Draft Nationality, Immigration and Asylum Act 2002 (Juxtaposed Controls) (Amendment) (No. 2) Order 2021

Chris Philp Excerpts

Monday 28th June 2021 General Committees

[The Chair]

Before we begin, I remind Members to observe 1 metre-plus social distancing and to sit only in places that are clearly marked. I also remind Members that Mr Speaker has stated that masks should be worn in Committee. Hansard will be most grateful if Members send their speaking notes by email to [e-mail].

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

I beg to move,

That the Cttee has considered the draft Nationality, Immigration and Asylum Act 2002 (Juxtaposed Controls) (Amendment) (No. 2) Order 2021.

It is a great pleasure to serve under your chairmanship, Mr Hollobone, for the first time, I think, but hopefully not the last. I will be brief as this is a relatively technical matter.

The draft order was laid in May in exercise of powers conferred by section 141 of the Nationality, Immigration and Asylum Act 2002. A previous instrument, the Nationality, Immigration and Asylum Act 2002 (Juxtaposed Controls) (Amendment) Order 2021, which was debated and passed by both Houses a few months ago, unfortunately contained a couple of technical errors, which the draft order corrects.

The UK operates border controls at certain locations outside the UK. These so-called juxtaposed controls are operated at channel tunnel control points on the other side of the channel, and at the seaports of Calais and Dunkirk. The order passed a couple of months ago made the powers exercisable by Border Force officers at the Calais and Dunkirk seaports the same as the powers exercisable by Border Force officers at the channel tunnel juxtaposed control points. It was a very reasonable order, which is why both Houses passed it, but unfortunately a couple of technical errors in its drafting have come to light. First, the provisions were made as a free-standing provisions, when in fact they should be inserted into the Nationality, Immigration and Asylum Act 2002 (Juxtaposed Controls) Order 2003. Secondly, there were two erroneous paragraph numbers in the order we passed a few months ago, which we need to change so that the references make sense.

I trust that this set of drafting changes is relatively uncontentious. We debated the substance of the draft order a couple of months ago. On that basis, I commend the draft order to the Committee.

[The Chair]

The debate can last until 6 pm. I call the shadow Minister.

--- Later in debate ---

[Chris Philp]

I thank the shadow Minister for both his support and his brevity.

Question put and agreed to.

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

Chris Philp Excerpts

Committee stage
Thursday 24th June 2021 Public Bill Committees

[Alex Cunningham]

My hon. Friend is, of course, correct: technology is moving so quickly, and so many different things happen in so many different ways. People can even get pictures on their watches these days and talk to their family back home. The fact that that sort of technology exists can be exploited for all the wrong reasons as well. It is important that we act in this space.

During Justice questions last month, my right hon. Friend the Member for Tottenham (Mr Lammy) raised the case of Phillip Leece to illustrate just how horrific a crime this can be. For members of the Committee who may not have heard the question asked by the shadow Secretary of State for Justice in the Chamber, I will quote what he said:

“In 2019…Leece viciously raped a woman on her way home from a night out; she was 26 and soon to be married. Adding insult to injury, he published the name of his victim online”

and made disparaging remarks about her appearance, claiming that she was

“too fat and disgusting to rape.”—[Official Report, 18 May 2021; Vol. 695, c. 522.]

For naming and humiliating his victim online, he received a pathetic and insulting fine of only £120. That in no way reflects the enormous trauma that his action caused the young girl he raped.

During Leece’s trial, his victim read out her impact statement to the court and spoke of the devastating impact that the attack and her subsequent naming had on her. She was once a happy young woman looking forward to getting married, but those events caused her to suffer severe psychological harm, which led to suicide attempts and incidents of self-harm. In her own words, she explained how her naming online changed the way she lived:

“The post made me feel incredibly insecure and sad for the days and weeks afterwards.

It increased my anxiety about leaving the house and it got to the point that I wouldn’t even go into the back garden whilst letting the dog out. I imagined that he would know where I lived and would be able to find me.

