Police, Crime, Sentencing and Courts Bill

Debate between Baroness Williams of Trafford and Lord Marks of Henley-on-Thames

Report stage
Wednesday 12th January 2022 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I shall be brief because we have a lot to get through. I should have preferred Amendments 140E and 104F, the sex-for-rent amendments and the facilitating amendments, to be rather more tightly drawn. I note that the points I made in Committee were taken by the noble Earl, Lord Attlee. However, I have been persuaded by re-reading the speech made in Committee by the noble Baroness, Lady Kennedy of Cradley, and what she said today, with her extensive experience as director of Generation Rent—that there is a serious need for criminal legislation to stop what is a particularly nasty form of predatory behaviour. I also took the points made by the noble Lord, Lord Pannick, on the interpretation of Amendment 140E, implicitly supported by the noble and learned Lord, Lord Hope, so we will support those amendments. We will also of course support the amendment calling for a review of the criminal law relating to exposure offences and spiking offences, for the reasons given by the noble Lord, Lord Ponsonby, and which we supported in Committee.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, as the noble Lord, Lord Ponsonby, explained, these amendments relate to three matters we debated in Committee: namely, whether there should be a bespoke offence to tackle so-called sex for rent and whether the police, prosecutors and courts are doing enough to tackle offences relating to spiking and exposure. If I may, I shall take each issue in turn.

Amendments 104E and 104F are intended to address the so-called sex-for-rent issue, whereby exploitative landlords, and others, require sexual relations in return for housing or accommodation. This is an abhorrent phenomenon, which takes advantage of very vulnerable people, as noble Lords have said, and it has no place in our society.

Under the Sexual Offences Act 2003, there are existing offences which may be used to prosecute this practice, including the Section 52 offence of causing or inciting prostitution for gain and the Section 53 offence of controlling prostitution for gain. Both offences carry a maximum penalty of seven years’ imprisonment. They can capture instances of sex for rent, depending on the circumstances of the individual case.

In 2019, the Crown Prosecution Service amended its guidance on prostitution and exploitation of prostitution to include specific reference to the availability of charges for offences under Sections 52 and 53, where there is evidence to support the existence of sex-for-rent arrangements. In January of last year, the CPS authorised the first charge for sex-for-rent allegations under Section 52. The individual against whom these allegations were made has pleaded guilty to two counts of inciting prostitution for gain. To better protect tenants from rogue landlords convicted of certain criminal offences, banning orders were introduced through the Housing and Planning Act 2016. A banning order prohibits named individuals engaging in letting and property management work. The Government have been clear that housing associations and local authorities should use these orders if needed. Action will be taken against landlords who exploit vulnerable people. This behaviour simply is not tolerated.

I thought I might say something about a victim having to identify as a prostitute for the Section 52 and 53 offences to be used. I must stress that anyone making a report to the police would benefit from the anonymity provisions in the Sexual Offences (Amendment) Act 1992. The Section 52 offence applies when an identified victim has been caused to engage in prostitution or incited to do so, whether the prostitution takes place or not. The Section 53 offence applies whether the victim has, on one or more occasions, provided sexual services to another person in return for financial gain.

Moving on to Amendment 104F, I definitely agree with the noble Lord, Lord Pannick, about the woolly terminology of “arranging an offence”, and the point made by the noble and learned Lord, Lord Hope of Craighead, about “publisher”, but on the amendment itself, the forthcoming online safety Bill will require companies to put in place systems and processes to remove certain types of illegal content as soon as they become aware of it.

I move on now to spiking, the subject of Amendment 114A. This would require the Secretary of State to review

“the prevalence of, and the response of the criminal justice system to, the offence of administering a substance with intent under section 61 of the Sexual Offences Act 2003”.

I share the concerns expressed by the noble Lord about this offence, particularly the recently reported phenomenon of spiking by needles. This is understandably causing considerable anxiety among young people, especially in our university towns and cities, but there is no need to create a statutory obligation on the Government to review the operation of Section 61 as this issue is already very much on the Government’s radar. Indeed, a statutory requirement setting out a specific agenda risks hindering the Government’s ability to respond flexibly to the problem.

Police, Crime, Sentencing and Courts Bill

Debate between Baroness Williams of Trafford and Lord Marks of Henley-on-Thames

Lords Hansard - part two & Committee stage
Wednesday 17th November 2021 Lords Chamber

[Baroness Williams of Trafford (Con)]

I will most certainly do that. So this is offences where the knife is not actually deployed and the person with the individual with a knife in their pocket would not have known that the knife was in their pocket. Without getting myself into further trouble, I would say that the courts would take those facts into consideration—but I will elect to write to noble Lords with as many permutations and combinations as I can possibly think of before Report.

