Police, Crime, Sentencing and Courts Bill (Second sitting)

Chris Philp Excerpts

Committee stage
Tuesday 18th May 2021 Public Bill Committees

[The Chair]

I am afraid I have to strike a balance and I have to switch to the Minister, for his questions. I am sorry.

[The Parliamentary Under-Secretary of State for the Home Department (Chris Philp)]

Q Thank you, Mr McCabe. To pick up on the questions asked by the hon. Member for Stockton North (Alex Cunningham) about minimum sentences, we have minimum sentences in very rare circumstances at present. Can you give the Committee your views about the pros and cons or the considerations we should have in mind if any proposals are made to increase the range of circumstances or offences to which minimum sentences might be applied?

Adrian Crossley: So that I understand the question and I answer it properly, are you asking what merits we would need to see in order for there to be an expansion of minimum tariffs in sentencing? Is that what you mean?

[Chris Philp]

Or the risks. What are your views about the principles of the possibility?

Adrian Crossley: My own view is that judicial discretion should be king. I have not done any huge research into this, but in my view and from my practice, sentencing guidelines have become very prescriptive and they almost railroad judges into decisions. Judges always have parameters to work within, but what is before the court is often something that is necessarily unique. Minimum sentencing can shackle decision makers who are acutely aware of the facts in front of them.

The only benefit I see is in cases where there are overwhelming public interest concerns that mean that a minimum tariff would adequately address a specific mischief and would undo it. If I were to see that, I would regard that as a pro for minimum sentences. I would need to see an evidence base that that would achieve that.

Phil Bowen: I agree with what Adrian says. In general, a lot of the evidence from, for example, the United States on mandatory minimums is not encouraging, but I see an argument for Parliament identifying particular crimes of concern and putting those in place. We should be clear that the deterrent effect of that is likely to be pretty mixed. The evidence is pretty mixed about whether that kind of thing really does deter future crime, but I can see the public need for the Government to be seen to respond to public desires around particular signal crimes. That is why, although I do not reject them out of hand, I agree entirely with Adrian that judicial discretion is extraordinarily important because judges will know the facts of the case much better than the press or the public watching on.

[Chris Philp]

Q In relation to the proposals to make curfews potentially longer and more flexible, do you think that will make community sentences potentially more effective and might, furthermore, potentially reduce reoffending?

Phil Bowen: I think the emphasis in the Bill and the White Paper on flexibility around the use of electronic monitoring is the strongest part of the proposals. What the Ministry seems to be doing, which I think is right, is to encourage probation officer discretion and the flexible use of electronic monitoring powers, both to control people where there is need for further control, and to loosen up things where they are doing well. Part of the problem with electronic monitoring to date has been far too rigid sets of curfews without the ability for probation officers to vary them while people are on community sentences. I certainly support that.

In terms of providing for longer periods of electronic monitoring, I can see cases where that may well be useful. The only note of caution that I would suggest to the Committee is that the evidence base suggests that for younger people—in particular, young adults who live at home and people assessed as low risk—longer periods of electronic location monitoring can have a backfire effect. In other words, it can lead to increases in reoffending. All that really means is that the Bill provides the powers that it does, and it is then the job of the probation service to use those powers as flexibly as possible and in line with the evidence.

[Chris Philp]

Thank you. I was going to ask about problem-solving courts, but I think that was covered adequately in earlier questions. I think Minister Atkins has some questions.

[The Parliamentary Under-Secretary of State for the Home Department (Victoria Atkins)]

Q This is a quick question for Mr Crossley. The CSJ has obviously done a lot of work over the years on gang crime and on the many levers we can try to use to address it. What is the CSJ’s view of serious violence reduction orders, namely the piloting of stop-and-search orders for known—in other words, convicted—knife offenders aged over 18?

Adrian Crossley: This policy actually has its origins in the CSJ. We are obviously very supportive of the serious violence reduction order. Just for clarity, and so I can answer that more fully, this is a post-conviction order. We regard it as being part of the wider system. We do not regard it as a stand-alone solution to knife crime in our country.

