Imprisonment for Public Protection

Viscount Hailsham Excerpts

Tuesday 16th January 2024 Lords Chamber

[Lord Bellamy (Con)]

My Lords, it is a very good question. A strengthened action plan—a strengthened sentence plan for each IPP prisoner—is an essential part of the wider IPP action plan. That is currently being worked on so that each IPP prisoner still in custody will have a personalised, updated and—we hope—effective sentence plan eventually leading to their release if that is at all possible. The newly established IPP progression board dealing with this matter now includes stakeholder representatives, who met in September and just before Christmas and will meet again in March, when we will report a full update on how the action plan is progressing.

[Viscount Hailsham (Con)]

My Lords, I reinforce the suggestion made by my noble friend Lord Clarke. Has the time not come to provide a presumption that all IPP prisoners who have served the tariff should be released unless there is robust evidence tendered to the Parole Board that they are unsafe to be released?

[Lord Bellamy (Con)]

My Lords, that is, in effect, the present position. The Government have no interest in holding these prisoners, especially given the pressure on the prison system generally. The Government’s fear, worry and concern is public protection, for the reasons I have given.

European Court of Human Rights: Rule 39

Viscount Hailsham Excerpts

Tuesday 6th June 2023 Lords Chamber

[Viscount Hailsham (Con)]

My Lords, does my noble and learned friend agree that in principle, an interim order should be made only after a hearing at which both parties are present and can make their case? If, in exceptional cases, an interim order is made on an ex parte basis, does he agree that the return date should be a swift one and that both parties should then be able to make their representations to the judge?

[Lord Bellamy (Con)]

My Lords, I agree in principle with the comments made by my noble friend.

Prisons: Death Statistics

Viscount Hailsham Excerpts

Wednesday 30th March 2022 Lords Chamber

[Viscount Hailsham (Con)]

My Lords, one factor that may have contributed to the increase is the extended period in cells in custody due to the pandemic. If that is correct, does it not strongly argue that, if we are to reduce the number of suicides, it is important to increase the amount of meaningful out-of-cell activity for prisoners?

[Lord Wolfson of Tredegar (Con)]

My Lords, my noble friend is right and we do want to do that. We also want to do two other things: to increase videoconferencing, so to speak, between prisoners and their families, as we found during the pandemic that it has been very successful; and to make sure that trials come on more quickly, so that people are on remand for a shorter time. That is why, next year, we are planning to hold 20% more jury trials than before the pandemic.

Police, Crime, Sentencing and Courts Bill

Viscount Hailsham Excerpts

Lords Hansard - Part 1 & Lords Hansard - part one & Report stage
Wednesday 15th December 2021 Lords Chamber

I also support Amendment 82A, tabled by the noble Lord, Lord Ponsonby, and my noble friend Lord German, which would introduce restrictions on sentences of six months or less. We on these Benches would go further and introduce a positive presumption against such short sentences, which, on all the evidence, do nothing to reduce reoffending—rather, they do the contrary—or to cut crime. I will leave it to the two noble Lords to set out the case for this amendment more fully. I beg to move.

[Viscount Hailsham (Con)]

My Lords, I support the observations made by the noble Lord, Lord Marks. On previous occasions, and indeed in Committee, I expressed my real anxiety about mandatory minimum sentences, particularly in the context of this group of amendments. I share the noble Lord’s view that a mandatory minimum sentence of this kind is capable of doing very considerable injustice.

I appreciate my noble friend the Minister’s view about exceptional circumstances, which he has explained before. I recognise that there is an ability on the part of the judge in exceptional circumstances to disapply the minimum sentence, but I share the noble Lord’s view that the concept of “exceptional circumstances” means something way out of the ordinary—exceptional. That means that the proviso, in my view, will be seldom applied.

The amendment moved by the noble Lord goes much further than that and, in my interpretation of it, imports the concept of fairness and justice. I agree with him. Because that is my interpretation of the amendment —namely, that we are introducing the concept of fairness and justice as a means of disapplying the minimum mandatory sentence—I shall support the amendment if the noble Lord seeks the opinion of this House.

[Lord Pannick (CB)]

My Lords, I have added my name to the amendment proposed by the noble Lord, Lord Marks, and I agree with everything that he said and, indeed, what has been said by the noble Viscount, Lord Hailsham. There is no doubt that there is a real difference, both in principle and in practice, between exceptional circumstances and what is required in the interests of justice. It seems to me that, whether or not the circumstances are exceptional, it is essential that the court has a power not to impose a sentence that the judge believes to be contrary in the circumstances of the particular case to the interests of justice.

I am surprised and disappointed to hear from the noble Lord, Lord Marks, that a Minister of Justice, particularly one as wise and fair as the noble Lord, Lord Wolfson, should resist an amendment that confers power on the courts to avoid imposing a sentence that the judge believes would be contrary to the interests of justice. How can that possibly be right? If we are to have more minimum sentences—and I share the concerns as to whether we should—it is absolutely essential that the judge has a discretion to impose a sentence that he or she thinks is in the interests of justice.

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[Baroness Brinton (LD) [V]]

My Lords, I welcome this further opportunity to speak to Amendments 78C and 78D in the name of the noble Lord, Lord Ponsonby, on the unduly lenient sentence scheme, to which I have added my name, and to Amendment 82B in my name on home detention curfews.

First, I thank the Minister for trying to set up a meeting. It was unfortunate that he had to cancel it and that, because of the emergency coronavirus legislation, I was not free to meet him either yesterday or today. Further, as an aside, it is good to see the Government finally publish their consultation on a victims law and I hope that, after the consultation, legislation will swiftly follow. We have been waiting a long time and today’s amendments are very definitely there to help victims.

Turning first to Amendments 78C and 78D, in Committee, speakers made clear how the ULS scheme plays an important role in our justice system, providing the right for individuals to apply to the Attorney-General’s Office where they believe a sentence to be unduly lenient. As the Minister clarified earlier, the unduly lenient sentence scheme does not provide a direct right to appeal, but instead provides an individual, including victims of crime and bereaved family members, with the opportunity to have their concerns considered by the courts.

On Amendment 78C, we hope that the Minister will acknowledge both the intent and practicalities of such a proposition. The Government’s own victims’ code of practice is clear that victims deserve the right to be told about this scheme and that the responsibility for informing victims of crime about it is assigned to the witness care units. The problem is that the witness care unit is the wrong authority to have this responsibility, because it interacts with only those who are witnesses in court, thus excluding many victims, including bereaved family members.

Amendment 78D seeks to allow flexibility in the 28-day time limit in exceptional circumstances, which would remain at the discretion of law officers when considering the application. If the Minister is concerned about the perceived risk this poses to the certainty for the offender, we believe that allowing a degree of flexibility in exceptional circumstances, as is given to the offender in this case, at the discretion of law officers, does not pose such a risk.

Part of the current problem, and its true risk to finality in sentencing, lies in the current backlogs facing our court system. One recent unduly lenient sentencing case has taken 10 months to reach the Court of Appeal. This does not resolve the fundamental problem that victims face, which is that the criminal justice system should ensure that victims are aware of their rights, have sufficient opportunity to exercise them and have the same rights of flexibility in truly exceptional circumstances. We believe that these amendments, rather than posing a risk to justice and its efficiency, seek to ensure that justice is truly served and that victims of crime have the right—as the Government have set out elsewhere—to a fundamental role in this process.

I turn now to Amendment 82B, which seeks to amend the policy framework governing the use of home detention curfews to exclude those who have previously breached protective orders and who have a history of stalking, harassment, domestic abuse and coercive control. During the debate in Committee, we discussed the fixated and obsessive nature of these offenders and the risk this poses to victims and the public. We gave worrying examples of cases where high-risk offenders were released on home detention curfew, only to appear outside their victim’s home or work, often despite court injunctions not to contact their victim.

After Committee, Victoria Atkins, Minister for Prisons and Probation, wrote to the Victims’ Commissioner for London, stating that the scheme provides a transition to the community for lower-risk offenders. If we are to believe that this Government take violence against women and girls seriously, can the Minister explain how they can consider those convicted of stalking and domestic abuse as lower-risk offenders? The Minister himself stated, in a recent event held by the Domestic Abuse Commissioner, that domestic abuse is at the top of the Government’s agenda and reforming and reframing their response is their top priority.

Support for this amendment would present a small step in the right direction to give victims of such violence the trust and confidence that the justice system is committed to tackling violence against women and girls. I will not press Amendment 82B to a vote, but would welcome a meeting to see if we can make some progress on reducing the contradiction highlighted by Victoria Atkins for something that would provide real support for victims.

[Viscount Hailsham (Con)]

My Lords, I appreciate that the noble Baroness who moved the lead amendment in this group is concerned primarily with Amendment 78B, but perhaps I might be forgiven if I focus exclusively on Amendment 78A. This relates to the new clause, which would apply a minimum mandatory sentence of seven years to the offence of rape.

I am against this proposed new clause and think it profoundly wrong. I am against it for essentially two reasons. First, as one who has practised in the criminal courts for many years, I know that the offence of rape carries within it a very broad spectrum of culpability, from the most serious kinds of offence to ones significantly less serious. That should be reflected in the ability of the judge to impose the appropriate sentences.

