Police, Crime, Sentencing and Courts Bill

Lord Falconer of Thoroton Excerpts

2nd reading
Tuesday 14th September 2021 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

My Lords, I am obliged to the noble Baroness, Lady Williams, for her clear but inevitably incomplete description of the Bill. Her incomplete description of it is not her fault. We support some of the measures in the Bill, in particular those that seek to increase penalties for sexual and violent crime, but the presentation of the Bill in this form is an affront to the rule of law and the role of Parliament: 177 clauses, 20 schedules, 62 new delegated lawmaking powers and amendments to 39 other statutes. Our constitution requires legislation such as this, particularly because it affects the liberty of the subject, to be properly scrutinised by both Houses of Parliament. With a Bill this size, that is well nigh impossible. Introducing a Bill in this way at this time does not accept, as the Government should, the limitations of time on a parliamentary process.

Quite separately from those complaints that I have about the Bill, the Delegated Powers Committee of this House has delivered a report which makes it absolutely clear that it takes considerable offence to a number of the Bill’s provisions that are giving power to the Executive to pass guidance; in particular, those that will give Ministers undue power because the effect of failing to comply with that guidance will lead to consequences in court, which will have an effect on the citizen. This is not the way to legislate. Yes, there are certain things that need to be done as far as the criminal justice system is concerned, but this Government should prioritise what those things are and then do them.

The Lord Chancellor said in another place that this Bill was designed to increase—or, in his words, restore—faith in the criminal justice system. It does not do that. There were things that he could have done to restore that faith, which is urgently required. I shall identify three things to indicate that. In the year to March 2021, a staggering 21.8% of victims said that they wanted to abandon their criminal case because they were fed up with the system—that is 945,000 cases involving the victims withdrawing their co-operation. A survey by Vera Baird, the Victims’ Commissioner, said that one-third of victims took the view that they would not report a crime again because of the experience they had had in the criminal justice system. As everybody in this House knows, because it has been repeated time and again, the number of complaints of rape goes up every year while the number of rape prosecutions goes down, and the number of convictions goes down as well.

Yes, we do need improvements to the criminal justice system, but a Christmas tree Bill of this size is not the way to deal with it. It is not possible in the time allotted either to me or to any of us to identify every single issue in relation to the Bill, but I will identify 11 issues that may be worth further consideration.

The first is on the policing of protests. The Minister will have seen what the Joint Committee on Human Rights has said in relation to the provisions that have been taken. It says absolutely explicitly that the Government have got the balance wrong between the right to protest and the powers being given to the Executive. To give the Executive the power to ban demonstrations because they make excessive noise is not proportionate; you would expect demonstrations to make noise and we will be looking in some detail at those provisions.

Secondly, there is the issue of unauthorised encampments in Clauses 62 to 64. These go much further than the Minister said. Contrary to what she specifically said, they are an attack on the Roma or Gypsy way of life. It is not necessary and, furthermore, it is not supported by the National Police Chiefs’ Council. It is something the Government have done which goes much further than necessary.

Thirdly, the Bill does not bring into effect right across the country Section 28 of the Youth Justice and Criminal Evidence Act 1999. If that section had been brought into effect, it would have allowed and led to the ability—right across the country—of victims of severe sexual assault to give their evidence straightaway before a judge. They would be cross-examined about it, but the film of that evidence would then be played at the trial at a much later date. That would allow the victim to avoid that awful period as they wait for the trial to take place. But the Lord Chancellor said in another place only that it should be further piloted. Why is it not being introduced right across the country? A reason given is because there are not enough judges to do it, and there would need to be judges to hear the evidence of the victim. Apart from offences leading to death—primarily murder and manslaughter—it is hard to imagine a higher priority for the judiciary than hearing serious rape and sexual violence cases, so the absence of judicial resource does not seem a good excuse. We would strongly urge that it be rolled out and will introduce an amendment to that effect.

Fourthly, I welcome what the Minister said about the extraction of information from the mobile phones of victims of serious sexual assault. Subsequent to the deliberations of another place, I think, a code of practice was produced as to the circumstances in which the extraction of material from mobile phones could be done. We share the concerns that that code of practice does not adequately protect the interests of victims. In particular, it needs some sort of third party to protect their interests in relation to that; again, that will be debated. I would be very interested if the Minister could indicate to me what protections for the owner of the mobile phone are contained in the code of practice, and whether they can be strengthened.

