Baroness Williams of Trafford
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Policing and Crime Bill
Baroness Williams of Trafford ExcerptsMonday 12th December 2016
(7 years, 4 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 72-III(a) Amendment for Report, supplementary to the third marshalled list (PDF, 54KB) - (9 Dec 2016)
“Pilot schemes
(1) The Secretary of State may by regulations made by statutory instrument provide for any provision of sections 144 and 145 to come into force for a period of time to be specified in or under the regulations for the purpose of assessing the effectiveness of the provision.(2) Regulations under subsection (1) may make different provision for different purposes or different areas.(3) More than one set of regulations may be made under subsection (1).(4) Provision included in regulations under subsection (1) does not affect the provision that may be included in relation to sections 144 and 145 in regulations under section 160 (commencement).”
Lord Kennedy of Southwark
My Lords, I very much support all the amendments in this group. We have made tremendous progress in recent years in seeking to redress the effects of homophobic legislation. Terrible injustices were suffered, and previous changes to the law and the amendments are intended to go some way to correct that and make amends. They have my full support and that of my party.
Of course, we need to go further in Northern Ireland, but this is an important step. I want to see the day when LGBT people living in Northern Ireland have exactly the same rights, protections and freedoms as LGBT people living in England, Scotland and Wales. We are a United Kingdom, albeit with devolved institutions, but LGBT people should have the right to get married in Northern Ireland; that must be urgently addressed by the Northern Ireland Assembly and the ministerial team led by the First Minister and Deputy First Minister in Stormont. It is wrong to keep using the petition of concern procedure to block progress in this matter. The UK Government must play their role in championing the rights of LGBT people in Northern Ireland by raising this issue at ministerial and official level. It is not enough for the Government to say that it is a matter for the devolved institution.
During Committee on the Bill on 9 November, I made clear my support for a range of amendments proposed by several Lords. I was clear that welcome progress was being made, but that the amendments proposed by my noble friend Lord Cashman were in my view the best ones before your Lordships’ House. They were not accepted by the Government, but discussions have taken place outside the Chamber, and the amendments proposed by my noble friend Lord Cashman and the noble Baroness, Lady Williams of Trafford, are very welcome. I thank the noble Baroness very much for listening and working with my noble friend on them.
I pay warm tribute to my noble friend Lord Cashman. We have been friends for many years. It is his tireless campaigning with others, including the noble Lord, Lord Lexden, that has got us to this point today, and we should be very grateful to them all.
Although it is not on the subject of the amendments, I will make one final point on equality in Northern Ireland in respect of women’s equality. The Northern Ireland Assembly, Ministers, led by the First Minister and Deputy First Minister, and the political parties must get together to deliver equality for women living in Northern Ireland, so that they enjoy the same rights as women living in England, Scotland and Wales. Again, the UK Government have to play their role by raising that at ministerial level. Although that is a matter for another day, it is an important issue to which we must return. In conclusion, I confirm my full support for the amendments.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I am so pleased to be able warmly to support the amendments proposed by the noble Lord, Lord Cashman, and my noble friend, Lord Lexden. I also acknowledge the spirit of very positive co-operation that has led to the amendments. I recognise that they will continue to strengthen the efforts made by this Government to tackle the historical wrongs suffered by gay and bisexual men in England and Wales—and now Northern Ireland—who were criminalised over a long period for something that something that society today regards as normal sexual activity.
I shall deal first with Amendments 181D, 181E and 181F, tabled by the noble Lord, Lord Cashman. As he explained, they will enable the Secretary of State to extend, by regulations, the list of offences eligible for a disregard under the provisions of the Protection of Freedoms Act 2012. The regulation-making power enables the necessary modifications to be made to Chapter 4 of Part 5 of the 2012 Act, and provides for corresponding provision for pardons to that contained in Clauses 148 and 149 of the Bill.