Already a life sentence is the maximum that can be imposed. This takes me to my second point—that I really think the amendment is unnecessary. Anybody who goes to have a careful look at the guidelines published by the Sentencing Council as to how courts should approach sentencing for rape will come to the conclusion that public protection is already appropriately safeguarded. In fact, the spectrum of custodial sentences set out in the Sentencing Council guidelines is between four and 19 years. There is a whole host of considerations set out to assist the judge in determining what level of sentence should be imposed.

That takes me to the last point that I want to make. If you go to the Sentencing Council’s guidelines, as I am sure many of your Lordships have done, you will see a whole range of mitigating circumstances—as well, of course, as aggravating circumstances. Those mitigating circumstances are circumstances that a trial judge could take into account when imposing a determinate sentence of less than seven years. In the new clause proposed in Amendment 78A, nothing is said, for example, about what the consequences would be of remorse or contrition, nor about the making of an early plea, although that of course now attracts a mandatory reduction as a general proposition. Nothing is said about what happens if the defendant has been assisting the prosecution, nor about the time spent on bail. All those things are built into the sentencing guidelines of the council, but they do not appear in the proposed new clause.

If the amendment was to be accepted by your Lordships’ House, very considerable injustice would be done. I also happen to think that it is wholly unnecessary.

[Lord Sandhurst (Con)]

My Lords, I shall speak to Amendment 78B, on the maximum sentence for disclosing the identity of sexual offences complainants. I understand the motivation for this amendment and agree with the sentiment underlying it. The current level is obviously inaccurate and inappropriate, but it should not be addressed in isolation. It is correct that the present provisions for dealing with disclosure need revision, as they were passed in 1992 and plainly directed at conventional print, radio and TV media, antedating the internet. For newspapers and TV stations, a fine is generally appropriate. Since 2015, a level 5 fine has meant an unlimited one, which could run to hundreds of thousands of pounds for a newspaper that does this either deliberately or inadvertently. But we all know that today a malicious individual can cause similar damage with a post on the internet, and imprisonment may well be appropriate.

These are serious sexual offences—I do not deny that at all—but there are other matters of great sensitivity that will not be covered by this; it could well cause offence and upset if they are not dealt with at the same time, and they should all be looked at as a whole. The ones that I pull out in particular are, for example, to be found in Section 71 of the Female Genital Mutilation Act 2003. There is still only a fine if you disclose identity, when really it is a very sensitive matter—but, for historical reasons, it remains just a fine. So too if you disclose the name of someone involved in slavery—it is also only a fine—and so too with witnesses in the context of youth justice, which also results in only a fine. All those cases are dealt with in a magistrates’ court. Those things, which are all sensitive and difficult, would be better dealt with in the round. It might be that, for one category of offences, it was thought that the maximum sentence ought to be more than two years, and for others two years, but you want to look at them as a package and reach a considered decision.

This is a worthy amendment, in one sense, but it should not be pursued. Instead, I urge the Government to bring on the review with the Attorney-General that has been promised, really get cracking on it, and look at all offences of the unlawful disclosure of witnesses’ names. I am sure that, if the Government’s officials have time after Christmas, they could draw up a list of all those categories pretty swiftly and get on with it, so they are all dealt with as a whole. I call on the Minister to give appropriate assurances in that respect.

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[Baroness Chapman of Darlington (Lab)]

I am grateful to noble Lords, and particularly to the Minister for his comments in response to the amendments tabled by my noble friend Lord Ponsonby.

On Amendment 78A, clearly it is right that mitigating factors are taken into account and that remorse, guilty pleas and assistance with prosecution are considered; no one is arguing anything to the contrary. However, I put it gently to noble Lords that it is important that sentencing adapts as attitudes in society evolve. I suggest to those noble Lords who were so outraged that we might want to change the system with regard to rape that attitudes towards that crime have changed. That is a very good thing and we should welcome it. However, public confidence in how rape is handled is in crisis.

All rape is violent, often with life-changing consequences for the victim, and we will continue to press the Government on this. I am pleased that women are speaking up with confidence and demanding this kind of change. Speaking personally—although I know that is not something you can properly do from the Dispatch Box—I find the frequent emphasis in this discussion on the idea that there are different degrees of rape, that “There’s rape and then there’s rape”, troubling. As I say, though, we will return to this in future because the women of this country will demand that of us.

[Viscount Hailsham (Con)]

On the question of a spectrum of culpability, does the noble Baroness not realise that the sentencing guidelines take that as their premise? That is why the spectrum in custodial sentences is between four and 19 years, because the sentencing guidelines recognise that there is a broad spectrum in culpability and that, as well as aggravating circumstances, there can be mitigating circumstances.

[Baroness Chapman of Darlington (Lab)]

Of course I realise that; I have read the sentencing guidelines. All I am saying is that attitudes in the country outside this House have changed, and the view of a minimum sentence of four years, as opposed to a minimum of seven, is changing, and we are reflecting that in our amendment. That is the point that I am making. I beg leave to withdraw the amendment.

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[Lord Garnier (Con)]

I think the last point made by the noble and learned Lord, Lord Judge, needs to be said often and loudly. The noble Lord, Lord Blunkett—I praised him in Committee—was brave enough to admit that this form of sentence was wrong. My noble and learned friend Lord Clarke of Nottingham abolished it when he was Secretary of State for Justice, but we are left with what I may call the detritus of this admitted mistake. What we must do now is clear it up. We have got rid of the sentence. As the noble and learned Lord said, it is no longer available. We are left with, as the noble and learned Lord, Lord Brown, just pointed out in a highly effective speech—and in Committee —hundreds of people remaining in prison long beyond their punishment tariff and others, as my noble friend Lord Moylan pointed out, on licence well beyond any sensible period.

I am a signatory to my noble friend’s amendment but, as I said in Committee, I could have signed any of the amendments to do with reforming IPPs. I say, as both a Member of this House and as a fellow trustee of the Prison Reform Trust with the noble Lord, Lord Bradley, that we have got to the stage now where nobody who has sense of justice or common sense could defend what we now have. All we are looking for is a way in which the Government can complete the task that my noble and learned friend Lord Clarke began when he was Secretary of State for Justice and which for some reason has not been completed in the eight or so years since the sentence was abolished.

Now is the time. If we are to have a Bill as huge as this, let us make good use of it by adding into it just provisions that do justice and which prevent men and women being incarcerated or on licence still for no very good reason. If I may say so, let us also get rid of this provision that is not doing the victims of their crimes any good either. Victims of criminal activity want justice both for them and for the defendant, but this is not justice for either the defendant or the victim.

[Viscount Hailsham (Con)]

My Lords, I rise briefly to support all three of the proposed new clauses, most particularly those proposed by Amendments 79 and 80. Looking back on my time in Parliament—nearly 40 years now—I think this was the most unfortunate decision taken in the criminal system. I pay tribute the noble Lord, Lord Blunkett, for coming to this House and putting before us his proposed new clause. Indeed, I pay tribute to the noble and learned Lord, Lord Brown, for his proposed new clause as well. A huge injustice has been done; as a parliamentarian, I view our contribution to it with a great sense of shame and embarrassment.

At the end of last week, a prisoner wrote to me to tell me that he had a tariff of two years imposed on him and has now served 14 years. I do not know the detail of his case but it is deeply troubling that that happened. In fact, I have referred his letter to the chairman of the Parole Board; I very much hope that she will look into it carefully. I can do no more. However, the truth is that the proposed new clauses before this House give us an opportunity to move forward. My belief is that they do not go anything like far enough, but we have to take the steps that are available.

I hope that my noble friend the Minister will respond sympathetically to the issues raised. I must say, if the opinion of the House is sought on any of these proposed new clauses, I will support them.

[Lord Beith (LD)]

My Lords, I certainly want to hear what the Minister has to say because I will go home very uneasy indeed if I pass up the opportunity for a vote to make it clear that this House rejects the system that has developed into a gross distortion of both our justice system and our sense of values about the circumstances in which someone can be incarcerated and those in which they are entitled to recover their freedom. We cannot tolerate this continuing. There is a hope that the Minister will say things that will enable us to feel that we are making some progress, but some of us will not sleep well tonight if we leave this place without being sure that some progress will be made.

Police, Crime, Sentencing and Courts Bill

Viscount Hailsham Excerpts

Lords Hansard - Part 1 & Report stage
Wednesday 8th December 2021 Lords Chamber

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)]

My Lords, it is my pleasure to open the debate on the Report stage of this Bill. I stand to add the proposed new clause, after Clause 2, as printed on the Marshalled List.

This amendment, known as Harper’s law, will impose mandatory life terms on those who are convicted of unlawful act manslaughter, where the victim is an emergency worker who is acting in the exercise of their functions as such a worker. The amendment will apply to adult offenders, and to 16 and 17 year-olds. As the House will see, it contains a judicial discretion for the court to impose an alternative sentence in exceptional circumstances.