Fifthly, we think that there should be, subject to judicial discretion in appropriate cases, a minimum sentence for rape of seven years. The answer given by Ministers in another place was, “Well, two-thirds of people convicted of rape get seven years or more now, so why do you need a minimum sentence?” The answer is: so that it is clear what the view of the legislature is on the gravity of that crime. There needs to be some degree of judicial discretion, but that could be built in.

Sixthly, we take the view that the Bill should have addressed as a priority the problem of sexually offending behaviour and provided greater protection. Three specific steps were proposed in the other place. First, a whole-life term should be the starting point for a murder that involved the abduction and sexual assault of the victim. Secondly, there should be an independent review of the sentencing code in relation to domestic homicides. Thirdly, there should be a power to sentence offenders for up to two years if they identify an anonymous complainant in a case involving rape or serious sexual assault.

Last Thursday—I may have got the date wrong—the Government announced an independent review of the sentencing structure for domestic homicide. Clare Wade, a Queen’s Counsel, has been appointed to review the sentencing framework. I do not know and have not seen the terms of reference of that framework. Could the Minister set out what they are and indicate what the relationship of that review is to sentencing guidelines and the Sentencing Council?

Seventhly, this is a perfect opportunity to deal with the Vagrancy Act 1825, which makes it a crime, in effect, to be street homeless. Are the Government, who have been broadly supportive of changes to the Vagrancy Act, willing to see it repealed? An argument given in the past as to why it should not be repealed was that you need something to deal with “aggressive begging”. We on this side of the House believe that that is already covered by other legislation.

Eighthly, this is the opportunity to deal with indeterminate public protection sentences. We recognise the problem that there are certain people whom it would be difficult to release, but they should be a very exceptional and small category. Perhaps they should be a category of people upon whom, if there had not been an IPP sentence, a life sentence would have been passed instead of the IPP. It may well be that everybody else—the number is going up, not down, over a definitive period—should be released.

Ninthly, it was said in another place that the offence of assaulting a shop worker would be actively considered. Shop workers have been rightly praised for keeping the country and the economy going during the pandemic. We need a bit more than warm words. The Minister in the other place said that they would consider it. Can the Minister in this place tell us where they have got to in relation to that?

Tenthly, I understand that the Government are going to introduce in this place amendments in relation to the serious issue of pet theft, although I may be wrong. Could the Minister explain the position on that?

Finally, I turn to the issue of the children of mothers in prison. Time and again, prison sentences for mothers victimise their children. The Human Rights Committee of both Houses said that this is a perfect opportunity to deal with that issue, if on no other basis than that proper information and data be collected. I did not give the Minister notice that I would raise this issue, but if she could deal with it when it is convenient—perhaps not today but on another occasion—I would be grateful.

Separately from the things that we think are right—we have no problem with the police covenant or, as I have indicated, some of the strengthening of sentencing—we would like to focus on those eleven areas. I do not treat them as exclusive, and no doubt there are many things I have omitted, but this Bill is simply a scattergun that will not do enough for criminal justice.

I very much hope that, on 27 October, the key thing we will hear in the comprehensive spending review is that the criminal justice system will be properly funded and that recompense will be made for the 25% of funding that has been taken away from it by this Government.

Counter-Terrorism and Sentencing Bill

Lord Falconer of Thoroton Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Monday 21st September 2020 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

My Lords, thanks to the noble Lord, Lord Parkinson of Whitley Bay, for introducing with such care and clarity this important Bill. We understand he has been thrown in at the deep end after the sudden departure from the Government of the noble and learned Lord, Lord Keen. He has acquitted himself impressively so far.

This is a significant Bill. The criminal justice response is key in the fight against terrorism but can never be the only response. While many of the recent terrorist atrocities have been associated with Islamist extremism, it is important to identify that there remain threats from others: as the UK’s top counterterrorism police officer, Neil Basu, recently confirmed, the fastest growing terrorist threat comes from far-right organisations. Of the 224 people in prison for terror-related offences, 173 are Islamist extremists and 38 are far-right ideologues; and of the 16 plots foiled by the end of 2018, four involved the far-right.