In Committee the noble Lord made the case for other offences being included in the disregard process, in particular the offence of solicitation by men which is in Section 32 of the Sexual Offences Act 1956. As I indicated at that time, the Government are broadly sympathetic to this, but we need more time to work through the implications of adding offences to the disregard scheme, and in particular the conditions that need to be satisfied before a conviction could be disregarded. In recognition of the fact that we should not rush that consideration, Amendment 181D enables the Home Secretary to add other abolished offences to the disregard scheme by regulations, subject to the affirmative procedure. It is important that, in taking this forward, we are able to distinguish between activities that are now no longer illegal and those that are still illegal. This amendment also gives us scope to consider what other offences may be appropriate for inclusion, so it is to be welcomed as a signal of our continued commitment to address these historical wrongs.
As my noble friend Lord Lexden explained, the amendments in his name introduce a comparable disregard scheme in Northern Ireland to match that already in operation in England and Wales. They also introduce the same approach to statutory pardons as that contained in Clauses 148 to 150 of the Bill.
As I indicated in Committee, as these provisions relate to transferred matters in Northern Ireland, it is right that this House should respect the usual convention that the UK Parliament legislates in respect of such matters only with the consent of the Northern Ireland Assembly. I am pleased to say that the Assembly adopted the necessary legislative consent Motion on 28 November.
My noble friend Lord Lexden pointed out the important difference in the Northern Ireland disregard scheme; I thank him for explaining it to the House so that I shall not have to go through it again. I am pleased that we have been able to work fruitfully with the noble Lord, Lord Cashman, and with my noble friend, and I commend their amendments to the House.
My noble friend Lord Lexden pointed out an apparent contrast in the approach taken in Clause 148 as between civilian and service offences. That clause confers posthumous pardons for convictions for buggery and certain other abolished offences tried in the civilian courts, which date back to the Henry VIII statute of 1533—whereas posthumous pardons for convictions for the equivalent offences under service law reach back only to 1866. My noble friend said that it was in fact the Navy Act 1661 which first criminalised buggery in the Armed Forces. While the intention behind Clause 148(4) is to capture only relevant service offences that could have been prosecuted in either civilian or service courts, my noble friend may have alighted on a very valid point. I therefore undertake to consider this matter further with a view to bringing back a suitable amendment at Third Reading.
Lord Lexden
My Lords, I must express most grateful thanks to all noble Lords who have taken part in the debate. Those who will benefit from these measures in Northern Ireland will derive great satisfaction from this part of our proceedings today. There is, as the noble Lord, Lord Kennedy of Southwark, emphasised, more to be done—but these measures will, I think, assist the new pattern of more tolerant, inclusive and peaceful life that is evolving in this important part of our country.
Lord Kennedy of Southwark
My Lords, this amendment in the names of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, was debated in Committee. It is fair to say that it did not get a warm welcome from the Minister in responding to the debate. I was surprised to learn that the Government had no data at all on the number of people affected by the law before it was abolished. Clearly, the amendment is not going to be accepted by the Government tonight, but the noble Lord is right to keep raising the issue and I hope that it will keep being raised. It is only by doing so that we can explore what options are available to us, what happened in the past and whether it was right and whether, with hindsight, the offence should have been removed from the statute books many years before it actually was, as it was used in a way that discriminated against black people.
I hope that, when the Minister responds to this short debate, she can focus particularly on the amendment. In her response in Committee, the focus was as much on the previous debate, so I hope that it can focus particularly on the points voiced before us here today.
Baroness Williams of Trafford
My Lords, I thank both noble Lords for explaining the amendment, which was of course also tabled in Committee, seeking to confer a pardon on persons, living and deceased, who were convicted under that part of Section 4 of the Vagrancy Act 1824 which was repealed by Section 8 of the Criminal Attempts Act 1981.