It may assist noble Lords if I provide a brief overview of manslaughter—I do not propose to turn this into a lecture—and the manner in which this amendment will work. The amendment applies to those convicted of manslaughter, but the proposed new Sections 258A(4), 274A(4) and 285A(4) of the Sentencing Code are provisions to explicitly exclude those convicted of gross negligence manslaughter, as well as those convicted of manslaughter following a successful partial defence to a charge of murder—for example, manslaughter by reason of diminished responsibility, loss of control or in pursuance of a suicide pact. As a result and by process of statutory elimination, the provisions will apply only to those who have been convicted of manslaughter by an unlawful and dangerous act, more commonly referred to as “unlawful act manslaughter”.

The Government are making this amendment following the death of PC Andrew Harper in August 2019. I am sure the House is familiar with the horrific facts of that case. PC Harper was responding to reports of the attempted theft of a quad bike. He suffered fatal injuries when he became caught in a strap trailing behind a getaway car and was dragged behind it. At their trial in July 2020, PC Harper’s three killers were acquitted of murder but were all convicted of unlawful act manslaughter.

The jury was therefore satisfied that the unlawful and dangerous actions of the defendants, namely the plan to steal the quad bike and then escape apprehension by whatever means possible, including driving dangerously along winding country roads, amounted to manslaughter. The court did not impose life sentences on any of the defendants. Each received sentences of between 13 and 19 years for the manslaughter of PC Harper, sentences that were subsequently upheld by the Court of Appeal. They will therefore all be incarcerated for a significant period. But the Government believe that, where a person is convicted of unlawful act manslaughter, and the person who has been killed is an emergency worker acting as such, that should be punished with life imprisonment.

The court will be able to impose a different sentence where there are exceptional circumstances. As covered in Committee, that term is already used in law and is deliberately undefined in legislation to allow for interpretation and application by the court. This will ensure that the court can apply a different sentence where justified, such as where there are exceptional circumstances relating either to the offence or the offender.

The successful campaign of PC Harper’s widow Lissie Harper and the Police Federation drew this issue to the Government’s attention, but this was not an isolated incident. While, thankfully, emergency workers are not often killed on duty, they are required to put themselves at particular risk when carrying out their duties and protecting the public. As is often said, they run towards the danger when others run away from it. I therefore beg to move Amendment 1.

[Viscount Hailsham (Con)]

I rise to express my grave concerns about this new clause, which I hope will not be enacted, although I am bound to say that I am rather pessimistic about that.

I will begin by saying something about procedure. I regret that this new clause is being brought forward on Report. The formal announcement of it was by way of a press release on 24 November this year. As the Minister has said, the new clause was triggered by the very distressing case of the killing of PC Harper. We need to keep in mind that the relevant trial took place in July 2020, and it came before the Court of Appeal for consideration in December that year. I suggest that it is hard to see why the new clause could not have been introduced in the House of Commons or, if that were not possible, in Committee in this House. In either event, there would have been a greater opportunity for discussion, both inside and outside Parliament.

All of us will have the greatest sympathy for PC Harper’s wife and family. However, we should be very cautious about legislating as a consequence of a single case or even a number of cases, however distressing they may be. I have referred to the trial in 2020 and the decision of the Court of Appeal in December that year. My noble friend referred specifically to them. In both those cases, very serious and detailed consideration was given to the appropriate sentence, and, as my noble friend has said, the Court of Appeal rejected the submission of the Attorney-General that, in the case of the defendant Long—the most culpable of them—the sentence should be increased to a life sentence.

I suggest that anyone who studies the judgments of the courts, together with the guidelines of the Sentencing Council—the relevant ones were published as recently as November 2018—will be satisfied that the existing law makes proper provision for the punishment of offenders convicted of serious offences of manslaughter and gives proper protection to emergency workers.

As your Lordships will know, manslaughter covers a very broad spectrum of culpability, extending from the very serious—the killing of PC Harper is an example of this—to many things that are very much less serious, such as a single blow that fells an individual, who strikes his head on the pavement and dies. In all conscience, that is an act of common assault, although the consequences are dreadful.

In the case of PC Harper, the trial judge stated that, had the defendant Long been a few years older— he was 19 at the time of the trial and 18 at the time of his offence—he would probably have been given a life sentence. So we need to be clear about this. A life sentence is already available for serious cases of manslaughter, where the trial judge, who has heard all the relevant facts, thinks that such a sentence is appropriate. Your Lordships are being asked to approve a mandatory life sentence in circumstances in which the trial judge might otherwise determine that one is not appropriate. I am deeply uncomfortable with that, especially when I consider the broad spectrum of culpability that arises in manslaughter cases.

Consider a police officer who intervenes in a street brawl, in or out of uniform—it might be a plain-clothes officer. The officer is struck by a single blow or trips in the course of a scuffle. He or she falls, hits their head on the pavement and dies. If the deceased person had been a civilian killed in such circumstances, the court would impose a relatively modest determinate sentence, but, in the case of the police officer and subject to the subsection (2) provisos, which I will shortly mention, the court would have to impose a life sentence. I do not believe that that can be right.

I said that I would speak briefly, if your Lordships would allow me, to proposed new subsection (2), which was briefly referred to my noble friend the Minister. Subsection (2) refers to the exceptional circumstances that relate to the offence or the offender and make it just not to impose a life sentence. The question that arises and must be considered is: what does that mean? Does that mean that, if the judge thinks that the offence falls at the lower level of culpability, a modest determinate sentence can properly be imposed? If that is the case, what is the purpose of the new clause? If such a discretion is not available to the trial judge, it is surely inevitable that injustice will happen on occasions.

At that point, we come to a related matter. We are talking here about not “whole life” cases but life-sentence cases in which a trial judge must impose a custodial tariff. Is the trial judge entitled under these provisions to set a modest determinate tariff in order to address a low level of culpability? If that is the case, what is the point of the new clause? If it is not the case and the trial judge may not impose a modest tariff, it is extremely unjust.

I have one final point, and I acknowledge that it is about drafting. Consider the following circumstances, which fall within proposed new subsection (3)—I will not read it out because it is on the Marshalled List and I do not want to detain your Lordships’ House. An off-duty officer in plain clothes, whose identity as a police officer is not apparent, intervenes in a street brawl or seeks to apprehend a fleeing thief. In the scuffle, he or she falls over, hits their head and dies. Is it right that, in those circumstances, such a defendant should automatically face a life sentence, unless the subsection (2) provisos apply?

I am profoundly uncomfortable with this new clause, and I would like to think that it will not pass.

[Baroness Butler-Sloss (CB)]

My Lords, I share the serious concerns of the noble Viscount. Given the degree of pressure that the Government have been under, understandably, after the shocking death of the police officer, they may have strayed too far into imposing upon the judiciary something that is not necessary, in my view. If they remain concerned about the extent to which the Sentencing Council may not have properly reflected the seriousness of an emergency officer being killed, it is perfectly simple to ask it to reconsider this. I suspect that, in the light of PC Harper, it might well do so.

Following what the noble Viscount has just said, I am particularly concerned about the off-duty, plain-clothes police officer, fireman or anybody else who intervenes—very properly, feeling it is his or her duty—and suffers a fatal injury. The situation is as the noble Viscount said: it really does go too far. I understand very well why the Government think it needs to be done, but I wish they would reflect on this, and think again before it goes back to the House of Commons.

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[Lord Wolfson of Tredegar]

My Lords, with genuine respect, the noble Lord is wrong if he thinks that that is what I have said. Let me be clear: if there are exceptional circumstances, the judge is entitled to depart from the sentence. In other words, the judge does not have to impose the life sentence. The judge will then decide what sentence to impose. With the greatest respect, I was right to say that if there are exceptional circumstances, the life sentence does not apply. If there are no exceptional circumstances, the life sentence does apply, and the judge will then set a relevant tariff.

[Viscount Hailsham (Con)]

But does not all of this imply that we are really not serving any purpose by the new clause, partly because of the point made by the noble Lord, Lord Carlile, and also the point conceded very fairly by the Minister to the effect that the trial judge can impose in reality a very low tariff? So the question is, what is the point?

[Lord Wolfson of Tredegar (Con)]

My Lords, I have explained that. There is a difference between being given a life sentence with a 10-year tariff and being given a sentence of 10 years. That is a point that we all accept in the case of murder.

[Viscount Hailsham (Con)]

That is true, too, but the case of murder arises from the original bargain made with Parliament and the country at the time when capital punishment was abolished. That does not apply as an argument to what we are doing now.

[Lord Wolfson of Tredegar (Con)]

My noble friend is absolutely right to say that that is the origin of the life sentence for murder. It was a deal done, if I can put it in those respectful terms, but we have life sentences elsewhere in our legislation as well. The point that I was seeking to answer—and, with great respect, I think I have answered it—was, as I understood it when it was put against me: what is the difference if the trial judge is going to give a tariff of x years, why not just have a sentence of x years? However, there is a difference, as we all recognise, between a life sentence with a tariff of x years and a sentence of x years. We can have a debate—

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[Lord Wolfson of Tredegar (Con)]

In the last week, as is my wont, I have had discussions with a number of Members of this House on this matter. Any Member of the House knows that my door is always open to them, metaphorically and often literally. All the discussions that I have had on this amendment have been ones that I have reached out to others to have. Nobody has knocked on my door. In those circumstances, I cannot say that we will adjourn. If I am told differently, that will be for others to decide. At the moment, I will ask the House to vote on my amendment.

