Offensive Weapons Bill

Lord Hogan-Howe Excerpts

Committee: 3rd sitting (Hansard): House of Lords
Wednesday 6th February 2019 Grand Committee

[Lord Ramsbotham (CB)]

My Lords, I entirely understand why the Government feel that they have an obligation to take meaningful and effective steps to protect the public from those who use offensive weapons. Even before today’s letter in the Times, though, I already had five reasons for being extremely concerned about their proposal to introduce knife crime prevention orders, as set out in Amendments 73A to 73U. Like the noble Lord, Lord Paddick, I am concerned that the proposal should have been rushed through at such a late stage in the passage of the Bill, meaning that the proposed orders were not subject to scrutiny in the other place.

I am interested that all my reasons are shared by the Magistrates Association. First, there is no evidence that orders like these are effective at tackling harmful behaviour or will address the root causes of knife carrying, which, as many noble Lords have said at various stages during the passage of the Bill, is a symptom of wider social issues. Secondly, the orders can be imposed, on the balance of probability rather than a criminal standard of proof, on children as young as 12, which will result in the criminalisation of people who have not committed a criminal offence. Thirdly, I share the belief of the Prison Reform Trust and the Standing Committee for Youth Justice that a criminal sanction of up to two years in prison is a disproportionate sanction for a breach of a civil order. I also question the lack of any distinction between the penalty for breach by a child and by an adult, believing that a sentence of imprisonment for breach is not appropriate for children.

Fourthly, there is no detail about how much the proposed orders will cost or how they are to be resourced. Neither is there an explanation of how the very wide-ranging requirements that will be placed on individuals made subject to orders are linked to offences with bladed articles, or how courts could know what requirements are going to be effective in reducing the risk of knife crime. The already inadequate impact assessment contains no details of cost, nor has the cost of the likely increase in custody numbers due to order breaches been factored in. The Police Federation of England and Wales has questioned the capacity of the police to enforce the orders, given the impact of cuts to police budgets and resources. Its chair commented:

“How the Home Secretary thinks we have the officers available to monitor teenagers’ social media use, or check that they are at home at 10 pm, when we are struggling to answer 999 calls, is beyond me”.


Fifthly, the proposed orders seem to be the very antithesis of the public health approach to the problem—the essence of the serious violence strategy advocated by Ministers both in this House and in the other place during the passage of the Bill. Furthermore, the orders are bound to increase the already alarmingly disproportionate outcomes for black and ethnic minority young people, which many noble Lords mentioned in connection with their relationship with the criminal justice system. If we could vote in Grand Committee, I would certainly vote against the amendments and I look forward to doing so on Report.

[Lord Hogan-Howe (CB)]

My Lords, I support the amendment although I note that the noble Lord, Lord Paddick, in objecting to it, said that he would support some form of order if not this particular one, which seems in principle to suggest that something needs to be done. My reasons for supporting it are the ones laid out by the Minister. First, there is clearly a problem. Even last night, a young man was murdered in London— a 19 year-old—and it continues to be a problem. The problem has not gone away.

I do not have the same recollection of ASBOs as the noble Lord. They were a response to a moral panic. There was an issue about anti-social behaviour and for a time they provided a solution. I do not think that they were such a grave intervention in young people’s lives, unless they chose to ignore the civil order that had been made by the courts. They were not criminalised by the order that gave them the ASBO, nor will this knife crime prevention order criminalise them. They will be criminalised only if they breach the order. That is an important distinction. It is then up to the court, which is unlikely always to award two years’ imprisonment. There is no minimum sentence so I believe it is up to the judge to decide in each case what to award. But as part of changing the culture it is necessary.

We have sadly seen through various generations that young men in particular have used different types of weapons. The 1953 Act, for those who remember, was intended to address Teddy boys and greasers. It is a sad reality that gangs have used weapons and sometimes we have to change the law to change that culture.

The point about resources was a fair challenge— I have only just recently made the point that the police could certainly do with far more—but the police have asked for this measure. I checked before making my comments and certainly, the Metropolitan Police feel that they could police these things. Given the numbers involved and the seriousness of the offence, they think it is manageable. Of course, nobody would deny that it is an extra burden. But if the numbers are true—3,000 people in the UK, broadly—not all of them will get these orders and clearly not all of them will breach them so the measure is not entirely unmanageable.