Section 4 of the Vagrancy Act 1824 was originally a wide-ranging provision, and some of it is still in force today. The part with which the noble Lord’s amendment is concerned is the offence of being a suspected person, frequenting, in effect, any public place,
“with intent to commit felony”,
or, as it became, an arrestable offence. The noble Lord has illustrated from his own experience, and the Home Affairs Select Committee identified in 1980, that this so-called “sus” offence was used in a discriminatory and unfair way, particularly in relation to young black men. However, as the noble Lord has also acknowledged, not every conviction under this provision, certainly not going all the way back to 1824, was wrong or unfair. In fact, the Home Affairs Select Committee concluded:
“The most powerful argument against ‘sus’ is that it is a fundamentally unsatisfactory offence in principle”.
Baroness Williams of Trafford
My Lords, I am not a lawyer. When the noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Butler-Sloss, say this is a very difficult issue, I know that this is a very difficult issue. I am grateful to the noble Lord, Lord Paddick, for retabling the amendment on pre-charge anonymity for those accused of sexual offences and to my noble friend Lord Marlesford for his amendment, which proposes pre-charge anonymity for a person accused of any crime. I know this is a subject which we have debated frequently and in which noble Lords have a great deal of interest, and we have the legal experts of the land here to assist us.
Like other noble Lords have said, I will not repeat all the points I gave in my responses to the amendment in Committee, save to say that the Government fully understand the anguish felt by those who have had their reputation questioned and tarnished following unfounded allegations made against them. My noble friend Lord Lamont very articulately outlined the names of some of them, although I will not go into individual cases. As the noble and learned Lord, Lord Judge, indicated in our earlier debate, such anguish will arise whether the unfounded allegation was in relation to allegations of sexual offences, which is the premise of the amendment in the name of the noble Lord, Lord Paddick, or with regard to other offences, which is the reasoning behind my noble friend’s amendment.
However, I reiterate that the notion that someone is innocent until proven guilty, as the noble Lord, Lord Pannick, says, is absolutely central to our justice system and the rule of law. There must never be an assumption that being charged or arrested for any offence indicates that a person is guilty of a crime, so the Government have every sympathy for the underlying aims behind both of these amendments. As noble Lords will know, the Government also start from the position that there should, in general, be a presumption of anonymity before the point of charge and believe that there is also a general acceptance that there will none the less be exceptional circumstances in which the public interest means a suspect should be named. The noble Lord, Lord Campbell-Savours, articulated that. The Government’s position remains that we are not persuaded that legislation is the right way forward at this time.
As with any offence, it is absolutely right and proper for the police to have operational independence in deciding whether to name a suspect, and the Government firmly believe that non-statutory guidance, rather than primary legislation, is the appropriate vehicle for guiding the police in these operational decisions. It is absolutely vital that the police are able to exercise their own judgment and act swiftly in circumstances where releasing the name of a suspect may, for example, prevent further harm. The introduction of a statutory scheme would hamper the police’s ability to act in this way. We know that such identification can help other victims to recognise that they are not the only ones who have suffered, as the noble Lord, Lord Rosser, said. This is particularly the case with regard to sexual abuse allegations, where the ability of the police to name an individual accused of such an offence might give encouragement to other victims to overcome their reluctance to come forward—and many of them are very reluctant. Victims must feel that they can report the abuse to the police as well as get the support they need.
We have seen recently the significant effect of increased willingness by victims to report what happened to them in the shocking scale and nature of allegations of non-recent child sexual abuse in football. I am sure the whole House will want to join me in paying tribute to the bravery that some ex-footballers have shown in coming forward publicly after so much time in what must have been terribly difficult personal circumstances. Their courage has clearly given confidence to many others to come forward. But had the legislation put forward by these amendments been in place today, the media in this country could have been prevented from reporting the claims of some of these alleged victims. Of course, as with any allegation, it is now for the police to take forward and investigate in order to establish the facts and, where appropriate, to bring prosecutions.