[Lord Marks of Henley-on-Thames (LD)]

I have no wish to get the noble Baroness into more difficulties, but the problem arises because she said that the court would have to consider the relevance of the carriage of the knife to the offence, and that is quite simply wrong. I would be very grateful if the noble Baroness, before any examples are produced, would concede that, and then discuss whether these amendments are not very important in light of the answer. There is the weakness—the lack of the nexus between the carriage of the knife and any offence that is proved.

[Baroness Williams of Trafford (Con)]

I think I need to reflect further on what noble Lords have said. I will try to answer the noble Lord’s question in a letter before we start talking about examples. We are, after all, in Committee, and I am learning, like other noble Lords, as we go along.

Amendments 226, 226A and 226B would remove the provisions that enable a court to issue the SVRO if two or more people commit an offence but not all of them used or were in possession of the weapon—that is slightly going back on what we were discussing. When a knife offence or offensive weapon-related offence is committed, it is not always the case that all the offenders had the weapon in their hands—as the noble Lord, Lord Paddick, pointed out—during the commission of the offence. But if the court is satisfied that a person knew or ought to have known that another person committing the offence had a knife or an offensive weapon during the commission of the offence, and this person committed an offence arising out of the same facts, we think it would be appropriate for an SVRO to be available. Again, I will put the various permutations and combinations to noble Lords in a theoretical way. This would allow SVROs to be made in relation to all the individuals who were involved and were convicted of such an offence, should the court consider an SVRO to be necessary in respect of those individuals.

This provision intends to cover situations such as a robbery or a fight where a weapon was used by one individual, but where other individuals convicted of offences related to the same facts knew, or ought to have known, that a weapon was being used or carried by another person involved in the offence, even if they themselves were not carrying the weapon. This is very similar to the point made by the noble Lord, Lord Paddick, except that that individual was brandishing the weapon.

--- Later in debate ---

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I propose to deal with just one amendment, Amendment 233, which is concerned with the defence of reasonable excuse. I concentrate on that because my noble friend Lord Paddick has covered the ground in this group. But it seems to me—and I agree with what my noble friend and the noble Lord, Lord Coaker, have said—that this group offends against principles of our criminal law and rides roughshod over them, because the overall purpose of the Bill seems to have taken precedence over any degree of thought being given to the detail of what is actually being done.

Amendment 233 in the names of my noble friend Lord Paddick, the noble Lord, Lord Moylan, and the noble Baroness, Lady Meacher, would permit a reasonable excuse defence to an offence committed where an offender subject to an SVRO tells a constable that they are not subject to such an order. The Liberty briefing, for which we are all very grateful, points out that an offender may have committed the proposed offence of telling the police constable falsely that they are not subject to an order even where they honestly and even reasonably believe that the order—the SVRO—is no longer in force, or where they do not understand the question because English is not their first language, or for any other reason.

Looking at the proposed offences under new Section 342G(1), the reasonable excuse defence is presently available only in respect of offences under (a) or (b) of that subsection. The first is if the offender

“fails without reasonable excuse to do anything the offender is required to do by the order.”

The second is where the offender

“does anything the offender is prohibited from doing by the order.”

But there is no reasonable excuse defence available for any of the other three offences. Under (c), I think “notifies the police” means providing to the police,

“in purported compliance with the order, any information which the offender knows to be false”,

while (d) covers denying the order which is the subject of Amendment 233m which I have addressed, and (e) is where the offender

“intentionally obstructs a constable in the exercise of any power conferred by”

the legislation. None of the last three has a reasonable excuse defence available.

In thinking about this proposed section, one is reminded that reasonable excuses may arise in odd and unpredictable ways. Legislation ought to avoid criminalising any behaviour for which the citizen has a reasonable excuse, because criminalising behaviour in these circumstances brings the law into disrepute. If there is no reasonable excuse, the offence is committed and conviction will follow—but if there is a reasonable excuse, there ought to be no conviction.

We have only to remind ourselves that there may be a reasonable excuse for disobeying police officers’ requirements. Tragically, Sarah Everard was persuaded to enter Wayne Couzens’s car, with awful results, because he purported to have the right to require her to do so. We should be open to the view that automatic obedience to the requirements of a police officer is not always sensible, and that offenders, even though subject to SVROs, might well have reasonable excuses for non-compliance with police officers’ requirements.

I suggest that the Minister and her colleagues ought to think about whether reasonable excuse should not be a defence to all these offences. Initially, they might consider that there would not be many cases where a citizen would have a reasonable excuse for non-compliance. But they might also wish to reflect that that does not mean that, in those cases where citizens do have a reasonable excuse, they should be found guilty of a criminal offence. This is an important lacuna in the proposals made here—that reasonable excuse will be no answer to conviction.