The post also led to me eating more and gaining even more weight…with the thought that the bigger I am, the less likely this will happen to me again.”

I am sure that all members of the Committee, regardless of political affiliation, will share my view that a fine in no way reflects the severity of Leece’s actions. I appreciate the Lord Chancellor’s sharing this view. In response to the shadow Justice Secretary’s question about Leece, the Lord Chancellor indicated that he was going to act in this area. Specifically, he said that the Government were

“already making preparations to see what can be done to improve and strengthen the law in this area, because, make no mistake, the naming of victims of sexual abuse—and other types of offending as well where anonymity is an essential part of the process—is not just wrong, it is criminal and we will do whatever it takes to help stamp it out.”—[Official Report, 18 May 2021; Vol. 695, c. 523.]

That view is shared wholeheartedly by the Opposition, and that is why we tabled new clause 31. It is another of those small but significant steps that we are asking the Government to take now, rather than waiting. It is clear to us that the current provisions of the Sexual Offences (Amendment) Act 1992 are simply no longer fit for purpose in the modern world. It is perhaps telling that the last time Parliament reviewed that Act was more than two decades ago, in 1999. I am sure that all of us would accept that since 1999 the world has changed a great deal—that was illustrated by my hon. Friend the Member for Rotherham. Online publishing and social media mean that things written on the internet attract an audience far greater than they would have in 1999. Furthermore, things published on the internet have much greater longevity and potential exposure. For those reasons, we need an urgent review of how the Act is functioning.

New clause 31 is a simple amendment: it would give judges the power to sentence offenders who name complainants of sexual offences to a custodial sentence of up to two years. That would bring this sentence in line with the sentence for contempt of court. Given that the Lord Chancellor has previously expressed sympathy for reforming this area, we look forward to the Minister’s support for the new clause.

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

It is, as always, a pleasure to serve under your chairmanship, Mr McCabe.

I thank the shadow Minister for raising this extremely important issue. The case he mentioned of Phillip Leece and his victim was truly terrible, and the impact on the victim was clearly appalling. As the shadow Minister said, the Lord Chancellor, in answering an oral question a short while ago, expressed the Government’s support for the principles enshrined in the new clause. We think that more needs to be done—we agree with the shadow Minister on that.

However, we would like to make sure that we do this in a thoughtful way, covering all the potentially related offences. The new clause, as drafted, covers the particular offences under the auspices of the 1992 Act. We take the view that some other prohibitions on naming victims and other restrictions would benefit from similarly enhanced penalties. Specifically, the new clause would not cover anonymity for victims of female genital mutilation, nor victims of forced marriage, who we think are equally deserving of protection and support, as I am sure Opposition Members would agree. In addition, other automatic protections apply to participants in youth court proceedings—defendants as well as victims—and discretionary protections can be imposed or handed down by the court to protect the identity of witnesses.

Besides the cases covered by the new clause, there are these other examples—female genital mutilation, forced marriage, youth proceedings and witness protection—that require action. This is an area, as the Lord Chancellor signalled, where the Government want to act in the near future by coming up with proposals that cover all these things. I know there is frustration: we have a Bill before Parliament, so why not do something now? However, other Bills are coming forward in the remainder of this Session that could be used as vehicles to legislate on this. It may be that the Lord Chancellor will say more about that before Report, because it is being worked on actively at the moment.

[Alex Cunningham]

Is the Minister giving a commitment that this particular offence will be covered by some form of legislation from the Government in this Session?

[Chris Philp]

I am coming close to saying that. I am saying that this is something that the Government are currently looking at. The Government accept the need to act on this, as the Lord Chancellor said, and on those other offences as well. I do not want to say too much before we are in a position to do so properly, but there are intentions to put in place a process to properly review these offences, on an expedited basis, with the intention of legislation then following. That is where the Government are coming from on this. I hope that it will be possible to say more on Report.

[Mr Robert Goodwill (Scarborough and Whitby) (Con)]

Does my hon. Friend agree that he is probably coming as close as he can—within his pay grade—to making that commitment?