The point made by the noble Lord, Lord Ramsbotham, about age was fair. Nobody wants to criminalise very young people, but the sad reality is that people as young as 12 are joining gangs and they are attracted by the drugs and money that go with it. I am not sure that they make a conscious, adult, mature decision to begin that process, but it is true that they can be threatening and that should be considered. In that context, I am trying to make sure that the orders are effective, rather than claiming that they are not necessary

A knife crime protection order is a non-conviction order for someone who is found carrying a bladed item on two occasions during the relevant period. What concerns me is that they could have been carrying an offensive weapon such as acid on one occasion, which presumably contributes to this concern that they may be involved in violence. If this order is intended to reduce that risk, that should be taken into account. I know why this provision tries to keep things simple—it is a bladed item, and we are all worried about knives. Sadly, they are not the only offensive weapons that young people use.

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[Baroness Meacher (CB)]

My Lords, I support many of the comments made by other noble Lords—the noble Lord, Lord Paddick, my noble friend Lord Ramsbotham and in particular the right reverend Prelate the Bishop of Newcastle. There are many problems with these prevention orders. We may need orders of some sort, but surely not these. I hope we have a really serious discussion about how to protect children. In subsection (5) of the proposed new clause in Amendment 73A, the reasons accepted as good reasons for carrying a knife do not include a fear of harm. Yet, as other noble Lords have said, this is probably the most common reason. I regard it as utterly right and proper; we do not want kids carrying knives, but if you are terrified of being attacked you should not be criminalised for carrying a knife in your pocket to protect yourself. I hope that before Report the Minister will give serious thought to including at least that—that is just one tiny bit—in the reasons accepted as good reasons.

A second problem is that, according to subsection (1) of the proposed new clause in Amendment 73C:

“An application for a knife crime prevention order … may be made without the applicant giving notice to the defendant”.


The police can impose an interim knife crime prevention order, and the same requirements may be made under that interim order as under a full knife crime prevention order. Yet the defendant does not even know this is happening and has not put their side of the story or explained, for example, that they were carrying the knife only because they were petrified of the three boys who live down the road who were trying to get them involved in a gang. What is going on? I am terribly worried about that bit of it.

Others have mentioned the standard of proof— the balance of probability—when these kids go into criminality. Surely that cannot be right. However, there are many more general concerns about the imposition of yet more criminal deterrents on children as young as 12. I have read some briefings carefully and I want to refer to the one from the Children’s Society. According to its Good Childhood Report 2017, an estimated 950,000 children aged between 10 and 17 had experienced crime. No wonder crime is often cited as the reason children carry weapons. This problem is rife and of course we all want something done about it, but are we really tackling it in the right way here? I do not think so.

We know that for two decades the Government have attempted to deter violent crime and anti-social behaviour through the imposition of criminal and punitive civil deterrents. So far, such deterrents have not had a substantial impact on reducing the level of youth crime and youth violence, but that is what we all want—we certainly do not want knife crime. Of course we want violence to be reduced, but these approaches have been shown not to work. As we know, the level of knife crime has risen sharply. There is a body of evidence to show that criminalised interventions do not lower crime rates. I referred in an earlier debate to the meeting in which we listened to Neil Woods. After years of working as an undercover officer and catching people involved in criminal gangs and so on, he realised that he was making not a jot of difference to criminality and violence. He threw it all up and has now written books on the subject. He knows that he has not made any difference, having put his whole life on the line and having been in considerable danger for many years. We need to listen to people like him.

Does the Minister accept that the Home Office needs to make targeting the adults who coerce, control and threaten these kids a much greater priority? Surely Ministers should not target these children with these orders. It just does not feel right and, to be perfectly frank, I do not understand it. Therefore, can we amend these proposed new clauses before Report to ensure that, if we are to have prevention orders—and I think that we probably need them—they focus on positive inputs for children under the age of 18 with the provision of support, treatment in the case of kids addicted to alcohol or drugs, educational guidance and help to secure the safety of the child.

