Criminal Justice Bill (Third sitting)

Alex Cunningham Excerpts

Committee stage
Thursday 14th December 2023 Public Bill Committees

[Stephen Metcalfe]

Q That is fine. You said that the measures in the Bill are welcome. Are there any other measures that you would have liked to see in it that would help to tackle knife crime? I realise that it needs a holistic approach and that you need to work with others, but we can only give you the powers.

Nick Smart: The powers on sale and manufacture are welcome in addressing those who use social media such as Snapchat to sell knives to groups. The prohibited knives in a public place distinction is welcome. We have tried for some time to do that. For example, you have to prove three different elements to prove that something is a zombie knife, but now there is a provision in the Bill. I guess an aggravating factor that might be linked to the sentencing guidance is having that prohibited knife in your possession. Again, taking that into account in a court of law is welcome. The set of provisions around knife crime is very welcome.

[Alex Cunningham (Stockton North) (Lab)]

Q We have plenty of time, so I would like to read you a quote. In the first evidence session on Tuesday, I asked Nicole Jacobs, the Domestic Abuse Commissioner for England and Wales, what we could build on in the Bill. She said:

“Police-perpetrated domestic abuse related issues—and that means three key things to me. One is being more proactive about removing warrant cards if someone is under investigation for crimes relating to violence against women and girls or domestic abuse. The second is the specified offences that I believe should be listed that would constitute gross misconduct; again, I think they should be defined as domestic abuse, sexual harassment, assault and violence, so-called honour-based abuse, and stalking. The third is stronger provisions in relation to police vetting—requiring that every five years, and ensuring that if there is a change in force, police vetting takes place. Tightening up those provisions is not currently in the Bill and I think it should be.”––[Official Report, Criminal Justice Public Bill Committee, 12 December 2023; c. 24, Q55.]

Do you agree?

Nick Smart: If we take the last point first, vetting more frequently during an officer’s service is welcome, and if they change force, entirely appropriate. We agree with that.

On gross misconduct, if you permit me, I have some data to share. We are talking about not just domestic-based issues, but superintendents served gross misconduct papers in the past few years for various things. In 2018-19, 19 of our members were served and two sacked; in 2019-20, 19 were served and four sacked; in ’20-21, nine gross misconducts, two sacked; and in’21-22, 12 with one sacked.

What that shows about gross misconduct is that roughly 80% of officers who are served with gross misconduct papers have NFA—no further action—taken against them. We suggest looking at cases on a case-by-case basis and, if it involves serious wrongdoing, that should be a matter for the appropriate authority to look at a severity assessment and to make that assessment straightaway. We believe we find that a quarter of our professional standards departments go to gross misconduct almost immediately, and if 80% to 85% of officers have no further action taken when they are given those gross misconduct papers, that indicates to us that the severity assessment is wrong in the first place. If there is wrongdoing and it is clear, however, then gross misconduct papers should be served.

We would say, again, that at the merest hint of a suggestion, police professional standards departments serve a gross misconduct, but we think that there should be more of an investigation to establish the facts before gross misconduct papers are served. But where there is a clear chain of evidence that relates to an individual and wrongdoing, it is entirely appropriate, and we support gross misconduct papers being served.

[Alex Cunningham]

Q That is helpful. Is there anything that the Bill Committee can do to improve this piece of legislation to assist police forces across the country in dealing with such issues?

Nick Smart: I think that the way in which we as a service approach gross misconduct could do with a refresh. We have discussed that as a Police Superintendents’ Association, because our colleagues are usually the heads of professional standards departments making those assessments. Culturally, I think we go in low, so it is easy to give somebody a gross misconduct paper, whereas some work with the College of Policing to refresh how we approach that might be welcome, so that gross misconduct is served appropriately to the right individuals and we do not clutter professional standards departments with investigations that are going nowhere ultimately.

[Alex Cunningham]

That is helpful, thank you.

[The Chair]

Q We have a minute or two left. Do you want to share with the Committee anything you have not been asked about, but think would be helpful?