We see a very significant increase, not just in possession of weapon offences, but of violent offences perpetrated with the use of a weapon. What is clear to us is that we need to do something about that which is robust enough to challenge the mindset of someone leaving their home with a weapon. We draw from the group violence intervention models piloted in Boston in the US under Operation Ceasefire, which create a sort of pull-push effect. We really want to deter people from being able to leave the home feeling that they are safe walking around with a weapon. They should know that they are much more likely to attract police attention if they are on these orders. At the same time, in the sentencing court, we would hope that the order would be able to include other, positive provisions—perhaps even a knife crime behaviour order. Real intervention, engaging young people and pulling them away from that sort of offending can also have a pull effect away from that kind of offence.

I should say that currently, as it is being piloted, it is only for adults. Our view is that knife possession is pervasive across a number of age groups: it is particularly concerning when young people are carrying knives. We would like to see this scheme really being rolled out, so that we can intervene early when people are younger, to see that we do everything we can to take knives off the street and keep people safer.

--- Later in debate ---

[Victoria Atkins]

Thank you very much indeed.

[Chris Philp]

Q May I start by asking Matt Parr if you have any views on the proposals for out-of-court disposals, in particular to simplify the current number of out-of-court disposals, cautions and so on from six down to two, following the pilot that took place in three force areas?

Matt Parr: I am really sorry. I have not looked at that. I cannot give you an answer, I am afraid.

[Chris Philp]

Q Not to worry; no problem at all.

Let me turn to Jonathan, if I may, going back to clause 108, which Alex Cunningham was asking about. This is in relation to prisoners sentenced for non-terrorist offences who are deemed to become high risk in the course of their sentence. To clarify, is your understanding of the clause the same as mine—that the Secretary of State does not have the power to unilaterally ask for their prolonged incarceration, but instead the Secretary of State simply has a power to refer the prisoner to the Parole Board, which will then make the assessment of dangerousness? It is the Parole Board that makes the decision, not the Secretary of State; the Secretary of State simply refers. Is that your understanding as well?

Jonathan Hall QC: Yes. I have it in front of me. I think the point that Mr Cunningham was making is that it is the Secretary of State who refers it, but you are right: it is the Secretary of State who refers it, but ultimately it is the Parole Board that decides.

[Chris Philp]

Q I think Mr Cunningham said that the Secretary of State took the decision, so I was simply seeking to clarify that the Secretary of State refers but the Parole Board decides. Mr Cunningham also made a point about the prospect of longer incarceration, and he quoted the Prison Reform Trust. Jonathan, can you confirm that no one can stay in prison for longer than the sentence handed down by the judge? What this is simply doing is potentially removing the release point, and removing the release point within a sentence— a sentence handed down by the judge that cannot be exceeded—is considered lawful and compatible with ECHR and other rights. Indeed, we have done it before, have we not, in changing the automatic release provisions in previous legislation?

Jonathan Hall QC: Yes, that is right. When the Terrorist Offenders (Restriction of Early Release) Act 2020—the emergency legislation that came in after the attack at Fishmongers’ Hall—transformed people from automatic release prisoners to people who would have to apply to the Parole Board at the two-thirds point, it had an effect on people who are currently serving. That was challenged in the courts by one of the affected prisoners, and the High Court concluded that it was consistent with article 7.

[Chris Philp]

Q Exactly, and this would have a similar effect. I was the Bill Minister for that Bill, and I was delighted that the High Court found our legislation to be lawful and compatible with human rights.

The final point that Mr Cunningham raised was in relation to the potential for a cliff edge if somebody serves all of their sentence in prison and is not released early. He referred to the possibility of a cliff edge, which exists in various other contexts that you have referred to already. Am I right in saying that if the Government, the security services or the authorities are concerned about the risk that a particular prisoner might pose following release if they were released without licence conditions because they had served all of the sentence, it would be open to the security services, acting through the Secretary of State for the Home Department, to apply for a TPIM if they felt the threshold was met? That would be one option available if they wanted to manage risk, accepting that TPIMs are rarely used.

Jonathan Hall QC: You anticipated what I was going to say. Yes, that is available, but TPIMs are very resource-intensive, and they are very rarely used for that reason.

[Chris Philp]

That is an option. That is extremely helpful clarification.

[The Chair]

Does anyone else have any questions?