[Viscount Hailsham (Con)]

My Lords, I hate to intervene on my noble friend but I will formally move that the House be adjourned for one hour.

[Lord Wolfson of Tredegar]

My Lords, I ask the House to vote on my amendment.

Motion

Moved by

[Viscount Hailsham]

That the House do adjourn for one hour.

[Viscount Hailsham]

I beg to move.

Police, Crime, Sentencing and Courts Bill

Viscount Hailsham Excerpts

Lords Hansard - part one & Committee stage
Wednesday 10th November 2021 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, taking that last point first, one of the glories of our system is that the drafting is done by parliamentary counsel, and I will not criticise the way it has been done. However, I agree with the underlying point made by the noble Lord, Lord Paddick, that legislation ought to be—

[Viscount Hailsham (Con)]

Comprehensive.

[Lord Wolfson of Tredegar (Con)]

I was going to say “comprehensible” but that is a pretty high test— perhaps “as clear as good legislation can be”. I have to leave at least some space for my former colleagues at the Bar to have a career; if we make it too precise, we will do people out of a job. However, there is a serious point here, and I agree with the noble Lord, Lord Paddick, that legislation should be as clear as possible. I will set out what the words are seeking to do, and if it is thought that there is a better way of putting them to get to the same result, obviously, I will be happy to hear it. However, let me explain what they seek to do.

Clause 86 sets out the provisions of PACE and the modifications required to them that will apply upon arrest for failure to comply with any condition attached to a diversionary caution. The purpose of the clause is to ensure that the diversionary caution operates effectively within the existing framework of police powers; it mirrors the approach taken in the Criminal Justice Act 2003, which gives the police powers of arrest for failure to comply with the existing conditional caution.

The subsection of this clause ensures that someone arrested and detained by the police is subject to the same treatment as any detained person, and periodic reviews of their detention are carried out. Obviously, that is important. The same subsection also contains modifications to put specific matters in the Bill: the power to detain those who are unfit to be dealt with at the time of arrest; the power of arrest for detainees bailed for any breach—that is, non-compliance; and the power to search a detainee in police custody following arrest.

The modifications make specific reference to the diversionary caution. For example, the PACE power to search and examine a detainee to ascertain their identity is modified to ensure that the power will still exist where a detainee has failed to comply with any of the conditions attached to the person’s diversionary caution. Therefore, it provides—I was going to say “clarity” but perhaps that might be pushing the point a little—that these powers apply only to the diversionary caution and not also to the community caution, where there is no power of arrest or prosecution for non-compliance. That is why Clause 86(4) is needed. Without the necessary PACE provisions as modified, the powers for police to deal with breaches of a diversionary caution would be limited and that would undermine the effect of non-compliance with the conditions.

I do not know whether what I have said has reassured the noble Lord, Lord Paddick, that the clause is properly focused. I hope that I have explained what it is trying to do. I am not being flippant and I do appreciate that legislation needs to be as clear as possible and that it is important that people understand what it encompasses. However, when one is legislating against the background of other legislation, it can be quite difficult to do it other than by cross-references back. If there is a better way to achieve the same result without adding pages and pages, I should be very happy to hear it, but I hope that I have explained what the clause is focused on and why it is drafted in the way it is. I therefore invite the noble Lord to withdraw the amendment. However, I am happy to discuss this matter between us if there is another way of doing it.

Police, Crime, Sentencing and Courts Bill

Viscount Hailsham Excerpts

Lords Hansard - part two & Committee stage
Wednesday 10th November 2021 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I have to agree with the three Members of the Committee who have just spoken. I will deal with the two proposals in turn, first that relating to children and their convictions being spent when they turn 18. That is absolutely compelling as an argument. I have just one thing to add: there is a huge differential in the experiences of different children in our communities. For example, there are looked-after children—the state not being the best parent—who will be prosecuted and will attract convictions, before their majority, for bad behaviour that simply does not get prosecuted when a child behaves in that way in the family home. This could be common assault or criminal damage. It is common practice for looked-after children to be in the criminal justice system in circumstances where their peers elsewhere would not. To not to get a second chance on turning 18 is a terrible indictment on our society.

I encourage the Minister to take the expert advice from the noble and learned Baroness, Lady Butler-Sloss, and the noble Lord, Lord Carlile, with all his experience of penal reform, and to do something about this. Things are compounded still by there being no right to be forgotten when it comes to the internet. The law has to push back even harder to try to rehabilitate people, particularly children, in the light of so much of our lives and our histories being on the internet.

I shall respond briefly to the noble Lord, Lord Paddick. A non-court disposal administered initially by a police officer should be immediately spent, as a matter of good practice but also as a matter of principle. If someone has given up the opportunity to have the matter dealt with in court, that should happen in many cases. However, there should be a benefit, and that should be that the disposal is immediately spent. It is an incentive to engage with it, but it is also right in principle. The Rehabilitation of Offenders Act 1974 was a wonderful thing, but we are a long way from its ethos and principles. It has been undermined by an exemption order that has grown, in my experience, every year and it has been undermined by the growth and rise of the internet. This Committee really needs to listen to the noble Lords, Lord Carlile and Lord Paddick, in their proposals, and push back very hard in the opposite direction.

[Viscount Hailsham (Con)]

My Lords, I will make a very brief point in support of what has just been said by the noble Baroness and the noble and learned Baroness. There are a number of professions where you have to establish that you are a fit and proper person. I act as a legal assessor to the Nursing and Midwifery Council, and I am aware of the registration process: you have to assert that you are a fit and proper person. I can see that a caution of the kind that we have been discussing might stand in the way of a registration being effective, and that would be a great tragedy.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank the noble Lord, Lord Paddick, for tabling his amendment. As we have seen through this debate, it has inspired many contributions on a wide range of points about whether and when a caution should be spent: after three months or immediately when the caution is given.

I remember sitting on the Michael Sieff Foundation report, and our discussions about whether all youths should effectively have their criminal records expunged unless there were particularly serious matters in there. I also remember debating that point very well, because I was sceptical about it at the time. The argument that I found most convincing was from the lady who was an academic helping us. It was based on the inadequacy of the record-keeping system for having any sort of differentiated approach for expunging a criminal record. It is really much better and more reliable to expunge the lot unless there are extreme reasons not to. That way gave young people the best chance of getting a good job and starting their career.

All noble Lords who spoke in this debate made interesting points. My noble friend Lady Chakrabarti made one particular point about the record-keeping of the internet. This is a huge issue; the internet does not forget. Of course, employers make their own checks through the internet, whether or not they have been given permission to. In my experience, young people are conscious of this and spend a certain amount of time editing their internet history to make sure they get any job they are offered. That is a flippant point. Nevertheless, this was an interesting debate and I would be interested to hear the Minister’s reason for why a caution should not be spent at the time it is given, rather than after three months or whatever period it was. I too had the briefing from Transform Justice, which made a good case, so I look forward to the Minister’s response.

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[Lord Wolfson of Tredegar (Con)]

My Lords, these amendments, which I am grateful to the noble Baroness, Lady Massey, for putting down, all relate to custodial sentences for children. There were one or two points that she made that I shall perhaps respond to when we get to group 9, because there is a little bit of an overlap with some of the points there. I hope that she will forgive me if I respond to some of the points then, but I shall seek to respond to the majority now.

As the Committee will be aware, there is a separate and distinct sentencing framework for children. When sentencing children, the courts have to take into account two statutory considerations: the principal aim of the youth justice system, which is to prevent offending by children and young people, and the welfare of the child. I hope that overlaps with some of the points made by the noble Lord, Lord German, emanating from the Sentencing Council.

Although, therefore, custody should always be a last resort for children, there will be some cases where it is necessary, and we believe that the court is best placed to determine the appropriate sentence. But those who commit the most serious offences, and who pose a risk to the public, should serve an amount of time in custody which reflects the seriousness of their offending.

Against that background, let me go through the relevant clauses and amendments. Clause 101 relates to—and I underline this point—minimum sentences. The noble Baroness, Lady Jones of Moulsecoomb, on a few occasions referred to “mandatory” sentences. The clause is not headed “mandatory sentences”; the words “mandatory sentence” do not appear in this Bill, except in one place, Clause 101(8), which refers back—it is a pity that the noble Lord, Lord Paddick, is not in his place, because we have a nice piece of parliamentary drafting here—to Section 399(c) of the Sentencing Code “(mandatory sentence requirements)”, but that refers to a minimum sentence where the conditions set out in the clause do not apply.

I have two points to make in this regard. First, minimum sentences are not mandatory in the sense that they must be imposed. They are a mandatory consideration that the court must make before passing a sentence unless the provision in the sentence is met. Secondly, the Bill does not introduce minimum sentences for under-18s for the first time. Offenders aged 16 or 17 are already subject to minimum sentencing provisions if convicted of threatening with a weapon or bladed article, or a repeat offence involving a weapon or bladed article.