Nick Smart: If I may, there is one item—the powers of entry—which I think you alluded to. An issue that we looked at was that of immediacy. Section 18 of the Police and Criminal Evidence Act 1984 allows the police to search after arrest, and that requires an inspector’s authority. In certain circumstances, if the inspector is not available or there is a policing need, the constable can go in and get retrospective authority.

In the circumstances outlined in the Bill’s powers of entry, nothing in there regards that immediacy. If the officer at the time needs to go in to recover the property but cannot get hold of the inspector—for example, if the inspector is in custody dealing with a review, or they are dealing with a complaint or a critical incident, and because they need to review what is going on and then give that authority—it would be helpful to have that provision in so that the officer can seek that respective authority from the inspector as per section 18 of PACE. The precedent is there, but a provision would tackle immediacy—

--- Later in debate ---

[The Chair]

We now welcome Mark Fairhurst. Would you like to introduce yourself to start with?

Mark Fairhurst: Sure. I am Mark Fairhurst, the national chair of the Prison Officers Association. I am also a serving prison officer, and have been since 1992.

[Alex Cunningham]

Q Good afternoon, Mark. Thank you for giving up your time for us this afternoon. The stresses and strains within our prisons are well documented. Recent legislation has added to them with an increased demand for prison places. For the record, could you outline what is happening in our prison system that has led to the Government coming forward with the proposal to send prisoners abroad?

Mark Fairhurst: We are really short of space at the moment. That is why the Government introduced an earlier release scheme to relieve some of the pressure. As it stands today, we probably have about 850 spaces left in the adult closed male estate. At the time the Government introduced these temporary measures, we had less than 200 spaces left. As the backlog in the courts gets dealt with, and we see more people getting sent to prison, we are really struggling for space. That means we now have to overcrowd already overcrowded prisons. There is a really big strain on the system at the moment. I believe that, come next spring—March or April time—we will be in crisis again with prison spaces as things start to ramp up.

[Alex Cunningham]

Q Did the Government consult the POA about their proposal? If they did, what was your response?

Mark Fairhurst: No, they did not consult us at all. It was on the backburner for some time, but we were not made aware of it until it was actually going to be announced and put into action. Our response to it would have been the same no matter what: you need to look at sentencing first and foremost, particularly for those serving the shorter sentences. That would free up a lot of space. Overcrowding prisons even more just puts more pressure on the system. We need to look at prisoners serving sentences of imprisonment for public protection as well. We have about 3,000 people who are serving indeterminate prison sentences. They are not all a risk to the public. We need to look at that as well, to free up some space.

[Alex Cunningham]

Q The Government have put forward proposals on how we treat short sentences, and the presumption against short sentences, which I personally think is quite positive. How do you envisage that this proposal to send prisoners abroad would actually work? What issues will arise from that?

Mark Fairhurst: The problems I can foresee are that, for one, you have to have the agreement of the country you are going to deport them to. Secondly, you need to know the identity of the person and what country they are actually from—a lot of people do not divulge what country they are from. Thirdly, if you are going to send foreign criminals back to their country of origin and not insist that they finish their prison sentence in that country, there is not much of a deterrent to foreign offenders committing crimes in this country, because they will get a shorter prison sentence and will be sent back home at the taxpayer’s expense. Those are the problems I can foresee.

[Alex Cunningham]

Q I meant specifically sending British prisoners to see their sentence out in a foreign prison.

Mark Fairhurst: Again, it is all about cost. How much is it going to cost the taxpayer? Is it practical? How do we get them there? How many are we going to send? Our budgets are getting cut year on year through His Majesty’s Prison and Probation Service and the Ministry of Justice. Are we going to be given additional funding for it? The Government have promised 20,000 additional prison spaces. That is all well and good, but we cannot build prisons quickly enough and we cannot staff them because we are in a staffing crisis—we just cannot retain people.

[Alex Cunningham]

Q You mentioned that sentencing could be part of the solution to the problem. I am struggling to think of alternative ideas to reduce the demand on our prison system. Perhaps the Government are right to send prisoners abroad if they can rent space.