When a child is considered for an order, surely they should be referred to children’s social care for an assessment under the Children Act 1989 or to the national referral mechanism as appropriate. If the child is found to be at risk of exploitation, the police response surely needs to be entirely different from that envisaged in these amendments. I am not saying that there should not be a response but it should be different. As I said in relation to another amendment, we know that short-term prison sentences have very poor results in terms of reoffending. Why would we have more of them? In conclusion, I hope that the Minister will be willing to discuss how the emphasis of the amendments can be shifted from punitive, unsuccessful, short-term incarceration to something that will work. We have quite a lot of knowledge about what might work.

It is difficult to debate these proposals without reference to the huge cuts to youth services in this country. I know that it could be said that this is a political point but I do not mean it to be that at all. It is pretty desperate when £400 million is taken off those services at a time when we want these children to be referred to them for support, and £51 million has been put into the Serious Violence Strategy. That is one-eighth of the cuts—it is a peanut; it is nothing. Local authorities are facing a deficit in their budgets for children’s and young people’s services of £3 billion over the next five years. It seems that spending on police, courts and prisons is fine but spending on real prevention and turning young people around is something that we can dispense with. I say that because it is obvious that we should put money there rather than elsewhere. I look forward to the Minister’s response.

[Lord Hogan-Howe]

My Lords, the noble Lord, Lord Ponsonby, said that because I had made a suggestion about how the amendment might be improved, it indicated a lack of consultation. In fact, one of the amendments was a police proposal which has not found its way into the Bill, so I am re-presenting it. It was not that it not been asked for or shared; for whatever reason, it was not there, which I found odd.

More fundamentally, we have to keep an eye on what the Bill is trying to do. Good parents of young people will either try to stop them mixing with the wrong people or stop them going to certain places where they would get into harm or cause it. That is broadly what the Bill tries to do where a parent cannot or will not: it tries to restrict where people can meet and whom they meet if they are causing a problem.

The right reverend Prelate said that she hoped the law would acknowledge the difference in age. The sad reality is that the criminal law makes no distinction about age other than by criminal responsibility. Murder is murder. Whether you are 16 or 33, it is murder. From 14 onwards, it is absolute liability; from 10 to 14, one has to prove a certain intent. We have to accept that that is true. The thing that concerns me in some of the contributions is that we seem almost to be giving a defence to someone who is terrified—which I accept—that it is therefore okay to carry a knife. That means that the offensive weapon law is useless. I understand that it is a sincere belief—I do not challenge that—but that is what everyone says. Sometimes it is true, and sometimes they are the aggressor. However, even if it is true, unless we are going to agree to people carrying guns and any offensive weapon justified by their fear about defending themselves, it is a real difficulty. It may be something on sentencing, or it may be that you can show reasonable cause—I do not think you can ever show reasonable cause for carrying an offensive weapon—the definition of an offensive weapon is something intended, made or adapted to hurt people. It is important that we keep an eye on that because if we put a defence of that type in, it will be abused.

[Baroness Meacher]

The noble Lord suggests that some of us are saying, “It’s okay to carry a knife”. I want to make it clear that I am not saying that. I have a feeling that noble Lords around us are not saying it either. It is not okay for kids to carry knives. The only issue is what we do to help them not to have to carry a knife.

Offensive Weapons Bill

Lord Hogan-Howe Excerpts

Report: 1st sitting: House of Lords
Tuesday 26th February 2019 Lords Chamber

[Baroness Hamwee]

My Lords, in moving Amendment 5 in my name and that of my noble friend Lord Paddick, I shall speak also to Amendments 6, 7, 20, 21, 22, 28, 29, 30, 31, 32 and 34.

For most of us in society, the idea of going to prison for even a short amount of time, with the loss of liberty that that entails, is a real deterrent. But that thinking fails to get into the mindset of many of today’s criminals, who may be reckless or who may not fear prison because they have friends and family who have done time. Perhaps their lives are so chaotic that, in the scheme of things, prison does not seem so bad. That is true of no group more than those serving the shortest sentences. It was recently said:

“In the last five years, just over a quarter of a million custodial sentences have been given to offenders for six months or less; over 300,000 sentences were for 12 months or less. But nearly two thirds of those offenders go on to commit a further crime within a year of being released. 27% of all reoffending is committed by people who have served short sentences of 12 months or less. For the offenders completing these short sentences whose lives are destabilised, and for society which incurs a heavy financial and social cost, prison simply isn’t working”.

