking is to look at this closely.
Julian Hendy, the founder of an organisation called Hundred Families, is very involved in this; he can give chapter, book and verse. First, we need to establish just how much of a problem this is, perhaps through meetings. Secondly, what are the different ways in which we might do something about it? Thirdly, how complicated is that: does it need to be in primary legislation, or are there other ways of doing it?
Baroness Finlay of Llandaff (CB)
I am most grateful for the way this has been introduced by my noble friend Lord Russell. When the family discover that their relative has been murdered abroad, the problem, as has been said, is that they have no idea what has happened. Unless a service from the Foreign, Commonwealth and Development Office is rapidly responsive, there is a serious danger that evidence will not be maintained, that it will be destroyed or lost, and therefore that any processes to bring someone to justice will be seriously impaired. As written, the victims’ code seems to differentiate between victims murdered on home soil versus murders that could occur anywhere in the world. The added difficulty is that different countries around the world have different police services and processes, and the language or dialect in different areas may create difficulties.
There are two aspects to this: there is the part that occurs in this country, which is where the family may be contacting the FCDO. I was glad to see that the information on the website had been recently updated. It reads as if everything will happen smoothly but, unfortunately, that is a very rose-tinted view of reality. Some parts have not been updated for a few years. I wonder whether one of the problems lies out there with our own staff in all these different countries. They may never have experienced managing a death before, and suddenly they find they are dealing with an incredibly difficult situation with all kinds of blocks because of the politics of wherever they are.
In terms of linking between here and our staff around the world, it would seem important that there is always one designated person who has responsibility for all aspects of deaths or injuries that could occur in that country, and that this is their designation from day one of their placement in that country. They would know the different dialects, the different police systems, the different ways of maintaining evidence. This would require a fair degree of forensic training; it cannot just be written in guidelines or in a handbook. It means that people need to be prepared ahead of time in order to cope with the situation. It may well be that the families—who are completely devastated and find themselves in a terrifying and unknown situation—are at least talking to somebody with some competencies regarding that country and how its judicial systems work. Sadly, the judicial standards that we expect here are not applicable everywhere around the world. Police services are not always as well organised as ours are. It can be extremely difficult to get the right people in the right place at the right time.
It is also important that whoever has that function holds a certain degree of responsibility to make sure that evidence is not inadvertently lost and destroyed. Until you have learned about evidence that should be kept, you may not realise how important some things are: it is not only aspects of clothing and the body. It might be any of the person’s personal effects; it might involve taking photographs before anything is moved in any way. Our own staff need to be equipped with those skills. I hope from this debate that we might see a link between the Ministry of Justice, which is obviously central to the Bill, and the Foreign, Commonwealth and Development Office, and the ability for them to ensure that staff have training wherever they are, including forensic understanding. This could include junior members of staff, as long as they are fully trained.
Baroness Brinton (LD)
My Lords, I tabled Amendment 42 in this group to ensure that certain parts of the victims’ code apply to victims whose close relative was the victim of murder, manslaughter or infanticide outside the UK. I am very grateful to the noble Lord, Lord Russell, and the noble Baroness, Lady Finlay, for supporting the amendment, and for going into some detail. I will endeavour not to repeat what they have said.
I am grateful for the meeting with the Minister last week, during which she mentioned the new guidance that has been recently updated. It is a good document, but it gives the victims no formal rights at all and relies on two different people—the FCDO case manager and the Homicide Service officer, provided by the charity Victim Support—to help them navigate the system. I am sure that this guidance will help improve the service from its previous iteration, but the experience of families who have a loved one killed abroad is that it can be inconsistent. Some victims also receive fragmented, delayed updates about their case, and they often have to chase information themselves, not just with Victim Support or the FCDO but within the country.
Support from the Homicide Service is currently discretionary. This can leave families without dedicated help after the trauma if there are no resources. Having it in the victims’ code will ensure certainty for victims in receiving a service, despite the many differences and difficulties of dealing with the complex arrangements abroad. It is also clear from the guidance that only a certain level of financial help is available to victims from Homicide Service caseworkers. Finally, despite what is written in the guidance, many families have to find and pay for translation services themselves, and there is a risk of inconsistency in service provision. Having it in the victims’ code would ensure that the onus is no longer placed on the victim to get documents translated. This would also give families parity of support with foreign nationals who are victims in the UK, or with UK nationals whose first language is not English.
Turning to the other amendments, we on these Benches support Amendment 37, on the extension of the victim contact scheme, tabled by the noble and learned Lord, Lord Keen of Elie. This will probably be no surprise to him, given that it was tabled by Jess Brown-Fuller MP, my honourable friend in the House of Commons. I did write to the noble and learned Lord after it was tabled, asking him to withdraw the amendment, as we on these Benches had decided that we wanted to re-table it here in the House of Lords, as per our convention. The PBO told us recently that they received no such request, but that does not diminish our support for it.