Mark Fairhurst: It is welcome that the Government have decided that there is a presumption against shorter sentences. If they focused more on community sentences that the public have confidence in, that would help. If they focused on a re-sentencing exercise for IPP prisoners, as the Justice Committee recommended, that would free up a lot of space. But again, have we got enough probation staff in our communities to supervise offenders given community sentences? That is another big issue.

[Alex Cunningham]

Q You just answered my next question. We cannot expand community provision if we do not have support in the community for defendants. What do you think will be the likely impact of the scheme on your members?

Mark Fairhurst: We will just see more and more pressure heaped upon us because prisons are already overcrowded. It will heap even more pressure on people. We cannot retain staff; most of them leave within the first two years of service. We do not have the infrastructure in many Victorian jails in inner cities to accept more people, so how quickly will we build new prisons and when will they be ready? More importantly, how will we staff them? For everybody’s notation, we are seeing a ramp-up in violence against staff, and more and more incidents of concerted indiscipline. It is only going to get worse the more we crowd prisons.

[Alex Cunningham]

Q Everybody around the table will recognise the tremendous work that prison officers do, and the increase in stresses and strains that they are facing. We need to be able to deal with violence against prison officers as well. Your members play an important role in through-the-gate services, helping prisoners prepare for release. How does the scheme impact that? I think the idea is that the Government would bring prisoners back before final release, but does that work?

Mark Fairhurst: Not really. It works in the open estate. The open estate is very successful at preparing people for release and for getting back into their communities, but it is not practical in inner city local jails because we simply do not have the resources to do that. I would rather the Government focused on increasing community sentences with the correct supervision, and expanding the open estate so we could prepare people for release and hopefully rehabilitate them.

You have to understand that unfortunately in the prison system, rehabilitation is just a word—a headline. We do not have the resources to rehabilitate anybody because we do not have enough activity spaces or workspaces. We struggle to recruit teachers and give everybody a purposeful workspace in our prisons. That really needs to be addressed.

The other focus is that a lot of people in prison really should not be there because they have severe mental health disorders. They would be better suited serving their sentence in secure mental health institutions, so maybe we need to look at investing in that as well.

[Alex Cunningham]

Q Thank you. I have one final question on a different subject. A provision in clause 22 of the Bill compels defendants to appear in court for sentencing. How does that affect your staff? You will not necessarily be transporting defendants, but in some cases you will be.

Mark Fairhurst: It is quite easy for prison officers to force someone to attend court; we restrain them on to a cellular vehicle and then they are taken to court. The problem arises at the other end because the courts are run by private security firms now. Have they got the staffing levels needed to take someone who has been recalcitrant off a bus and into a cell in the court? Have they got the resources to drag them into the dock if they are still displaying violent tendencies? Will that disrupt proceedings in the court? Will they be abusive to victims? Will it be distressing for the victims of crime to witness that in the dock? There are a lot of issues we need to look at.

[Alex Cunningham]

Thank you very much.

[Laura Farris]

Q Can I pick up on that final point about getting defendants into the dock for sentencing? I am sure you are aware that the discretion as to whether that order will be made will sit with the judge, so there will be an assessment of the defendant’s conduct. If the judge deems that it is appropriate to bring the defendant into the dock, the parameters for the use of force will be a decision that remains with the prison authorities. Do you think that is the right approach?

Mark Fairhurst: Judges have always had the discretion to order a defendant into the dock. When we used to run a court in the ’90s, there was many a time that we would have used force on a prisoner to get them in front of a judge. That discretion has always been there. It is the right way to do things—we are best suited to decide when it is appropriate and proportionate to use force.

I would like to see dialogue between the staff in the courts and the judge because, if the prisoner is being extremely violent or aggressive, I do not think sitting them in front of a judge is the right way to do things. Maybe we could do it remotely, in a secure room, so the victim still has the opportunity to read out their impact statement, rather than proceedings being disrupted—when you do things remotely, you have the ability to mute. We could still force the prisoner to address those victims, and the victims would feel as if they were getting some sort of justice.