By now noble Lords may have recognised the source of this quotation. The speaker went on to say that,

“there is a very strong case to abolish sentences of six months or less altogether, with some closely defined exceptions, and put in their place a robust community order regime. Let’s be honest. The public will always want to prioritise schools or hospitals over the criminal justice system when it comes to public spending. But where we do spend on the criminal justice system, we must spend on what works. Why would we spend taxpayers’ money doing what we know doesn’t work, and indeed, makes us less safe? We shouldn’t”.

Thank you, Justice Secretary, for putting the case so well.

I commented at the last stage of this Bill that, not so long ago, the Home Office and the MoJ were a single department. It was too big, but it is a great pity that thinking has moved so far apart that one department is now legislating for a sanction which the other considers unproductive.

These amendments would remove the sanction of short-term imprisonment for up to 51 weeks—the same points apply as those made by Mr Gauke in his speech a few days ago. We are dealing with various offences: the sale of corrosives to under-18s, the delivery of corrosives to residential premises and having the corrosive in a public place. We would have preferred to focus on robust community sentences, but we learned during the last stage that they can be applied only as an alternative to a custodial sentence. In my view, that needs updating—but that is for another day. I hope that the Government might address this: otherwise, we will do so at a suitable opportunity.

In Committee, it was said, understandably, that victims feel let down because community sentences do not have the same weight and are ineffective. That is an important issue, which should be addressed by the robustness of community sentences. I have heard over the years that a tough community sentence is much harder than custody.

The offences in question are rather difficult. The first two that I mentioned are likely to be committed by adults. Being found to have committed a criminal offence and being fined, which is what our amendments would achieve, would have a serious impact on the offender as an employee—or possibly, in the circumstances, as an ex-employee. The third offence may be committed by an adult but also by a child. The arguments about custodial sentences being rather good at fitting someone for a life of crime particularly apply.

The Minister in Committee talked about the significant harm that corrosive products can cause if misused. The offences in question, which are the subject of these amendments, are not about the use of corrosives as a weapon. We are not seeking to minimise or make light of the harm that corrosives can cause; that is not the point. The Minister will also say that the court has discretion as to disposal, which is of course true up to a point.

That takes me to Clauses 8 and 9—the subject of the last two amendments in this group—which we would leave out. They require particular, mandatory sentences. Clause 8 applies to, among others, children over 16 who have one previous relevant conviction. We are concerned about the age threshold, for reasons that we went into fairly extensively at the last stage and which, I suspect, other noble Lords may raise today. I say in advance that I will probably agree with them. We have an in-principle objection to mandatory sentences. The Minister described them as providing the appropriate custodial sentence. But is not “appropriate” something that the court should determine? We may have criticisms of pre-sentence reports and so on, but the court is looking at both the offence and the offender; those taken together will lead the court to take a view on what is appropriate.

In Committee, we explained our opposition to the application to under-18s—I felt then, and still feel, that Clause 8(4) is inadequate. It is, if I may put it this way, the legislative equivalent of lip service that,

“the court must have regard to its duty under section 44 of the Children and Young Persons Act 1933”.

The text refers back to Clause 8(2), which tells the court that if it is,

“of the opinion that there are particular circumstances”,

it can take a different course. But the circumstances here are that the person is under 18. So how does having regard to the welfare of the child or young person actually work? Does it mean that one child is more resilient than another, that one offence is less serious than another, or that the circumstances make custody “unjust”? This is what discretion in sentencing is about, and these Benches prefer judicial discretion to executive sentencing. I beg to move.

[Lord Hogan-Howe (CB)]

My Lords, I am going to say some contradictory things on this amendment—I have spent a career doing that, so it is perhaps not that unusual. Fundamentally, I think we probably need fewer people in prison. We could probably manage with half the number we have now. The question might be how we get there. As the noble Baroness, Lady Hamwee, mentioned, the Government have said that they would like to have less use—if not no use—of short sentences, so this seems a little contradictory. I would not do that myself; I would find other measures to reduce the prison population. That would probably mean releasing people at the end of their sentence rather than not putting them in there in the first place should it be deemed that they have committed a serious offence.