The threshold for courts to depart from imposing a minimum sentence is open to them, the question being whether the test is met. This amendment aims to ensure that the change in the threshold will not apply to offenders aged 16 and 17 who are convicted of these two offences. In Clause 101 we seek to ensure that courts depart from the minimum sentence only in exceptional circumstances.

[Viscount Hailsham (Con)]

My noble friend clearly is right when he says that this is not a mandatory sentence, but does he accept that the purpose of this clause is to ensure that in the generality of cases, a custodial sentence is imposed?

[Lord Wolfson of Tredegar (Con)]

The purpose of a minimum sentence is that unless the threshold is met—we will debate in another group what that threshold should be—the minimum sentence is imposed. There is nothing between us on how it works; there obviously is on whether it is a good idea. I hope that is fair.

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[Lord Wolfson of Tredegar (Con)]

The point I am making is very important and we will get to it in another group. I absolutely accept that people use “mandatory sentence” in a common parlance way, but when we get to a later group, we will discuss what the test should be. I will not delay the Committee now, but the figures for when the minimum sentence is not actually imposed are surprising. People using the phrase “mandatory sentence” would be surprised to hear that in a third and sometimes nearly half of cases, the minimum sentence is not given. If “mandatory” does not apply in a third of cases, I question whether it is the appropriate word. Therefore, we must bear in mind that we are dealing with a minimum sentence with a provision, whether that is “exceptional” or some other test. I certainly do not seek to criticise the noble Baroness, Lady Jones, for using the shorthand. I wanted to point out that it is a shorthand which can be misleading when one looks at the facts as to how such sentences are imposed.

[Viscount Hailsham (Con)]

What is the essential difference in my noble friend’s mind between exceptional and particular circumstances? Is not the truth of the matter that he wants the default position to be a custodial sentence, whereas there was greater discretion to the judge when the particular circumstances were what the law was to consider?

[Lord Wolfson of Tredegar (Con)]

As I say, there is a specific amendment on that point, so I will come to this in more detail then, if I may. The question is about when you depart from the minimum sentence. We are dealing here with the scope of the exception—that might be an unfortunate word, because one of the words we are using to qualify the exception is “exceptional”—and whether the exception is in circumstances which are just in the case, which I think is the gist of one of the amendments in a later group, or exceptional circumstances. I absolutely accept that one has a minimum sentence, which we can call the default, with an exception. It is always for the judge to decide, looking at the offence and the offender, whether the test is met. I will come in a moment to the words “exceptional circumstances” in particular.

What we want to do, to underline the point, is to ensure that courts depart from the minimum sentence only in exceptional circumstances. That reflects the seriousness of the offences and the risks posed to others. We believe that will create greater consistency in the statutory provisions on minimum sentences which apply to other offences. This change does not mean—

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[Lord Wolfson of Tredegar (Con)]

I am really not sure that we are saying anything different. As I said, we will come in a later group to how many offenders do not get the minimum sentence with some sentences. There must come a point at which so many offenders do not get it that using the word “mandatory” to describe it is itself misleading. I suggest we are better off sticking to the terms used in the Bill, which are both accurate and appropriate.

I underline the point that the change we are proposing does not mean that all 16 and 17 year-olds will receive the minimum sentence. The courts will retain the discretion not to apply the minimum where there are exceptional circumstances which relate to either the offender or the offence and which would justify doing so.

[Viscount Hailsham (Con)]

That is out of the ordinary. It is a high threshold.

[Lord Wolfson of Tredegar]

I will come in a moment to the word “exceptional” as I think that was the point made by the noble Lord, Lord German. I have been a little diverted on the way, but we will get there.

What the courts will therefore do is to continue to take the child’s welfare needs into consideration. I also point out, of course, that the actual minimum sentence for 16 and 17 year-olds, when given, is shorter than that for over-18s when given: four months as opposed to six months. Applying minimum sentences to 16 and 17 year-olds—the older cohort of under-18s—recognises the increased maturity and development of this age group compared with younger children. Any custodial sentence is given as a last resort, but we believe that for older children who commit these particular offences, it should be mandatory for the court to consider carefully whether a custodial sentence is appropriate.

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[Lord German (LD)]

Can the noble Lord tell me the difference, then, between the current words, which are “particular circumstances”, and those that the Bill is proposing—“exceptional circumstances”? What is the difference between “particular” and “exceptional” to the fraternity of judges and lawyers who do not need it written down because they all understand it? For those of us who are non-lawyers, some definition would be helpful.

[Viscount Hailsham (Con)]

It is a higher bar.

[Lord Wolfson of Tredegar (Con)]

I hear the words, “higher bar”. I do not disagree that “exceptional circumstances” is a stricter test. There is case law on that, although the name of the case has slipped my mind, but I am happy to write to the noble Lord, Lord German. I see that the noble and learned Lord, Lord Judge, who may remember, is here. I am sorry to give him exam questions. “Exceptional” is a word that has been passed and interpreted by the courts at a high level. It is proper to leave it to them to decide what “exceptional circumstances” means. However, I will write to the noble Lord with the case law, once my memory comes back to me.

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[Lord Judge (CB)]

My Lords, I sometimes wonder when I read statutes that make provision for sentencing whether those who are responsible for the ideas behind them or those responsible within the department have any idea how difficult it is to pass a sentence. It is easy in a debate like this to talk about two years, three years, seven years, probation or whatever it might be, but it is not like that in the real world. When we have to consider minimum sentences—and I love the semantics about whether we are talking about an obligatory minimum sentence or mandatory sentence subject to exceptions—the ultimate requirement for a sentencing judge is to pass a just sentence. That is why I support the amendment in the name of the noble Lord, Lord Marks.

I am sorry that I am going to take time about this, but there are perhaps four ingredients of a sentence that we now have to consider. One is societal attitude to the crime. Judges get that from what Parliament says that the maximum sentence must be. Dangerous driving causing death, in my lifetime, has gone from two years to five years, 10 years, 14 years and now life. That is Parliament reflecting the seriousness with which society, reflected by Parliament, sees the crime. That always works in the sentencing process. On the rare occasions when a maximum sentence is reduced, as it was with theft, from seven years to five, that too is reflected in the sentencing requirements. However—and although I am used to it, it is no less pernicious—there is the minimum-term idea. Parliament has willed it to be so, and a judge has to be loyal to the Act of Parliament and the oath that he has taken. There it is: forget the semantics, but the starting point is X, and you can move from X only if circumstances permit it, which are now being elevated into “exceptional”.

But that is only the starting point. There is the actual crime itself. Is it a very bad case of its kind or not? This is of particular importance when using “exceptional”. There are many cases where more than one defendant is involved, and sometimes the sentencing judge has in front of him a gang. One member of the gang is a gullible gopher, the person chosen because he is a bit thick, who goes along with it. Do we start with him, with the same minimum sentence as all the others in the same gang? Yes, says this provision, unless it is exceptional. Then we have to remember the victim—the impact on the victim, how it has affected him or her, how long the awful or relatively minor effects will affect that person and how strong, weak, troubled or so on the victim may be. Then there is the defendant. Every single defendant is an individual. On one hand you have the gopher, while on the other you have the sophisticated criminal who does these crimes as a matter of ordinary employment.

My goodness, I could give noble Lords a lecture on this issue, I am not going to because I do not lecture the House, but I am looking at the Minister and members of his department when I use that word. All those ingredients go into making a sentencing decision, and the sentencing judge struggles to balance all of them, because there is a huge conflict on every occasion. If you introduce a minimum term, you have changed the nature of the exercise, which is not to decide in the light of all the ingredients of the defendant, the victim and the crime itself, because you have added a minimum term. The possibility that a judge should be required to pass a sentence that he or she regards as an unjust sentence on a particular individual in a particular case for a particular crime is really rather—I must moderate my language—appalling. A judge should never have to pass a sentence that he or she conscientiously regards as unjust. That is what is wrong with this provision.

[Viscount Hailsham (Con)]

I support the amendment proposed by the noble Lord, Lord Marks, for very much the same reasons advanced by the noble and learned Lord, Lord Judge. I very much favour the preservation of a judicial discretion; it is absolutely essential.

I worry very much indeed about sentencing inflation. When I was at the Home Office working as a Parliamentary Under-Secretary at the back end of the 1980s, I was a Prisons Minister. At that time, the prison population was around 40,000; it has now doubled—it is well into the 80,000s. Are the streets any safer? Does the community feel safer? The answer to that is manifestly that no, it does not.

The noble Lord, Lord Marks, is utterly right when he says that longer sentences mean more people in custody. What is the consequence of that? If you pack people into prison, there is overcrowding and the chances for rehabilitation and retraining are greatly diminished. I know that from my personal experience: for three years or so, I was on the monitoring board of a local prison near me in Lincolnshire—actually, it was just over the border—and the chances of prisoners getting proper courses were very small, so the chances of rehabilitation were thereby much diminished.