I also signed Amendments 47A and 47B, tabled by the noble Lord, Lord Russell of Liverpool. The first seeks to ensure that victims of persistent anti-social behaviour have access to victim support services provided by local police and crime commissioners. These services are only available to victims as defined by the victims’ code of practice. Persistent anti-social behaviour is not just tiresome and irritating: it can have a traumatising psychological effect on victims. I am particularly reminded of the late Baroness Newlove talking about the local youths who made her and her family’s lives an absolute misery before they brutally murdered her husband. If the police cannot stop it, then surely victims should be able to get support locally. Amendment 47B proposes that each victim have a unique identifier, to be used with all the different agencies involved in their experience. Given the debate we have had today on many of the amendments, this identifier might well solve some of the problems alluded to about different parts of the system and different bodies not understanding or even knowing what was going on.
At the moment, the experience of sharing data between relevant agencies can be woeful, and this number would strengthen the system. It would mean risk assessments can work better, as well as monitoring compliance with the victims’ code and improving communication and collaboration across agencies.
I have also signed Amendments 55, 56 and 57 from the noble Lord, Lord Ponsonby, which tackle the problem that the noble Lord, Lord Russell, referred to earlier, of how hospitals ensure that they balance the needs of the victim with those of a patient who has murdered a family member of the victim. At the moment, unfortunately, because of the code of ethics that medical practitioners are bound by, the balance is in the patient is their absolute priority, which can mean that victims of the most serious crimes cannot know where the offenders, the patients, are, or if there are any changes in the care that they might need to know about, which might include such things as short-term home release. This is much less than the information that is available when an offender is in prison, and the process for the victim to ask for information involves asking a victim liaison officer at the hospital, who will ask for the information from the clinicians. That is two Chinese walls between the victim and the person providing the information. Because, once behind hospital walls, there is no evidence that the medics balance or give due regard to the safety and well-being of victims, and this is very retraumatising for the victims.
I also wonder sometimes whether medical practitioners do not get to see all the relevant data about the actual act and the consequences for the victim. From these Benches, we support proposals that would ensure that the medical professionals must take a balanced approach when deciding whether to provide information to the victim and must write to the victim to explain when they have decided not to take that balanced view. There should also be an appeal mechanism. These amendments would ensure that right 11 of the victims’ code is delivered for victims, giving them the same right of requesting that information from prisons and from other bodies where a patient might be held.
Lord Stevens of Kirkwhelpington (CB)
My Lords, in general I support these amendments, particularly those put forward by my noble friend Lady Finlay. Having been in charge of some of these investigations over a long period of time, take it from me that they are very difficult, indeed nearly impossible, when the victim dies outside the jurisdiction. In a lot of cases, in the old days, talking to the DPP, some of us went out there personally to actually do the investigations. It was difficult in a way that is not necessary, and I think that what has been outlined by my noble friend is absolutely common sense. In the old days, if I might refer to them, things were a bit simpler: we dealt with the police, who were sometimes not quite up to our standards, and we tried to form some relationship. However, things have got more difficult in terms of the technical side of the law, so I make a kind of brief supplication, basically, as a practitioner over a long period of time: I really think that some of these amendments would have a massive effect on securing justice for victims, particularly in those places where we do not have any jurisdiction whatever.
Baroness Hamwee (LD)
My Lords, the noble Lord has just used the phrase “common sense”, and I think that that is what is expected by people who are affected, who know that they could look to consular services for help if they have lost a passport, but not in such a difficult situation as this. I simply say—and this is not addressed to the noble Baroness but possibly to some of her colleagues—that over the period that we have discussed this issue, there has almost been a sense of, “That’s the Foreign Office, it’s not us”. If we could get this into the victims’ code, it might mean a duty on the FCDO to be prepared to be more effective, and actually to be more effective.
Baroness Levitt (Lab)
My Lords, Amendment 36 in the names of the noble and learned Lord, Lord Keen of Elie, and the noble Lord, Lord Sandhurst, seeks to add agreements entered into by the National Crime Agency, the NCA, to the list of agreements in new subsection (7) that are exempt from the measure. Non-disclosure agreements, or NDAs, should not be used to silence victims or cover up crime: I think we can all agree on that. New subsections (7) and (8) of Clause 6 provide that the provision will not apply to a narrow cohort of specified agreements, in the interests of national security.