Here we should come back to the idea that prison is needed as a sanction in these cases; I think that it is relevant. There is no doubt that prison is not helpful for recidivism. All the evidence shows that, when people go to prison, some 80% reoffend within two years of their release. The most effective mechanism for reducing recidivism is called a police caution: broadly, 70% of those who offend never reoffend when they have received a police caution. So prison on the whole will not help with recidivism, but of course while offenders are in there, they will not attack members of the public—although they might attack each other.

The offences here are serious enough for prison at least to be considered. There would obviously then be a debate on how long the sentences should be. If the Government do decide to exclude short sentences, either on this occasion or as a general policy, that would also exclude things like weekend sentences, which would help reduce the prison population. They can be a very constructive way of reintegrating someone after a long sentence, or they can be an alternative to a short sentence.

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[Baroness Williams of Trafford]

Representatives of USDAW are part of the steering group along with staff from large retail organisations right down to small shop owners. It is important that we have a wide range of representation from organisations so that we can see the full spectrum of exactly what issues are involved. I am aware of my noble friend’s past employment with Tesco. Somehow I had assumed that a big organisation would suffer less abuse because the shops are covered by security officers, but that is not necessarily the case. I have witnessed this myself in big retail organisations, and to improve our understanding, we need representation from across the spectrum of those retail companies.

[Lord Hogan-Howe]

I am minded to support the amendment, because the case is a good one for shop workers. I just wonder whether, if the Government are not minded to support an explicit offence—whether for shop workers or any retail worker who is enforcing a licence—in legislation in whatever form, the Sentencing Council could consider that as an aggravating factor in the offences that already exist. This could relate to many other types of offence, so we may be able to support the people who need supporting without needing all the legislation to change to cover the different types of licensee who need that support.

[Baroness Williams of Trafford]

The noble Lord makes a good point about aggravated offences—and of course, that can be explored through the call for evidence. As he will know, it is already an offence to abuse or attack someone who is serving the public. USDAW wanted something specifically related to shop workers, and that is one of the suggestions that could be taken forward—in fact, it may well be taken forward—to the call for evidence.

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I had hoped that the days had gone when Governments gave the police all the powers they wanted so that they could blame them, not themselves, if things went wrong. They have apparently not. These orders have not been thought through and we oppose them.

[Lord Hogan-Howe]

My Lords, I also spoke in Committee. I cannot agree with the noble Lord, Lord Paddick, as he is aware. I come from a similar background and do not have the same experience of anti-social behaviour orders. They were introduced by a Labour Government and, at the time, I think they had an effect. We had a moral panic, and we also had a problem with anti-social behaviour. They were intended to address repeat offenders, repeat locations and, sadly, repeat victims. They did have an effect. They probably went on a bit too long and eventually outlived their usefulness, but the principle was valid and addressed the order to people’s offending. People had the choice to address their offending pattern or have a criminal sanction, and some chose not to address their offending pattern.

The point that the noble Lord, Lord Paddick, made—that it seems to intervene with young people who may not be able to remember all of the conditions placed on them—is not unreasonable. However, generally, this order’s aim is to replace the parental care that the noble Lord, Lord Elton, referred to earlier. When some of these kids do not have someone who cares enough to say, “That’s a line—don’t cross it”, this is one way to give them some advice. I do not think that it means that a 12 year-old will always end up with a prison sentence or even a criminal conviction, but someone needs to intervene in that pattern. Why are they getting involved with gangs and, frankly, mixing with people who are not helping them? Someone needs to advise them where they should not go, who they should not see and about the types of behaviour that are causing them problems. This is one way of doing it. I accept that there may be others, but I do not think that it is unreasonable to give that type of advice.

I broadly support these orders, mainly because we have a serious problem. The Minister went through the number of people who have been hurt and arrested carrying knives, and we clearly have a cultural problem at the moment. We have had it in previous years—this is not the first time. People in this Chamber will remember tens of years ago, when various groups who carried knives ended up competing with each other, often to sell drugs or for any other form of territory where a weapon became the means of establishing it. We have to intervene now and send a message.