A question was asked—I cannot remember by which noble Lord—about whether the police should believe all victims. The police should always focus on the credibility of the allegation rather than on the credibility of the witness. As I have just outlined in the case of allegations in football, I cannot emphasise strongly enough that we must not undermine victims’—
Lord Carlile of Berriew
I do not quite understand how the shocking cohort of football cases relates to the issue in these amendments. These football cases have not followed a specific arrest or arrests. Indeed, the three convictions of Barry Bennell in 1994, 1998 and, I think, 2002, did not produce a cohort of reporting; media publicity of the issue, not of an arrest, produced it. So what does it have to do with this issue?
Baroness Williams of Trafford
I am trying to illustrate that alleged victims’ willingness to come forward is now more common because they feel that they can come forward and they are more likely to be believed. There are not huge numbers of convictions in sexual abuse trials, and to go back to the position where anonymity was granted would be a retrograde step.
Lord Paddick
Can the Minister clarify that? I think she just said that there is a low conviction rate in trials involving sexual offences. That is not accurate. In rape cases, for example, the conviction rate at trial is more or less over 50% and more or less in line with the conviction rate in other offences.
Baroness Williams of Trafford
Many cases do not come to trial. I was trying to illustrate the reluctance of people to come forward. People are still reluctant to do so, and the Government do not want to create an environment in which we go back to the practices of times gone by, which is why we have so many allegations of historic sex offences.
Noble Lords asked about safeguards, and of course, as my noble friend Lord Faulks said, we have the magistrates’ court and the High Court. We have College of Policing guidance, which states that the police should not routinely release information about suspects before charge. However, it also makes clear that there are limited circumstances in which the release of such information can be justified.
Lord Campbell-Savours
Will the Minister address the issue that was raised by most of the speakers, on the position of people who commit suicide, whose families break up, whose reputations are destroyed or whose careers end, or who are destroyed in their communities, only because the Government of the day—of both major parties—have insisted on pursuing this arrangement, which is clearly not in the public interest? Will the noble Baroness address the agony of the people involved? The fact that some of them are prominent is not so important. Hundreds—there may well be thousands; we do not know—of people out there suffer similarly.
Baroness Williams of Trafford
I think I addressed that right at the beginning of my speech, when I said that the Government completely acknowledge the pain that some people have gone through in the course of the last few years—and in the course of history—due to being wrongly accused of crimes which they did not commit. I absolutely acknowledge that point. The noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Butler-Sloss, said that it is an incredibly difficult issue, and I recognise that.
I was going to say something else. The College of Policing is currently developing—
Lord Lester of Herne Hill
The Minister acknowledges that there is a problem and that there have been cases of monstrous injustice to individuals. Several of us have asked whether the Government will go forward, not backwards, with some alternative to either of these amendments. Can she tell us precisely what she proposes to do, with revised guidance, codes of practice or anything else, so that we can be satisfied that the Government will solve the problem?
Baroness Williams of Trafford
I was just about to say—I do not know whether the noble Lord will be satisfied by it—that the College of Policing is currently developing authorised professional practice on media relations, and its guidance makes it clear that decisions should be made only on a case-by-case basis when it comes to the releasing of names. I am not sure that I have satisfied noble Lords but I have tried to explain how we have tried to achieve balance in the protection of anonymity for persons who are accused pre-charge.
Lord Morris of Aberavon
I wonder whether the Minister is going to deal with this difficult issue with its complicated argument by referring it to the Law Commission so we can have an independent view that may not be forthcoming from the College of Policing.
Baroness Williams of Trafford
I think that I have explained that the Government feel that we currently have the balance right and that we should preserve that presumption of anonymity—so I will not be doing what the noble and learned Lord suggests. I hope that my noble friend will withdraw his amendment and that the noble Lord, Lord Paddick, will not press his.
Lord Rosser
I will be brief. As the noble Lord, Lord Paddick, has indicated on behalf of the Liberal Democrats, if, having heard the Government’s reply, my noble friend Lady Royall decides to test the opinion of the House, we too shall be supporting her amendment in the Division Lobby.