[Alex Cunningham]

I misunderstood the line about the role of the Parole Board. I was concerned about what happens beyond the completion of the sentence. As the Minister says, the TPIM is used only in extremely rare circumstances, and it was unclear when that would apply and when it would not apply. Again, my concern is the cliff edge—somebody being released into the community without any licence conditions or further restrictions on their movements.

[Chris Philp]

Q To clarify, the serving of the full sentence is a matter for the Parole Board. It is open to the Parole Board to choose to release the prisoner after the automatic release point but before the end of the sentence, in which case there would be a period on licence between the release point and the end of the sentence. It does not follow automatically that they would be released with no licence period following, although it is possible.

[Alex Cunningham]

rose—

--- Later in debate ---

[Chris Philp]

Q I will not need all that time, because most of the points that I was going to raise have been helpfully raised already by colleagues. To return to the question of secure schools, I think you expressed in your answers at the beginning support for the proposed introduction of secured schools and gave a bit of flavour as to why you support them. Can you talk about the benefits that may be delivered by increasing the range of organisations that can be brought into the business of providing these services with the change being contemplated here?

Stephanie Roberts-Bibby: We would see the benefits very much related to the skills, experience and expertise that multi-academy trusts could bring into a secure school setting. As you may know, the secure estate is split into three different sections: secure training centres, secure children’s homes and young offenders institutions. The custodial element of those organisations is very strong and probably strongest in the YOIs and the STCs. The introduction of a very different model that accounts for children’s needs will not mean that they will not be secure; it will mean that they have a focus on education, mental health, and a trauma-informed approach to working with children who have complex needs, which is very much needed.

[Chris Philp]

Q Do you have any particular observations on measures we might consider to reduce offending, either in the Bill or, indeed, beyond it?

Stephanie Roberts-Bibby: Gosh. We could probably provide you with a significant amount of evidence on that and I would very much welcome the opportunity to do that in writing to the Committee.

We would suggest coming from the perspective of the child first and using the evidence base that has been developed recently, which focuses on children, their personal and social identity and their strengths, rather than being deficit-based. The evidence, which equally applies to adults, is that if you look for good and build on good, much more is achieved than if you tell people that they are no use and no good and cannot contribute to society.

We know that with children, the earlier we intervene, the better—early intervention and prevention, and targeting services upstream. That is a challenge for youth offending teams at the moment. They have statutory caseloads and trying to balance intervening earlier is really difficult. Some local authorities manage to do that better than others. There is a massive evidence base and we can share the evidence after the Committee today.

[Chris Philp]

Q My final question is on the remand review. What is the Youth Justice Board able to do to support the remand review and its subsequent implementation?

Stephanie Roberts-Bibby: We have been working really closely with the Ministry of Justice on the remand review. We are very keen to understand the data better and to have a look at the trends across the country. One of the things we would really welcome as, dare I say, an amendment to the Bill is for there to be a decision why bail is and is not granted. There is still a lack of evidence on what needs to change for more children to remain in the community, and we want to avoid perpetuating cycles of evidence.

You asked about what more we could do around the remand review. There is certainly something more we could do around trying to knit the system together better, through our heads of regions constantly having discussions with the sector around remand. We are doing quite a lot of work at the moment on developing alternative models for accommodation. We are working across London. We are investing in a pathfinder project to try to develop a different model for children, to prevent them being taken into the secure estate on remand.

[Chris Philp]

I think that covers everything I wanted to ask. Thank you for the work you are doing.

[The Chair]

If you do wish to furnish the Committee with further written evidence to support your comments, that would be most welcome. I think Mr Cunningham had a further question.

--- Later in debate ---

[Chris Philp]

Q I have one or two brief points. Mr Sweeting, you discussed remote hearings already; have you or your members seen during the pandemic evidence that using video and remote hearings is any more convenient for participants, both advocates and witnesses, or that the proceedings are any more efficient than they would ordinarily be?

Derek Sweeting QC: Two questions. Is it more convenient? Certainly, during the pandemic it has been important to have a method of holding hearings when we have to socially distance. Under the circumstances of the pandemic, it was vital. Remote hearings have enabled the family jurisdiction in particular to keep on working from the word go—it never stopped. Using technology in those circumstances in remote hearings was extremely helpful. It was certainly convenient during the pandemic.