Baroness Brinton (LD)
I am grateful to the Minister for everything she said. Early on, she said that the problem is that the victims’ code is not always applicable abroad. Can she comment on proposed new subsection (2) in the amendment, which talks specifically about the Secretary of State by regulation issuing an appendix to the victims’ code, setting out how the code applies to these victims? It is understood, from our side, that it would be different.
Baroness Levitt (Lab)
I am grateful to the noble Baroness for raising this point. Our current position is that we do not believe that that is necessary, but I am happy to meet her and get her to try to persuade me why I am wrong and she is right—there is my challenge to the noble Baronesses, Lady Brinton and Lady Finlay.
Lord Russell of Liverpool (CB)
The FCDO has a duty of care and a responsibility for UK citizens when they are in whichever country. It does not seem too bizarre or extreme to hope that it would accept a degree of responsibility for the very small number of unfortunate victims who, for whatever reason, are unlawfully killed in the course of a year. For the FCDO to accept that that is part of its responsibility—a very small part, albeit an important one—and to prepare itself thoroughly enough to be able to fulfil that duty in a professional, proper and sensitive way in the unhappy event that it is required does not seem too much to ask.
Baroness Levitt (Lab)
The noble Lord, Lord Russell, puts it very persuasively and it is extremely tempting, particularly given that I do not speak for the FCDO, to say that it sounds utterly reasonable. However, I am sure he will understand why I cannot give that kind of commitment from the Dispatch Box, but I can commit to meeting and discussing this further.
Baroness Finlay of Llandaff (CB)
Forgive me for interrupting again on this issue. Can the Minister undertake to discuss with the FCDO the concept that each embassy or consulate has one named lead person for when it experiences managing one of these tragic situations, and that it is handed over to another named person when they leave? They could also come together as a group to provide support for, and learn from, each other, and compare where particular difficulties have occurred so that, over the years, the training can improve for each of these people. The worry at the moment is that these cases are so unusual in some places that it is a once-in-a-lifetime experience for some of the staff.
Baroness Levitt (Lab)
Again, the noble Baroness puts it very persuasively and, listening to her now, it all seems to make total sense. If, as a Government, we are committed to supporting victims of crime and putting them front and centre, that does not stop at our borders. However, I do not think that I can give an answer today and it would not be right to do so. I will commit to meeting the noble Baroness and seeing whether I can find out from the FCDO at least what its approach would be to such a suggestion. If she would put it in writing to me I could then pass it on so that we can try to take matters further.
Amendment 47A, in the names of the noble Lord, Lord Russell, and the noble Baroness, Lady Brinton, seeks to add victims of persistent but non-criminal anti-social behaviour to the definition of a victim, as set out in Section 1 of the Victims and Prisoners Act 2024. The Government agree that anti-social behaviour is a blight on our communities and its impact should never be underestimated. We have committed to provide better support and information to victims of anti-social behaviour and have taken significant steps to do so. This includes the measures in this Bill that will strengthen the Victims’ Commissioner’s powers to hold the agencies that support anti-social behaviour victims to account.
Where anti-social behaviour amounts to criminal conduct, such as criminal damage, victims will benefit from the rights and entitlements within the victims’ code. However, expanding the definition of a victim to bring those affected by non-criminal anti-social behaviour within the code would, in our view, not be appropriate, as it is not an effective or efficient response to this kind of the behaviour. For example, in our view, it would be neither appropriate nor necessary for a victim of a neighbour who is playing loud music on one occasion to be brought within the scope of the victims’ code. Doing so could create unrealistic expectations and divert attention and resources from those experiencing serious criminal harm, such as victims of child sexual abuse.
In our view, there are better routes available to help these victims, including the anti-social behaviour case review, which gives the victims of persistent behaviour the right to request a multi-agency review to secure a resolution. In the proposals for the new victims’ code, on which we are currently consulting, we have clarified what victims of criminal anti-social behaviour can expect from the code and provided information about the case review process. I would welcome your Lordships’ responses to the consultation to outline in detail what further provision would be required for these victims.
On Amendment 47B, in the names of the noble Lord, Lord Russell, my noble friend Lord Bach and the noble Baroness, Lady Brinton, I begin by acknowledging the problems brought by our current inability reliably to identify the same victim or witness across the criminal justice system. We accept that this results in duplication of records, slows the flow of information and leads to inconsistent data across the agencies. In addition, this fragmentation places a significant administrative burden on staff, who must reconcile records manually and then chase the missing information. However, perhaps most importantly, it means that victims and witnesses are sometimes provided with conflicting information, which can cause confusion at best and serious distress at worst.