I will not go through all her points but my noble friend has referred, as have others, to the issue of repeat offences. She referred to why the maximum sentence is five years at present. She referred to the level of cross-party support that there has been on this issue, and to the relationship of the maximum sentence for this offence with other offences that have a maximum of 10 years. She also made reference to the stalking orders and the Government’s announcement there, which was welcome, but of course it does not address the issue of what the appropriate maximum length of the sentence is. My noble friend also stressed that stalking costs lives in certain circumstances, and causes psychological harm. I think she has made an extremely powerful case. As I said, if she decides, having heard the Government’s response, to test the opinion of the House, we shall be with her in the Division Lobby.
Baroness Williams of Trafford
My Lords, I pay tribute to the work that the noble Baroness, Lady Royall, carries out as a trustee of Paladin to support and give a voice to victims of stalking.
Obviously it would be wrong of me as a Minister to comment on individual cases, particularly on sentences imposed in those cases. However, I want to express my sympathy for the victims of these crimes, which can have significant effects on their lives. It is important to consider the evidence of how sentencers are using the range of penalties available to them today. It is very rare that sentences are given that are near to the current maximum. In 2015 only three people received sentences of over three years for the Section 4A offence, and the average custodial sentence was 14.1 months. The evidence therefore suggests that judges are finding their current sentencing powers for this offence sufficient.
We must also bear in mind that, in addition to this specific stalking offence, this type of offending can be charged under other offences such as assault, criminal damage and grievous bodily harm with intent. When an offender is convicted for one of those offences, they will face a maximum penalty of 10 years for criminal damage or life imprisonment for GBH with intent.
I reassure noble Lords that the Government are taking steps to ensure that stalking is dealt with seriously. As the noble Baroness acknowledged, last Wednesday we announced plans to introduce a new stalking protection order aimed at ensuring that pre-charge options are available to the police to protect victims of stranger-stalking to the same level as victims of domestic violence and abuse. Breaches of these orders will be a criminal offence carrying a maximum penalty of five years’ imprisonment.
Alongside the work of government, the independent Sentencing Council is currently considering sentencing guidelines for intimidatory offences, including the stalking offence covered by the noble Baroness’s amendment. The council aims for its definitive guidelines to come into force in early 2018, following a consultation on the draft guidelines early next year. I encourage the noble Baroness and others to respond to the consultation.
We are also looking at the wider picture of how stalking offences are dealt with and prosecuted. Her Majesty’s Inspectorate of Constabulary and Her Majesty’s Crown Prosecution Service Inspectorate are currently carrying out a joint inspection on the effectiveness of the police and CPS response to cases involving stalking and harassment, and to examine the service received by victims.
In setting maximum penalties, we must also consider the penalties available for other, related offences. These include the other offences under Sections 2 and 4 of the Protection from Harassment Act, which can cover similar offending behaviour. We should consider carefully the potential impacts of creating such a large difference between the maximum penalties for the Section 4 and 4A offences, as the amendment proposes. Other relevant offences include assault occasioning actual bodily harm or grievous bodily harm, for which the statutory maximum penalty is five years’ imprisonment. To increase the maximum penalty for stalking offences causing fear of violence would mean that the penalty for causing fear of violence would be higher than that for causing the violence itself.
We recognise that it is often the case that raising the maximum penalty appears to be a straightforward solution to a problem. I do not think it is a straightforward solution in this case. It may be necessary in due course but, before moving to raise the maximum, we should give careful consideration to the implications for other related offences and avoid creating anomalies in the criminal law.
However, I recognise the strength of feeling about this issue and the harm that can be caused by the most serious stalking cases. The Government will therefore review the operation of the Section 4A stalking offence and related offences. We will consider the maximum custodial sentences available to the court and, in addition, consider mental health sentences to consider how best to identify and address the underlying issues that are present in the most serious cases. The review will supplement the work being done by the Home Office to prevent stalking by looking at the ultimate sanctions available for those who continue to commit offences. I hope this review will also provide further material for the Sentencing Council to draw on as it produces sentencing guidelines for stalking and related offences. Given this commitment to review the operation of Section 4A, I hope the noble Baroness will feel able to withdraw her amendment.