--- Later in debate ---

[Chris Philp]

I thank my right hon. Friend for reminding the Committee and me exactly where I sit in the hierarchy of Government. As a former senior Minister himself, he will know that my authority is limited in these circumstances, and indeed in all circumstances. I hope I have given a pretty clear indication, so far as I am able to, of where the Government will come out on this. We essentially accept the point, but change needs to be done properly, and we need to catch the other offences as well. I hope that gives the Committee a clear sense of where we are on this.

[Alex Cunningham]

I do not know what my pay grade is. I do not think I get paid, do I? The Minister talked about the principle of all this, but we get to a point where we have to leave principles behind and take some action. I assure him that I am also approaching the matter in a thoughtful way, with the support of my hon. Friends and of victims. We would not have tabled the new clause if we did not feel so very strongly about it.

I know that in other places, deals around legislation are normally done in tight little groups behind closed doors, but I am prepared to make a deal with the Minister here and now, in public. My deal is this: support our new clause today, and I will deal with the things that he says it excludes by introducing a further amendment on Report. Indeed, if he wants to table amendments at that stage, I will make sure the Opposition support him.

[Chris Philp]

I appreciate the shadow Minister’s point, but the truth is we will not have had the chance to deal properly with all the other offences by Report, which is in just a week and a half, on 5 July. I wish I could, as he puts it, strike a deal, but as my right hon. Friend the Member for Scarborough and Whitby rather cruelly pointed out, I do not have the authority to commit the Government here. I hope I have given a very clear indication of our intention. We will not get all these details worked out in the next week and a half, but we will get this sorted out together.

[Alex Cunningham]

I am sorry to make the Minister uncomfortable about his pay grade, but we need to move forward with this and there is an opportunity to do so. The Minister says that it is only a week and a half until Report, but this new clause has been on the amendment paper for many weeks, and we have been planning for this Committee for many months. I think there has been sufficient time for the Government to do the right thing here, and I intend to push the matter to a vote.

Question put, That the clause be read a Second time.

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

Chris Philp Excerpts

Committee stage
Thursday 24th June 2021 Public Bill Committees

Given all the debates that have already taken place on this subject, I hope that it would be hard for the Government not to accept the new clauses. Workers deserve dignity and respect at work. We are ready to work with the Government to improve this legislation, to protect our key workers and ensure that the system can deliver them the justice they deserve.

[The Parliamentary Under-Secretary of State for Justice (Chris Philp)]

I thank the shadow Minister, my constituency neighbour, for introducing these new clauses. I join her in paying tribute to the retail workers and others who have kept our country going over the past 12 to 18 months, often in difficult circumstances. I know that we are all very grateful for what they and others have done. I have a great deal of sympathy for retail workers. My first regular paid job was in Sainsbury’s at West Wickham, which the shadow Minister will know is a short distance from the boundary of her constituency.

We take the issue seriously and, as the shadow Minister said, we had a Westminster Hall debate on this topic three or four weeks ago, when a number of Members described various forms of abuse and assault that their constituents had suffered. Most of the assaults given as examples would have been charged not as common assault with a maximum sentence of six months, but as a more serious form of assault—for example, assault occasioning actual bodily harm, which carries a maximum sentence not of a year, as per the new clause, but of five years. Indeed, in more serious cases involving knives and so on where people are convicted of grievous bodily harm with intent to commit grievous bodily harm, the maximum sentence is not a year, as per the new clause, but life.

There are a number of criminal offences on the statute book that cater for the serious offences described graphically in that Westminster Hall debate. In such cases, a charge should be laid and a higher sentence—higher even than that contemplated by the new clause—could and should be given.

There is also the question of whether current law adequately recognises retail workers and other public workers when a sentence is being passed. The law already recognises that such people are to be treated somewhat differently if the victim is, for example, working in a shop, and the sentencing guidelines, which the shadow Minister mentioned and which were updated a few weeks ago, make it clear that if there are aggravating factors the sentence passed will be longer than it otherwise would be. The fourth aggravating factor on the list is an

“offence committed against those working in the public sector or providing a service to the public”.