The purpose of this clause is to ensure that, in the generality of cases, a prison sentence is the starting point. That is what is intended by using the phrase “exceptional circumstances” as the proviso. That is to say that it will be disapplied in a small minority of cases. The noble and learned Lord, Lord Judge, made a very important point that we need to keep a grip on: exceptional circumstances may not exist, but the sentence could be unjust. So the noble and learned Lord is in fact saying to this Committee—and he is absolutely right—that the impact of the Government’s proposals is to drive the judiciary in particular cases to impose a sentence that they know to be unjust, because they cannot find exceptional circumstances. I find that wholly deplorable.

The amendment from the noble Lord, Lord Marks, enlarges judicial discretion to make it more in accordance with the principles of natural justice. I very much favour that, and I hope that the Committee will do so as well.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, in the light of what my predecessor as Lord Chief Justice, the noble and learned Lord, Lord Judge, has said, I can be very brief.

First, I wholeheartedly agree with him. Secondly, I do not think that we should beat about the bush at all about the change to the word “exceptional”. Any lawyer knows that the intention is to raise the bar significantly. You use that word only when you want to try to minimise the discretion or ambit of when it is to happen. I hope that the Minister will accept the clear intention of the change and answer the question posed in the earlier debate by the noble Lord, Lord German, about the difference. There is a clear and obvious difference.

Thirdly, having had a little less time as a judge and coming to the job a bit later, I can see an argument, which one has to accept, for saying that, by setting a minimum term, Parliament is giving an indication of what it thinks is appropriate. Perhaps that was not the right road to go down, but we have gone down it. But where this Government are wholly wrong—I do not think that we should mince our words about that—is in saying that a judge should impose a sentence that is not just. In refusing this amendment, the Government are saying, “We don’t care if injustice results: you must look at the circumstances, and if they are not exceptional” —a high bar—“you must impose an unjust sentence”. Have we really sunk so low as to require our judges not to do justice?

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The fourth thing in the group is whether Clause 103 should stand part. Clause 103 would make it possible for judges to impose a whole life order on offenders aged 18 to 20. We have touched on this in previous groups. We think a whole life term should be imposed only on somebody who is 21 or over—somebody unequivocally an adult—for all the reasons that have been debated before. We have very considerable doubts about that clause. I was going to say that I would wait for the noble Baroness, Lady Massey, and the right reverend Prelate the Bishop of Derby to talk about it, but I will be waiting for a very long time, so I have made clear my position in relation to it.

[Viscount Hailsham (Con)]

My Lords, I have a feeling I am going to be in a minority in this Committee. As much as I like and admire the noble and learned Lord who has just spoken, I disagree with at least two of his amendments. I disagree with Amendment 195 on the minimum sentence for rape, partly because of the general point that I have made about judicial discretion already, which I am not going to repeat, and partly because—I draw now on my own experience as a criminal barrister; perhaps not a very distinguished one, but I was a genuine lawyer for quite a long time —rape is a broad spectrum of offence, from ones which one can comprehend to the truly awful. There is a spectrum here, and it is wrong to fetter the judicial discretion to the point envisaged by this amendment.

The other amendment I do not agree with would make the murder cases of the class described by the noble and learned Lord in Amendment 197 a whole life offence. I personally shrink from whole life sentences if they are mandatory. There are many cases where they are proper, but I would leave it to the judge. I very much dislike the concept of sending lots of people to mandatory whole life sentences with no prospect of rehabilitation.

[Lord Falconer of Thoroton (Lab)]

The noble Viscount may be assuaged by the fact that what I am talking about is the starting point. Therefore, it is not a mandatory whole life term, it is a mandatory life sentence, and it is for the judge to indicate what the position is. The effect of my amendment is to say that the starting point is a whole life term.

[Viscount Hailsham (Con)]

We have been here before in previous debates. The effect is to make it mandatory unless there are some very powerful arguments against. If the noble and learned Lord will forgive me, having read his Amendment 197, I recognise that in many cases falling within that classification a whole life sentence would be appropriate: abduction, yes, murder, of course, but sexual assault? One needs to keep in mind that is a fairly broad offence from the relatively trivial to the very serious. I am not at all happy about including that as a triggering element which makes the whole life sentence the starting point. But I know I am in the minority on this point and the Committee will doubtless take a different view.

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[Viscount Hailsham (Con)]

My Lords, I support the purpose of this proposed new clause. It is highly desirable that there should be a judicial intervention in the process. The arguments of principle have been articulated by the noble Lords, Lord Carlile and Lord German, and so I will not repeat them, but I will make one or two points about the provision in the Bill and the proposed new clause.

First, the noble Lord, Lord Carlile, expressed concern about the circumstances in which the Home Secretary might form the requisite opinion, and set out his reasons; and he was right to. If I may, I will share with the Committee my experience when I was at the Home Office at the back end of the 1980s. I am well aware that the procedure is wholly different, but I have a fear that it will be replicated in this instance.

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[Lord Wolfson of Tredegar (Con)]

I do not want to give an incorrect answer to the noble Lord. I know that there are different codes of practice and different sets of procedures in various parts of the Bill. Can I get back to him in writing on that point, so that the Committee knows where it is before Report?

[Viscount Hailsham (Con)]

On a related point—the obligation on the Secretary of State to give reasons—how detailed should those reasons be? Will there be some published code which ensures that the Secretary of State complies?

[Lord Wolfson of Tredegar (Con)]

I have said that we will publish the principles which underpin the Secretary of State’s decision. The other point that I make in this regard, which goes to the adequacy of reasons point—it was touched on by the noble and learned Lord, Lord Falconer, with his experience—is that judicial review of the Secretary of State’s decision would be available. My noble friend will be aware from the case law as to the relevance of reasons in a case where the decision can be challenged by way of judicial review.

In light of what I have said, I hope that the Committee will appreciate that this mechanism, which we expect to be used only in rare instances, will prevent the automatic release of offenders whose risk becomes apparent only after they have been sentenced.

Let me make one point. I apprehended at certain points in the discussion that there was perhaps a misapprehension, which I should clear up: that one could detain the prisoner beyond the end of the sentence as handed down by the court. We are not talking about that. To be clear, we are talking about the period between the automatic release point and the end of the sentence.

Police, Crime, Sentencing and Courts Bill

Viscount Hailsham Excerpts

Lords Hansard - part one & Committee stage
Monday 8th November 2021 Lords Chamber

This amendment would give the police greater clarity about whether an offence of aggravated trespass had been or was about to be committed and assist those who are about to be or already have been subjected to the commercially damaging consequences of aggravated trespass. It does not outlaw protest; it does not make the holding of opinions about controversial matters of public debate against the law. It does not prevent anyone campaigning vigorously and noisily in favour of their own cause or against those to which they object. But, if a person wants to come on to the land of another to stop him doing what he objects to, he must be prepared to establish with credible evidence, and not just assert when prosecuted for aggravated trespass, that what he was deterring, obstructing or disrupting was against the law. If he is not prepared to show that the activity was unlawful, he should campaign to change the law through Parliament and demonstrate in the public space.

[Viscount Hailsham (Con)]

Can my noble and learned friend clarify the standard of proof? I assume that it is the civil standard for the accused person, namely the balance of probabilities. Would it be wise to include that in the Bill?

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[Baroness Chakrabarti (Lab)]

My Lords, there is so much to get through. First, I disagree with the noble and learned Lord, Lord Garnier; secondly, I agree with the noble Baroness, Lady Brinton, about the clause not standing part.

The noble and learned Lord, Lord Garnier, has partly pre-empted my concern regarding his Amendment 150. Some of us in this Committee and more generally in your Lordships’ House have an allergy to reverse burdens in the criminal law because they generally go against the golden thread of English justice: that it is for the prosecution to prove its case beyond reasonable doubt and not for defendants to prove their innocence. That is a general principle which some of us hold dear. The noble and learned Lord, Lord Garnier, is quite right that over many years that principle has been eroded.

He referred to a number of regulatory offences, which I take to be offences in a confined area of privilege. Regulatory offences are appropriate for activities that might even be licensed, such as driving a vehicle or practising medicine. Regulatory offences are not the right analogy to make with just going about your life, including as a citizen who seeks to protest against issues such as GM foods or climate catastrophe. Therefore, his analogy seems quite wrongheaded. From a human rights perspective, he is aggravating the pre-existing damage of the problematic offence of aggravated trespass.

Trespass and nuisance ought generally to be a civil matter. Trespass is usually dealt with and resolved between reasonable citizens without recourse to law. I believe in civil legal aid if necessary, even though it has been all but obliterated in this country, but neighbour disputes generally ought to be a matter between me and my neighbour, not a matter for the criminal law, unless what my neighbour is doing to me crosses a line that offends all in society. I have a general problem with criminalising the civil law, but worse than that, in the context of aggravated trespass—aggravated by the intervention of the noble and learned Lord, Lord Garnier—certain types of trespass are singled out for criminal treatment, are they not? It is not the trespass of my neighbour who is polluting my land or building on my land, cutting over the margins of the boundary for reasons of profit or greed. It is the trespass of my neighbour who comes on to my land to protest and obstruct—for example, an environmental protestor—because in doing damage to my land I am damaging the environment. Therefore, with respect, the noble and learned Lord, Lord Garnier, is once more prosecuting a culture war in which people he may or may not disagree with are being treated worse in relation to their freedom of expression or, potentially, their property rights, than those who choose to pollute the land, for example. In my view, that is a mistake.