The Government are already working to address these issues through the cross-criminal justice system data improvement programme, jointly led by the Ministry of Justice and Home Office. This programme aims to strengthen data sharing across the criminal justice system and is actively exploring how individuals, including victims, can be more reliably recognised across agencies. We are clear that improvements to data sharing must be underpinned by robust safeguards to ensure personal data is handled lawfully, securely and proportionately, with a strong focus on minimising unnecessary circulation of sensitive information, which I know is a key concern of the noble Baroness, Lady Brinton.
The Government are open to considering legislative options to improve data sharing, data quality and the use of unique identifiers where that is shown to be necessary and proportionate. However, introducing a statutory requirement at this stage, ahead of the completion of the work of the programme, could unintentionally constrain future design and implementation choices, before we are confident it would deliver the intended benefits for victims and the wider criminal justice system. For these reasons, the Government do not believe that primary legislation at this stage is the appropriate mechanism.
Baroness Brinton (LD)
For well over a decade, since the passage of the Children and Families Act 2014, we have been discussing as a House a unique identifying number for children who may end up either in the health system or care system as well as schools. It has taken well over a decade—they are just about to use the NHS number as part of the Children’s Wellbeing and Schools Bill. I urge the Minister to have a look at this again; otherwise, we will be here for another 10 years, arguing the same point.
Baroness Levitt (Lab)
This Government have not been in power over the whole of the last of the decade, and we are doing our best to look at it. I will certainly look at it and discuss it with her. We are simply saying that, at this stage, we do not think primary legislation is the right way of dealing with it.
Finally, I turn to Amendments 55, 56 and 57, in the names of my noble friend Lord Ponsonby, who is not in his place, the noble Baroness, Lady Brinton, and the noble Lord, Lord Russell. Before I do, let me say that I recently had the privilege of meeting with Emma Webber and with Julian Hendy of Hundred Families. They explained very clearly to me the issues as they see them, and it was a very moving experience. I pay tribute to their strength and honour the memories of those they have lost. Their experiences, along with the experiences of all victims of crime, must continue to guide us.
Part of the rationale for providing information to victims is to help them to feel safe and so they can plan for an offender’s eventual release or discharge. That is why the legislation requires that hospital managers provide victims with specified information where appropriate, regardless of any assessment by a hospital manager of the victim’s safety and well-being, because we acknowledge that the hospital manager’s assessment could well be different from the victim’s own assessment.
Where hospital managers receive a request for information from an eligible victim outwith the specified list within the Bill, they will consider whether it is necessary and proportionate to provid it, and this assessment can of course include considering the risk to the victim. Where there are specific concerns about a victim’s safety, there are other, more appropriate processes to be followed. It is important to note that this is not the primary purpose of the victim contact scheme.
Where a decision is made that it is not appropriate to provide some information, reasons can and should be provided wherever possible. However, these should reflect the victim’s communication preferences, and considerations about this would, in our view, be most appropriately set out in operational guidance, which would also provide the necessary flexibility to adjust requirements as we monitor practice.
We agree that victims should have a route for some recourse where information is not provided. There are existing complaint routes for all cohorts, and the Government consider that a more effective way of going about this would be to make sure hospital managers understand and fulfil their obligations to victims at the outset, rather than introducing additional bureaucracy. My officials are working closely with the Department of Health and Social Care to consider routes by which to support hospital managers, including whether a joint departmental protocol, or via planned updates to the Mental Health Act code of practice—statutory guidance under the Mental Health Act 1983—might provide an appropriate vehicle.
In relation to all the amendments in this group and many of the others, we are listening and we want to get it right. We will continue to work with your Lordships and with victims’ groups, but for now I invite the noble and learned Lord to withdraw his amendment.
Lord Keen of Elie (Con)
My Lords, I am grateful to noble Lords who have contributed to this wide-ranging and thoughtful debate on the operation of the victim contact scheme and the wider support network for victims. The debate has demonstrated broad consensus on the principle that victims’ rights and access to information must keep pace with changes in sentencing policy and criminal justice practice. The question is not whether victim engagement matters but whether our current structures are fit for purpose in the systems we now operate.
Several amendments in the group had common concerns: gaps in coverage within the victims’ code and the victim contact scheme; lack of transparency, consistency and accountability in how information is provided; the risk that victims fall through the cracks; and the technical thresholds or institutional boundaries that exist. Taken together, these amendments seek to ensure that victim support is timely, trauma-informed, consistent and capable of scrutiny. The amendments also recognise that, among others, where the state chooses to sentence offenders in the community, it assumes a greater, not a lesser, responsibility to support victims. Victim engagement must be strengthened not weakened in a non-custodial sentencing landscape. I therefore urge the Government to consider carefully how victims are to be protected and informed under current policy. In the meantime, I seek leave to withdraw my amendment.