That would obviously include retail workers, transport workers and others.

Not only do we have offences on the statute book already—many of which have much longer maximum sentences than the maximum called for by the new clause, such as five years for actual bodily harm—but the fact that the victim was providing a service to the public already represents an aggravating factor that leads to a longer sentence.

On particular things that have happened during covid, the case of Belly Mujinga, which the shadow Minister mentioned, occurred at Victoria station. I think Belly Mujinga worked for Southern Railway, which is the company that serves our two constituencies. The new Sentencing Council guidelines published a few weeks ago incorporated some revisions, which I think help. There is a new aggravating factor of deliberate spitting or coughing. A new factor—

“Intention to cause fear of serious harm, including disease transmission”—

increases culpability, which increases the sentence.

Therefore, if that person’s action—this would apply to a case such as that of Belly Mujinga—included such an intention, that is taken to increase the culpability of the offender. Those changes were made to the sentencing guidelines a few weeks ago, so we have offences on the statute book with long maximums such as five years, or life for GBH with intent. We have aggravating factors that apply in respect of retail workers, and indeed other people serving the public. We have new sentencing guidelines, which speak to things such as spitting and causing fear of serious harm in relation to transmissible diseases.

Is there a problem? Yes, there is, but I do not think that it is with the sentences; it is with the reporting and the prosecutions. Shockingly, in a survey prepared for the Home Affairs Committee that I think the shadow Minister has seen—I referred to it in our Westminster Hall debate—of the 8,742 shop workers responding who had been victims of this sort of crime, only 53% reported the offence to the police. Half the victims did not even report it, so we need to do a lot more to make sure that victims report this crime.

[Sarah Jones]

The Minister is making the arguments that I thought he would. They are perfectly reasonable, but I come back to him on the point that one of the problems is the tiny proportion of prosecutions and another is the huge increase in assaults against all these groups of people. He makes the point that a lot of people do not report these crimes, but Parliament and the Government could send a strong message, as the Government did with war memorials: they said that they were not necessarily expecting lots of prosecutions, but they wanted to send a strong message to the public about the importance of memorials.

For Parliament to send a strong message would be a really powerful way of encouraging shop workers to report these crimes. Although sentencing guidance is important, I do not think that the public know about it or would be able to tell us that it was changed a few weeks ago, whereas making it clear that this is something we want to set out in law would send a message to all those people who do not report these crimes. It might help.

[Chris Philp]

I think the sentencing guidelines are important. Addressing coughing, spitting and causing fear of infectious disease transmission is important, as is the recognition that public sector workers and people providing a service to the public get in the sentencing guidelines. The shadow Minister says that they are not important; I think they are, because they are what the judge looks at, day in, day out, when deciding what sentence to hand down.

When it comes to getting more incidents reported, investigated and then prosecuted, we first need to look at why people are not reporting them. Again, the survey sheds light—3,444 people replied to this question. The top reason for not reporting the offence, cited by more than a third of respondents, was

“I did not believe the employer would do anything about it”.

Shockingly, the second was

“I believed it was just part of the job”,

which of course it is not; the third was

“I considered the incident too minor”;

and the fourth was

“I did not believe the police would do anything about it”.

Clearly there is a perception issue around this crime that we need to sort out. The Minister for Crime and Policing is leading a taskforce designed, first, to get employers to better support their employees when it happens. Although 87% of people—almost all—tell their employer, only 53% report it to the police. I infer by subtracting one number from the other that in 34% of cases, employers who know about the crime are not supporting their employees to report it to the police. Employers need to do more. To be honest, I think that the police will be doing more in this area as well, guided and encouraged by the taskforce that the Minister for Crime and Policing is running. We have the laws and we have the aggravating factors, but we need more reporting and more investigation, and there is a taskforce dedicated to doing that.