Finally on Amendment 150—again, to be fair, this has been pre-empted by the noble and learned Lord—subsection (a), on the reverse burden defence, suggests that in the offence of aggravated trespass, it is for the defendant to prove that they were not trespassing. That is astonishing: it is like saying that in my defence for assault, I must demonstrate to the civil standard that it was not me who assaulted my noble friend—who was sitting there quite innocently until I metaphorically assaulted him.

That is really quite rich indeed, and shows the underlying thinking here: some people, whose opinions are clearly not considered worthy by some Members of this Committee, are to be guilty until proven innocent, and they seem, in this context, to be demonstrators. In the broader context, in this Part of the Bill, the guilty ones are of course Travellers—as a job lot. This was put so well by the noble Baroness, Lady Brinton, and I will not repeat her reasons, save to say that there is something so inherently unattractive about discriminating against a particular group. We have seen it in many societies, including in our own over so many years. I thought we were in a better place than this.

If people are committing burglaries, let them be prosecuted for burglary. If people are perpetrating nuisances, let them be dealt with like anyone else; there are burglaries in urban and rural areas and there are nuisances everywhere. Let everyone be dealt with equally. Please do not single out one of the most vulnerable minorities, in size, economic power and everything else; do not single out a particular community for less favourable, targeted and demonising treatment. That is essentially why I do not think that Clause 63 should stand part of the Bill.

[Viscount Hailsham (Con)]

My Lords, may I just intervene very briefly? I agree with the noble Baroness when she says that, in general, trespass should be a civil remedy. I am absolutely clear that she is right about that, but it is important to keep in mind that securing a civil remedy is not a rapid process: it really takes quite a long time to get the required order from a court. I represented a rural constituency for more than 30 years, and I know that the kind of trespass to which my noble and learned friend is addressing his amendment, which is encompassed in Clause 63, causes an immense amount of distress to the rural community. There is a very special reason to abrogate the general rule, which does of course make the civil remedy the appropriate one for trespass. I commend this provision to the Committee, subject to the amendment, on which my noble and learned friend is entirely right.

[Baroness Bakewell of Hardington Mandeville (LD)]

My Lords, I apologise to the Minister that I had to leave before the end of the debate on Wednesday due to the fear that I would not be able to get home.

I congratulate the noble and learned Lord, Lord Garnier, on this amendment, to which I have added my name. The noble and learned Lord set out his case very clearly: aggravated trespass interfering with farming activities should not be tolerated. Cutting hay versus planting GMO are some of the examples he gave. I am personally against GMO crops, but I would not support trespassers attempting to prevent this happening. There are other avenues for expressing views about the activity taking place. The freedom to express a view should not take the form of an illegal activity or aggravated trespass.

The noble and learned Lord, Lord Garnier, gives very powerful arguments, especially in relation to war crimes. There are others in this Chamber this afternoon far more knowledgeable on these legal aspects than me, including the noble Baroness, Lady Chakrabarti. I listened very carefully to the speech given on Wednesday evening by the noble and learned Lord, Lord Garnier, and have sympathy for the scenario he painted. It is right that the plight of landowners and farmers should be considered as part of the issues surrounding Part 4 of the Police, Crime, Sentencing and Courts Bill.

I also support my noble friend Lady Brinton in her comments on whether Clause 63 should stand part of the Bill. For a great number of years, Gypsy, Roma and Travellers have been stopping in what they consider to be their traditional resting places. They have done this often with the consent of the relevant landowner or farmer, and there has been little, if any, aggravation with local communities. They have sometimes stopped on common land, again with little impact. Over the years, landowners have changed, farmers have retired, and new tenants have come in. Attitudes have changed and what was once tolerated is no longer acceptable.

With no provision for smaller family groups in their habitual stopping places, encampments have sprung up in some unsuitable places, where farmers fear their stock and property may be at risk. Sometimes gates have been left open and stock escaped, to be rounded up later. Both these examples, and the more serious one that the noble and learned Lord, Lord Garnier, spoke about, are dealt with in this Part of the Bill. All this is inconvenient and there will often be rubbish to clear up after the Travellers have left. This is an inconvenience to the owner or tenant of the land, but is it really to be classified as a criminal offence?

If local authorities were to fulfil their obligations to provide sites for the Travelling community, both permanent and transit, the police, landowners and farmers would be able to direct the Travellers to these sites. Providing housing and accommodation is a legal requirement of local authorities, as is to plan for future numbers. It therefore follows that planning for Gypsy, Traveller and Roma sites should be part of this. The Minister, the noble Lord, Lord Greenhalgh, has reiterated several times that the Government are encouraging local authorities to do this. Just what does he mean by “encouraging”? It is a bit like the interpretation of “significant” in terms of causing nuisance and distress. Just how persistent are the Government in their encouraging?

Trespass has to be proved, and, certainly, aggravated trespass has to be proved to be an unlawful activity, but is it for the perpetrator to prove that they have done aggravated trespass? Either they were not trespassing on the land or they were committing aggravated trespass. Why has that got to be proved by the perpetrator? If the aggravated trespass has occurred, it is right that this should be dealt with properly. However, it is important that the causes relating to a classification of aggravated trespass have to be of a very serious nature and not just idiotic phrases such as “fear of walking close to an encampment” or “smoke from bonfires”.

As we debated during the Environment Bill, fly-tipping is a significant scourge for the landowner and farmer to have to clear up. For this to be a criminal offence against the Travelling community, it has to be “excessive”. It is often the case that the Travelling community will be blamed for crimes that have been committed without any evidence. On Wednesday, when a noble Lord said that he believed that damage and theft by Gypsies and Travellers had occurred, no evidence was provided to support this allegation. We were left to assume that there was a site for Travellers on the doorstep. Similarly, aggravated trespass is serious and must be proved in order for eviction to take place.

On Wednesday, the Travelling community were classed as being illiterate, innumerate, and unwilling to engage in economic activity. This is not the case. The Travelling community do wish their children to receive an education, but in order for this to happen, they need sites on which to reside so that their children can be admitted to school and learn to read, write and have numeracy skills. I have been on a Gypsy site and talked to the elders about the provision of sites. When one elderly Gypsy was required to read a document, he asked his son to do it for him, claiming that his eyesight was poor. I suspect he felt ashamed that he could not read but, like others in all communities, he sought to hide the fact. Lack of literacy is not confined to the Travelling community.

In her response on Wednesday evening, the Minister quoted the Conservative manifesto in relation to making intentional trespass a criminal offence. There will be a great deal in any Government’s manifesto that, for one reason or another, does not make it on to the statute. That same manifesto made a commitment to introduce an animal sentience Bill. That Bill has been duly introduced and had its Committee stage but, like this Bill and Part 4 before us today, it was very poorly drafted. The animal sentience Bill received a very rough passage during Committee, the majority of the criticism coming from the Government’s own Benches. There is no sign of it ever reaching Report stage and I suspect it will be quietly shelved. Hopefully, this section of the Police, Crime, Sentencing and Courts Bill will also be either radically altered or shelved.

Arguments against the provision of sites are that it will attract Gypsies and Travellers into the area where the site exists and that the local authority will be overwhelmed. This is nonsense. On Wednesday, we heard that 694 Gypsies and Roma are actually travelling, requiring transit pitches. This is a problem that could be solved by enforcing local authorities’ obligations to provide for this section of the community. Aggravated trespass is not a solution for anything.

Police, Crime, Sentencing and Courts Bill

Viscount Hailsham Excerpts

Lords Hansard - part one & Committee stage
Monday 1st November 2021 Lords Chamber

[Lord Pannick (CB)]

My Lords, I have added my name to these amendments. It is a great pleasure to follow the noble Lords, Lord Moylan and Lord Sandhurst. In the light of their comprehensive description of the purpose of these amendments, I can be brief.

Much of the data with which the amendments are concerned relates to freedom of expression. Views are expressed or opinions are stated which offend or annoy other people but do not constitute criminal offences. The views or opinions may relate to religion, transgender issues, Brexit or a whole range of other sensitive and controversial questions. Sadly, many people have lost the willingness to discuss and debate; to say, “I disagree with what you say but I will defend your right to say it.” In today’s world a more typical reaction to opinions with which you disagree is to take offence, to demand a safe space, or to complain that your identity has been challenged or that your truth has been denied. Even though no crime has been committed, the police are asked to record the grievance and to retain the data.

I agree with the noble Lords that for the police to have an unregulated power—that is what it is—to retain and use data about such exercises of free speech deters the vigorous debate and discussion on which a free society thrives. It may be appropriate, in some circumstances, for such data to be retained and to be used. None of us is disputing that. But that should be according to law, authorised by Parliament and not just by the discretion of police authorities which choose to apply, or not to apply, guidance from the College of Policing.