I will contest one final point from the speech by the noble Lord, Lord Paddick, about whether community officers are there to arrest people. They are not, but in my view they are not there just to smile and be nice to people. They have powers. It does not help the community they serve if they ignore offences and leave someone else to make the arrest. They are there to exercise the powers that allow people to trust that it is worth telling them when an offence has been committed.

I would ask the Government still to consider two areas for the future. I agree with the point about pilots. At one time, the Ministry of Justice had so many pilots that we thought it was starting an airline. The danger is that, after a while, it becomes confusing. It also becomes quite difficult to evaluate the success of multiple pilots; so, I worry about pilots generically.

The second point, which the Minister quietly mentioned earlier, is that some people are released from prison to areas other than those where they were convicted. Also, offenders move from where they live to other areas around the country, which means that officers in areas where a pilot may not be in place would have to understand what the powers are; frankly, that could get pretty confusing. This House and the other place generate a huge amount of legislation; officers are expected to remember and act on it fairly. The more legislation there is, the harder it is to enforce when it is partial and fragmented. I worry about pilots for that reason too.

On the point made by the noble Lord, Lord Paddick, if we accept that there is a need for this legislation—as I do, and I am prepared to support it—deciding to implement it partially seems an odd conclusion, since we have agreed that nationally there is a problem. We need to implement legislation in a uniform rather than a fragmented, incremental way.

Finally, I repeat a point that I made in Committee: this Bill does not give a power of search. The Minister said in Committee that existing powers of search were sufficient. I honestly do not believe they are. Section 1 of the Bill gives a power to search—anybody at any time—on reasonable suspicion, but these orders are for people who have already gone through a court process, probably at least twice, and have been found to be at risk of carrying knives. It seems not unreasonable to support the police in the relatively few cases concerned, as mentioned by the Minister; I am sure that far fewer than 3,000 of these orders will be implemented. It would not be an incredible burden for the legislature to support the police by saying that a power of search goes with this power, without the “reasonable cause” that Section 1 requires; it would not be unreasonable to support the police in that way. The officers described by the noble Lord, Lord Paddick, who proposed this power—which is generally supported by the police—had requested that the power of search went with it. They were disappointed when they saw that this request had not been accepted in the legislation.

I support the amendments but I suggest to the Minister that the Government consider the two issues I have mentioned: piloting and the power of search.

[Baroness Meacher]

My Lords, I rise to respond to the government amendments in this group, as well as Amendments 55 to 60 in relation to the proposed pilots of the new KCPOs. I thank the Minister for meeting me to discuss my considerable concerns about these knife crime prevention orders. Amendment 52 could provide some reassurance, but that would depend very much on how those pilots are undertaken and reported upon.

In view of the Government’s claim that these orders were wanted by the police, I asked Ron Hogg, the Police and Crime Commissioner for Durham—which is one of the top-performing constabularies in the country, according to the inspectorate—whether he and his chief constable, Mike Barton, would find KCPOs a helpful contribution to policing and dealing with knife crime. His considered response—given at some length—amounted to a resounding no.

I would be grateful if the Minister could inform the House how many police services want knife crime prevention orders and how many would prefer not to have them. Police and Crime Commissioner Hogg reiterated many of the concerns that I raised in Committee; in particular, that there is a body of evidence to show that criminalising and punitive civil deterrents have not had a significant impact on reducing youth violence. These policies, as others have mentioned, have included ASBOs, dispersal orders and criminal behaviour orders. Can the Minister confirm—this is very important—that the KCPO pilots will specifically assess, and report on, their impact on the criminalisation of children, and the impact on knife crime in the areas involved? It is no good having pilots if they do not nail down what the orders are achieving in the crucial areas.

Does the Minister accept that in the light of recent swingeing cuts to local authority youth services, and drug services in particular, it will be important to boost these services and restore those cuts in the pilot areas, with a view to rolling out that restoration of funding across the country? Only if these prevention orders really do lead to children and young people accessing the services and treatment they need will criminalisation be avoided and positive outcomes achieved.