Is it convenient for everyone? During the pandemic itself, we had some opposing views. Counsel certainly found it convenient, but one or two participants in family proceedings publicly said that they felt detachment from the proceeding. We have to recognise that there are reasons for being cautious about making the assumption that if it is convenient for legal professionals and judges, it is also necessarily a good experience for users. Certainly, there are whole categories of users for whom, if they cannot get to court or if they have mobility problems, the ability to have a hearing remotely is going to be valuable. Of course, we have been in a big laboratory, and we have tested a lot of these things in a way that we that we would not have been able to do in the decades before the pandemic. We need to take forward the best of remote and carry on using it.

Are there disadvantages? Yes, I think there are. There are experiences that we have all heard about, which are salutary and should make us be cautious about just assuming that we can always do things as well if we are doing them remotely.

[Chris Philp]

Q Thank you. You touched in one of your answers on the question of sentencing powers where a memorial—for example, a war memorial—might be desecrated, and you made some observations about the potential sentence length. It is the case, is it not, that sentences are always a matter of judicial discretion. Notwithstanding what the maximum may be, it will always be for the judge to decide what the appropriate sentence is, given the facts of a particular case. Is not the overriding consideration here that we are simply giving judges more discretion where a memorial may have a more symbolic value that goes beyond mere monetary value, and that we are simply recognising that in the statute?

Derek Sweeting QC: I am not sure that is right. The point that I was making is that the proposed amendment is to the mode of trial for a limited class of offences of criminal damage. That is the effect of the amendment. It removes the power for an offence involving a memorial to be tried in the magistrates court, however small the value of any damage. That was the point I was making earlier. I was really being asked whether that is a proportionate measure, and the point I was making is that there are some offences involving memorials where one would have thought that the magistrates’ powers are perfectly adequate, and it is not proportionate to require that matter to go to the Crown court.

[Chris Philp]

Q Okay. Although of course, as I say, the magistrate has limited sentencing powers, and there might be some cases, might there not, where the desecration may be of a sufficiently serious nature that the magistrate’s maximum sentencing power of six months may be inadequate. On some occasions, therefore—not in every case necessarily—the increased sentencing power of the Crown court might be appropriate?

Derek Sweeting QC: Well, there might be, but equally there might be cases where it is wholly unnecessary to go to the Crown court. Since the definition of “memorial” extends to moveable items, removing a bunch of flowers from a memorial amounts to the offence. It is difficult to see why that merits a trip to the Crown court. It is well within the magistrate’s existing sentencing.

[Chris Philp]

Q Is your understanding of the change that it makes it an either-way offence? Is it your understanding that it would be compelled to be held in the Crown court, as an indictable-only offence would be, or that it could be heard in either, as in an either way offence?

Derek Sweeting QC: My understanding that a mode of trial change is being contemplated under part 2.

[Chris Philp]

Q My final question relates, again, to judicial discretion. I am not talking about any particular offence; I am just asking in general terms. What are your general views about minimum sentences and how they interact with judicial discretion?

Derek Sweeting QC: There are obviously circumstances in which minimum sentences can be used. It is a matter for Parliament. You have to reflect on public disquiet and the need to make sure there is a sentencing regime that reflects the seriousness of offences. The general position is that if you have minimum mandatory sentences, you inevitably tie the hands of the judge to some extent. If you carry on extending that, you are making potentially significant inroads into judicial discretion. The lesson of sentencing is that cases generally need individual sentences because there are very complex differences between them. You were just making the point about judges having discretion to sentence according to the gravity and nature of the crime.

[Chris Philp]

Thank you, Mr Sweeting. I have no further questions.

[The Chair]

Does anyone else have any further questions? I cannot see anyone. In that case, Mr Sweeting, thank you very much for your evidence to the Committee. I thank all witnesses who gave evidence today to the Committee. That brings us to the end of our oral evidence session for today. The Committee will meet again on Thursday to take further evidence. We will meet in this room at 11.30 am.

Ordered, That further consideration be now adjourned. —(Tom Pursglove.)