I hope that the Minister will consider these amendments constructively and that she will be able to give them the Government’s support, whether in a revised version or otherwise, on Report.

[Viscount Hailsham (Con)]

My Lords, I strongly support the proposed new clause and I will give it all the support I can. The arguments put forward by my noble friends are, frankly, unarguable against.

There are three propositions that I think are affronted by this notification of non-crime hate incidents. The first is the chilling effect on free speech. The noble Lord, Lord Pannick, illustrated that very clearly. One has to be assured of the right to express one’s views without the risk of having this notification made against one.

Secondly, one has to recognise that these are very long-standing notifications, which can have a seriously prejudicial impact on individuals. That is thoroughly undesirable, especially as the individual has no right of appeal or an effective way of challenging. Judicial review, for most people, is not an effective way of challenging.

Thirdly, there is the point made by all noble Lords who have spoken so far. There is no statutory guidance; it is local police policy which influences the way these notifications are made. That is inherently unjust, having regard to the impact that this could have.

Finally, I welcome very much that the regulations are to be made by the affirmative procedure. However, as I have said in this House and elsewhere on many occasions, while that is a good thing in the sense that the comments made by your Lordships and those in the other place can be heeded, we do not have the power to amend the statutory instrument. I have long argued that this House and Parliament in general should have the power to amend the contents of statutory instruments. This is a good example of where that would be beneficial.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I enthusiastically endorse these amendments and thank the noble Lords, Lord Moylan, Lord Pannick, Lord Macdonald and Lord Sandhurst, for raising this crucial issue. The issue of non-crime incidents has been of concern to a number of us for some years and it is good that it is getting some parliamentary attention at last. I particularly credit those organisations and publications that have persistently raised it in the public realm and whose research informed my remarks, especially the Free Speech Union, of which I am on the advisory council, the anti-racist campaign Don’t Divide Us, and Spiked online.

Too many avoid the issue because it is rather tricky and contentious. One of the reasons it is difficult to raise is because nobody wants to look as though they are being soft on hate incidents. However, I am concerned that this in itself has led to a degree of chilling self-censorship and allowed some confusion to arise about what is and is not a crime when the police are involved.

When the public hear the phrases “hate”, “hate crime” or “hate incident”, they instinctively think of, for example, someone being beaten up because of their skin colour or being harassed in the street because they are gay, and they are appalled and shocked. We assume the worst kind of bigotry and our instinct is that something must be done. However, it is not so clear cut. According to the hate crime operational guidance issued by the College of Policing, hate crime is often an entirely subjective category, based on the perception of the alleged victim; I will come back to this.

What is extraordinary about the guidance on hate crime is what the police consider to be successfully tackling hate crime. The guidance says:

“Targets that see success as reducing hate crime are not appropriate”.


That completely befuddled me. The guidance says instead that the measure of success for the police is

“to increase the opportunities for victims to report”.

I fear that, in this act of enthusiasm to get more people to report hate, the police have muddied any clear distinction between what is criminal and what is not.

The focus on reporting initiatives led earlier this year to rainbow-coloured hate crime police cars patrolling local areas, with the aim of giving communities the confidence to come forward and report hate crime. However well-meaning, such awareness-raising initiatives often encourage people to come forward and report things that are not crimes at all. In fact, earlier this year, a police digital ad van trawled around the Wirral, warning that

“being offensive is an offence”.

Actually, being offensive is not a criminal offence. After a backlash, local police clarified that this was an error. Why did the police get it so wrong in terms of what is a crime?

This is not an isolated incident. A few years ago, Greater Glasgow Police tweeted an ominous warning:

“Think before you post or you may receive a visit from us this weekend.”


This was posted alongside a graphic that warned social media users to consider whether their treats were true, hurtful, unkind, necessary and then, right at the end, illegal. Then there was the South Yorkshire Police Hate Hurts campaign, which asked people to report any “offensive or insulting” social media posts to police officers. None of these is a crime and, in relation to a Bill named the Police, Crime, Sentencing and Courts Bill, it is a concern if the police do not know what is or is not a hate crime, so much so that Cheshire Constabulary recently admitted to conflating crime and non-crime in its hate crime statistics.

This amendment can potentially start unpicking this muddle, because the source of the confusion about what is or is not a crime lies in the creation of the category of non-crime hate incident. As we have heard, this category was established by the College of Policing and its guidance encourages police officers to overreach and police non-crimes. It is worth telling noble Lords how this is posed in the guidance. The NCHI guidance states:

“Where it is established that a criminal offence has not taken place, but the victim or any other person perceives that the incident was motivated wholly or partially by hostility, it should be recorded and flagged as a non-crime hate incident.”


Note the use of the word “victim” to describe the reporter or accuser, when no evidence exists that any crime has been perpetrated against him or her. The victim has to claim only that some action or speech was

“motivated wholly or partially by hostility”.

“Hostility” itself is a vague and subjective term. The guidance continues:

“The victim does not have to justify or provide evidence of their belief, and police officers or staff should not directly challenge this perception.”


Furthermore, any other person’s perception can be the basis for this, which is even further removed from any real incident, let alone crime.

Finally, the guidance notes:

“Police officers may also identify a non-crime hate incident, even where the victim or others do not.”


Why? It is because:

“Victims … may not be aware that they are a victim of a non-crime hate incident, even though this is clear to others.”


I find this a kind of dystopian, Orwellian, nightmare world. Imagine untangling your way through that; your name, unknown to you, can appear on a database intended for recording details of criminal offences and be subject to checks by vetting officers when you apply for jobs, as we have heard from noble Lords.

I hope noble Lords can see the dangers here. The subjective nature of the NCHI guidelines creates a real possibility of abuse of the system by people acting in bad faith. The NCHI guidance means that unfounded, spurious and malicious reports can be filed and never tested, let alone the fact that this data gathering distracts the police from pursuing real criminals. I was contacted by one person ahead of this debate, who said, “I had a visit from the police because a member of staff offended another member of staff, who works for me. No crime was reported. The police spoke to me for 40 minutes. In the meantime, the 200 pallets that I reported stolen the week before did not generate a phone call or visit.” Then there is the chilling effect of NCHIs on free speech, as other noble Lords have vividly spelled out. NCHIs can act as a threat, a kind of surveillance of free speech, by people who say it will eventually lead to crime. Anyone who is following the fate of gender-critical feminists, who are constantly accused of hate by a particular brand of trans activist, will understand just how damaging that is to free speech.

This Government tell us all the time that they are keen to oppose cancel culture. I fear that these NCHIs inadvertently contribute to that censorious climate of denunciation and the toxic climate of hate, which we are all keen to combat. I therefore urge the Government to consider these amendments carefully and remove this contradictory anomaly, which, I fear, brings the police and criminal law into disrepute.

--- Later in debate ---

This Bill is an opportunity the ensure that the best interests of the child are upheld when sentencing a primary carer and therefore influencing the well-being of the family. I strongly support these amendments.

[Viscount Hailsham (Con)]

My Lords, I have a brief point to make. I find a great deal of attraction in the thinking behind the new clause. It has great force and has been eloquently moved. But the question I ask myself is: if one is going to extend these provisions to the primary carer of children, what about others for whom the primary carer is in charge? What about the vulnerable, the educationally challenged, the disabled and the aged? Once you begin to accept that the interests of the primary carer for children should be addressed in the way contemplated by the new clause, there is a lot to be said for widening its scope so that it applies to primary carers across the spectrum.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I rise very briefly to support the principle of these amendments. I warmly welcome what the Government are trying to do to roll back the use of prison for women. Everyone accepts that sending a woman to prison is generally something to be avoided at all costs. We need alternative provision as quickly as possible. However, we all know that this will take time. We have to deal with the situation in the interim.

In considering these amendments, I am acutely conscious of the burden that legislation is placing on the judiciary. One has only to read the Sentencing Code to realise what Parliament is actually doing to the judiciary in terms of complexity. However, what is important about the role of Parliament is to set out the principles. If I might try to answer the question raised by the noble Viscount, it is the interests of the child that we need to put at the heart of sentencing. We have put other interests there, but we need clearly to specify that one of the factors judges must take into account, whether on bail or in sentencing, is the interests of the child. Extensive work has been done in Wales and elsewhere: modern research shows that imprisoning a mother has a very serious effect.

[Viscount Hailsham (Con)]

I entirely accept what the noble and learned Lord is saying, but I am not sure I see the distinction in principle between having regard to the interests of a child—I accept that that is a very important consideration—and having regard to a vulnerable old person, or a person with serious educational disabilities. It seems to me that all of them are equally worthy of consideration in statute if you go down this particular road.

[Lord Thomas of Cwmgiedd (CB)]

If I might attempt to answer the noble Viscount’s question, paramount importance is given to the interests of the child because evidence has shown that, where there is abuse of children and where mothers are imprisoned, you pass on criminality to a new generation. That is the distinguishing factor. I therefore very much hope that we can look at these amendments for the principle. I am possibly not as keen as others on the detail, for the reasons I have given, but we need to show that one of the fundamental principles of sentencing is to take into account, through the interests of the carer, the interests of the child.