This Bill deals with four issues. The first is increasing sentences for terrorist-related offences. The second is changing the basis on which those convicted of terrorist offences can be released, and the terms thereafter on which they are on licence. The third is changing the TPIMs regime in three significant respects: reducing the burden of proof, making TPIMs last potentially indefinitely, and increasing the range of powers a TPIM can include. The fourth is removing the time limit for completion of the Prevent review, mandated by previous primary legislation.

On this side of the House, we will look carefully at the details of the increase in sentences and the proposed change to the way the system deals with early release of those convicted of terrorist offences. We will also look at when and how the Parole Board should be involved and how it should approach these issues.

While the detail matters a lot, we do not in principle oppose the first two parts of the Bill. There needs to be really tough sentencing for terrorists. Confidence in the system and justice for victims depends on it. The Deputy Mayor of Manchester, my noble friend Lady Hughes, described the gasp from the families of the victims of the Manchester Arena bombings when Mr Justice Jeremy Baker imposed a minimum term of 55 years on Hashem Abedi, who was convicted of plotting the Arena bombing with his brother. My noble friend described the gasp as a small amount of relief among their terrible anguish. It brings little comfort, but the pain of inadequate sentencing for the victims of terrorist bombings is real. The families of those who died in the bombing have themselves been sentenced to a lifetime of pain and loss. The very least they can expect is that the justice system pass sentences that reflect the gravity of what happened.

Coupled with that is the disregard with which the system is viewed when terrorists are released before their nominal sentence is concluded and commit offences again. The tragedies of Fishmongers’ Hall on 29 November 2019, and Streatham High Street on 2 February 2020, are terrible examples. At Fishmongers’ Hall, the bravery of the Polish porter, Lukasz Koczocik, helped to overpower the terrorists. Two former offenders, James Ford and Marc Conway, also became heroes when they helped tackle the attacker to the ground. Jack Merritt and Saskia Jones, who dedicated their lives to seeing the best in people, were working in offender rehabilitation, only to be killed at the rehabilitation conference at Fishmongers’ Hall. I pay a heartfelt tribute to them and extend my deepest sympathy to their families for their unimaginable loss. This terrorist attack, like the one on Streatham High Street on 2 February, was committed by an individual who was already convicted as a terrorist offender but had been released automatically halfway through their sentence. They were neither deradicalised nor deterred by their time in prison. In fact, their time at Her Majesty’s pleasure had made the position worse.

The most serious terror offences already attract what is known as extended determinate sentences, which require an offender to be referred to the Parole Board at the two-thirds stage of their custodial term, when they can be considered for release. At the end of the custodial term, the offender will be released on an extended licence. For terrorist offenders for whom the maximum penalty for their offence is life, this Bill removes the opportunity of Parole Board-directed release before the end of the custodial term, ensuring they serve a whole term in custody. This applies UK-wide and to both young and adult offenders. For this cohort of offenders, there will be no chance of parole before the end of the custodial term. This will give rise to prisoner management problems where there is no prospect of early release. However, that may well have to be faced. As the Bill goes through the House, we will need to consider whether that is appropriate for someone convicted under the age of 21. People seduced by appalling ideologies when teenagers should have some hope. There is agreement that, the younger the subject, the greater the hope for successful de-radicalising measures.

The Bill proposes that the maximum licence period for terrorists after release should be 25 years. We have concerns about the proportionality and cost of that reform, which have also been expressed by the Independent Reviewer of Terrorism Legislation. There is no explanation as to how this burden will be paid for in the context of a decimated probation service. Much of what happens on licence will depend on the effectiveness of the probation service. It is truly hopeless of the Government to blithely increase these licence periods, thereby appearing tough to the public, knowing full well that without proper additional expenditure on the probation service, these commitments and legislation will have little effect in the real world. Could the Minister provide the House with estimates of how much extra expenditure will be incurred by giving effect to these additional licence periods? How will probation afford them?