[Baroness Williams of Trafford (Con)]

My Lords, as the noble Lord, Lord Paddick, has explained, this group of amendments deals with further aspects of the new serious violence reduction order. Amendments 231A and 231B would remove the requirement for an offender subject to an SVRO to notify the police of their home address; any changes to their home address; the address of any other premises at which the offender regularly resides or stays; or the address of any place they decide to live in for a period of one month or more.

We included notification requirements in the legislation in order to help officers to identify those subject to an order in their area. It is a common feature of other offender management regimes, including in relation to sex and terrorism offenders, so we are not breaking any new ground here. We stated in the draft statutory guidance that the police should use the notification stage to engage with the offender and clarify the effects of an SVRO: that is, to explain to the offender in ordinary language the requirements and effects of an SVRO and what offences may be committed if they breach the order. This, along with an up-to-date description, could be used to assist with future identification when conducting a stop and search. It is therefore important that we keep the notification requirement as currently drafted to ensure that officers are able properly to identify those subject to an order.

Amendment 233 would create a defence so that an offender can tell an officer that they are not subject to an SVRO if they have a reasonable excuse to do so. I do not see any circumstances where it would be reasonable for an offender not to tell an officer that they are subject to an SVRO if they are asked. It may be that the noble Lord wants to cover circumstances where an offender subject to an SVRO has a reasonable excuse for carrying a knife. In such circumstances, it would be for the police, and ultimately the courts, to decide whether the reasonable excuse defence was made out in the event that the offender was arrested and then charged with an offence in relation to the possession of a bladed article or offensive weapon.

Criminal Trials: Intercept Evidence

Debate between Baroness Williams of Trafford and Lord Marks of Henley-on-Thames

Wednesday 9th June 2021 Lords Chamber

[Baroness Williams of Trafford (Con)]

The noble Baroness asks a very interesting question, which I am sure we will have debates on in the months and years to come, about the difference between the two. Fundamentally, there is a huge amount of other evidence that one would need to consider for an intercept warrant that makes it prohibitively costly, and therefore we just do not use it.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, following the question from the noble Baroness, Lady Wheatcroft, in the EncroChat case the Court of Appeal analysed the distinction between intercept evidence where actual transmission has been intercepted and evidence that has been stored and harvested following transmission. That distinction is arcane and inconsistent. Can the Minister explain the difference in principle? Since we agree on the need for a warrant system to authorise the use of intercept evidence, should we not legislate for one consistent requirement for warrants to intercept actual transmission and warrants to harvest intercept evidence post transmission?

[Baroness Williams of Trafford (Con)]

We would need a few hours to have that discussion so, thankfully, given that the Lord Speaker’s direction is to keep my answers brief, I will not go into that. As I have said, there are checks and balances within the criminal justice system, as the noble Lord well knows, that safeguard one route from being used in order to achieve another.

Law Enforcement: Brexit Impacts

Debate between Baroness Williams of Trafford and Lord Marks of Henley-on-Thames

Wednesday 6th January 2021 Lords Chamber

[Baroness Williams of Trafford (Con)]

As the noble Baroness will know, we will not be seeking membership of Europol but the arrangements that we have in place will allow for the UK’s continued effective co-operation with Europol, including rapid exchange of operational information and data for mutual benefit—in particular, in the type of case that the noble Baroness outlined.

[Lord Marks of Henley-on-Thames (LD) [V]]

My Lords, the agreed surrender arrangements that replaced the European arrest warrant include a significant number of grounds for withholding surrender and an overall principle of proportionality. All issues raised by a requested person will have to be litigated in the executing state before a surrender decision can be made. Will the Government undertake an audit of the delays and costs involved in the new system arising from our withdrawing from the clear procedures for European arrest warrants?

[Baroness Williams of Trafford (Con)]

The noble Lord will be pleased to know that some safeguards regarding human rights would be right for the carrying out of justice. However, in terms of speed, we fully anticipate that the arrangements will be as fast and effective as those under the EAW.

European Arrest Warrant, Europol and Eurojust

Debate between Baroness Williams of Trafford and Lord Marks of Henley-on-Thames

Monday 2nd March 2020 Lords Chamber

[Baroness Williams of Trafford]

My Lords, there are areas in which we will attempt to have very similar arrangements to those we have now with the EU. As I said, this will be very similar operationally to the EAW, but with enhanced safeguards.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, further to the question from the noble Lord, Lord Cormack, how is it that we have come to this pass when, time and again, before our departure from the EU, we were promised from those on the Front Bench that we would work towards replicating the arrangements for the European arrest warrant, Europol and Eurojust? We now appear to be negotiating something inferior and different.

[Baroness Williams of Trafford]

My Lords, I would not say it is inferior, but I agree that it is different. The Norway-Iceland arrangements seem to work perfectly well with those enhanced safeguards.