Baroness Royall of Blaisdon
My Lords, I am grateful for that response from the Minister and for the contributions from other noble Lords. Of course I hear what the noble Viscount, Lord Hailsham, says. I too loathe prisons; I recognise that they are overflowing and that the conditions inside many of them are abhorrent. However, I agree with the noble Lord, Lord Paddick, that many people who are sentenced to prison should not be there, but that does not mean to say that the people who in my view should be in prison should not be there. So I do not agree with the noble Viscount.
It is true that other crimes can be taken into account but I am referring to one specific crime, stalking, and I think we should take that specific crime seriously. It should not always have to be taken into account along with other crimes.
The Minister pointed out the potential differences between sentences; as she says, actual bodily harm has a maximum of five years. However, I believe that is because the harm that is caused does not have to be really serious; typically, it is bruising. What we are talking about here is something that blights people’s lives and those of their families year after year.
I am grateful for the offer from the Minister for a review but, as I mentioned in my speech, this is something that I and many others, including the noble Baroness, Lady Brinton, cared about four years ago when we argued that the maximum sentence should be 10 years. The last four years have shown us that a five-year maximum is not enough, and I therefore wish to test the opinion of the House.
Lord Hope of Craighead
My Lords, I will add just a footnote to what the noble Viscount said. Some years ago, there was a challenge to Section 41 of the 1999 Act on the ground that it was incompatible with the convention right to a fair trial. I sat upstairs in a committee room as a Law Lord with the Appellate Committee. We were very careful to restrict the ability of counsel to explore these matters, as far as we possibly could consistent with the right to a fair trial. I am glad to hear that, from the noble Viscount’s experience, the system is working very well. On the other hand, when we were framing our restrictive view as to how the section should be applied, we were looking to the future; we did not have the benefit of experience. Like the noble Viscount, I have no objection to a review, which I suppose might serve some useful purpose by informing everyone as to whether the system is really working as the Law Lords expected it should.
Baroness Williams of Trafford
My Lords, the noble Lord, Lord Marks, raises the important issue of the protection of complainants of rape and sexual offences from being questioned about their sexual history. As I previously made clear, it is vital that victims have the confidence to report crimes as terrible as rape, and that they have confidence that the criminal justice process will bring offenders to justice. Our message to those who are willing but currently worried about reporting such offences is that they should feel confident about doing so.
When we first debated the issue, I assured noble Lords that we would look at how Section 41 of the Youth Justice and Criminal Evidence Act 1999 was working in practice. As the noble Lord asked, perhaps I may provide a bit more detail. The Justice Secretary and the Attorney-General have advised me that this will include examining the original policy intent of Section 41, its implementation and how it is operating in practice.
I can confirm that this work will be led by officials in the Ministry of Justice and the Attorney-General’s Office. They will consider carefully the concerns that have been raised and seek views from the judiciary, practitioners and victims’ groups. This work will be completed in the first half of next year.
We have already made clear our commitment to carry out this work and, in our view, there is no benefit in making it a statutory requirement. In the light of the detail that I have provided, I hope that the noble Lord will feel happy to withdraw his amendment.
Lord Marks of Henley-on-Thames
My Lords, I am very grateful to the Minister for the further detail that she has given on the review. I quite accept her position that there is no need for a statutory requirement for it, so I propose to withdraw my amendment. However, in response to the speeches of the noble Viscount, Lord Hailsham, and the noble and learned Lord, Lord Hope, I make clear to the House, for those who may not be familiar with it, that concerns have arisen in the light of the decision of the Court of Appeal in the Ched Evans case, in which the admission of such evidence in cross-examination was permitted in a case in which many thought that it would be excluded. It is for that reason that this has become a matter of additional concern, and for that reason that we are extremely grateful that the review is to be carried out. I beg leave to withdraw the amendment.