These are some of the issues in the first part of the Bill that we will wish to explore. I make it clear that, in principle, we support increasing the length of terrorist sentences and the significant tightening of the circumstances, outlined in the second part of the Bill, in which a person convicted of a terrorist offence may be released before the end of his custodial term. We consider it crucial that the criminal justice system be effective in catching and convicting terrorists, passing appropriate sentences and ensuring—consistent with the terms of their sentence—that they are not released before it is safe to do so. That does not mean that every terrorist is sentenced to an indeterminate sentence, but that the true length of the sentence passed and how it is implemented must have public confidence.

In connection with sentencing and early release, I have focused on what is in the Bill, but it is important also to focus on what is not in it. Inside and outside the criminal justice system, there must be a much more driven and focused effort on de-radicalisation measures. For many prisoners, such measures will have no impact whatsoever; moreover, many will manipulate the system to obtain early release by pretending they have had an effect. But that is not a reason to give up on those measures, both inside and outside prison. The Acheson review of 2016 dealt with de-radicalisation measures in prison. He made 69 recommendations, consolidated down to 11, eight of which were accepted. What happened to those recommendations remains a total mystery.

Mr Acheson himself said in a report published in 2019:

“Our unsafe prisons provide a fertile breeding ground in which predators, peddling extremist and violent ideologies, can prey upon the vulnerable, creating significant risks to national security and the public at large.”


He added:

“On the present trajectory, it is all too conceivable that a future terrorist will have been groomed and radicalised within our prison estate.”


Can the Minister provide details of which Acheson recommendations have been implemented, and give details of how they have been implemented?

The failure properly to address de-radicalisation measures in prison will haunt this country for generations, as we establish “academies of terrorism”. We must continue with these measures, as much for the prisoners—often young and vulnerable—imprisoned for non-terrorist offences, who end up radicalised and dangerous because of a total lack of push-back from the authorities against the vile, dominating hold of much stronger characters who are imprisoned for terrorist offences, certain of the rightness of their warped beliefs and able to seduce others into them.

In the world outside prison, it is equally important that the state ensures proper pushback against these warped ideologies. The Prevent strategy is designed to do that, but there are legitimate concerns about it and the extent to which its unintended consequences damage the fight against radicalisation. We are disappointed at the slow progress of the review; we are disappointed that there is no reviewer in place and that the Government are still in the process of selecting one. Can the Minister give the House details as to when they hope the review might report, and indicate what steps they are taking to ensure that it does so within a reasonable time? The removal of the time limit, which expired in August 2020, is plainly contrary to the wishes of Parliament when it introduced that amendment. Too often, this Government appear to make a concession in relation to legislation and then do all they can to undermine the effect of that concession. The Dubs amendment is a painful example.

The sentencing, early release and licence provisions in the first two parts of the Bill include a provision for polygraph tests, as mentioned by the Minister, which are to be used to inform licence conditions and their compliance and whether prisoners have broken those provisions. The unreliability of polygraph tests is well known. Can the Minister tell the House what view the Government take on their reliability, how—in light of that—they consider their use to be appropriate, and what studies they are relying on? Once they accept that it is not appropriate to rely on polygraph tests alone to determine whether conditions are satisfied, why rely on them at all?

Finally, the Bill makes it easier to get a TPIM, gives greater powers if a TPIM is granted, and allows it to last indefinitely without any change in circumstances. There will be cases where trial, conviction and sentence are not possible. It is right that the Government have the sort of power that a TPIM involves as part of their armoury against terrorism, but the changes are significant. Much anxiety has been expressed by non-aligned bodies about whether these powers are necessary. We will look very carefully at these powers. What is absolutely key is that the Government make a proper case for the need for these additional or changed aspects of TPIM. Can the Minister identify, in general terms, the difficulties experienced by those with the power to seek these orders, which currently arise from the balance of probabilities test? Can the Minister explain why it is thought necessary to extend them without a change in circumstances for longer than two years?

This is an important Bill. We will work constructively with the Government to deliver it, and will focus the whole time on equipping the authorities to be as effective as possible in combating terrorism. That means tougher sentencing and parole arrangements, but it also means effective measures to keep people from being radicalised or remaining radical.