Let me make a couple of specific comments on new clause 45—the retail worker clause—and new clause 46, which would add health and social care workers and transport workers, who of course are very important but are also protected under the Sentencing Council guidelines because they are both in the public sector and providing a service to the public. Even taken together, the two new clauses arguably have some omissions. For example, teachers—who I would say deserve no less protection than the other groups—are not mentioned at all; nor are people who serve their communities doing refuse collection or work in parks. All kinds of other workers who serve the public or work in the public sector, and who are equally deserving of protection, are not mentioned in the new clauses, but all those people are rightly covered by the Sentencing Council guidelines.

There is more work to do, which the taskforce is doing. We need retail employers to support their staff much more, and we need the taskforce to do its work of increasing reporting and prosecutions, but the offences are on the statute book already, with maximum sentences of five years —or even life, for GBH with intent. The aggravating factors are there, so let us get these crimes reported and get them prosecuted. That is how we will protect retail workers.

--- Later in debate ---

[Sarah Champion]

I thank the hon. Member for Stroud for moving the new clause tabled by the hon. Member for Tonbridge and Malling. The hon. Member for Stroud has done the legal bit, and I am going to do the emotional, child abuse bit.

I think all hon. Members know who Tony is, because he is on BBC Breakfast a lot. He is a little lad. I do not know how old he is now—probably about eight. His legs are amputated, but he has been doing a walk around his local park every day to raise money for the NHS. I did not realise until very recently that he was the Tony this law is named after. It was only when I saw him and his adoptive parents on BBC Breakfast making the argument for this that I thought, “This is an obvious legal change that clearly needs to be made.”

Under current law, 10 years is the maximum sentence that judges can impose when someone has been convicted of child cruelty, causing harm or allowing a child to die or suffer serious physical harm. It is just madness! Someone who is guilty of intentionally causing grievous bodily harm to an adult can face a life sentence in the most severe cases, so I do not know why this cap of 10 years is in place. Surely, for offences that result in severe physical harm to children and lifelong harm, which will be much longer than lifelong harm to an adult, courts ought to be able to impose the sentence that they think is most fitting.

The proposed change to the law follows the tireless campaigning by the adoptive parents of Tony Hudgell. As the hon. Lady said about the injuries inflicted on Tony, it is truly unimaginable that someone could consciously do that. A change in the law would give the judges the discretion they need to pass longer sentences, including in the most horrific cases such as Tony’s. We are thankfully talking about a relatively small number of cases. In the past five years, there were an average of 68 child deaths a year caused by assault or undetermined intent. Child homicides are most commonly caused by a parent or step-parent. Children under the age of one are the most likely group to be killed by another person.

National Society for the Prevention of Cruelty to Children analysis of police data from across the UK shows that there were 23,529 child cruelty or neglect offences recorded by the police in 2019-20. Although there are significant variations among regions and nations, it is extremely concerning that the police-recorded child cruelty and neglect offences have risen by 53% in the past three years. I am perversely curious to see the data that comes out of this past year, because anecdotally I understand, from my police force and from what we are reading, that the levels of child abuse have escalated under lockdown. That should not come as a surprise, but it is deeply chilling to all of us.



The latest ONS figures available for England and Wales are from 2018: 500 offenders were sentenced for offences of cruelty and neglect of a child; 114 of those offenders received an intermediate custodial sentence; and 220 received a suspended sentence.

Over the past year, the NSPCC has seen the impact of the coronavirus pandemic on physical abuse, as I mentioned. Calls to its helpline surged through the pandemic to record numbers. Tony’s case represents the most severe form of physical abuse. However, while extreme, it is not an isolated example. There have been a number of court cases and serious case reviews containing disturbing details of how children have been severely physically abused, often over a prolonged period. Alongside that, it is important that we see wider changes, including greater public awareness, so that adults can spot the signs of abuse and reach out if they have concerns about a child, and additional resources for local authorities, so that early intervention services and children’s social care can respond effectively when they think a child is at risk.

Cuts to funding and the rising demand for support has meant that local authorities are allocating greater proportions of their spending to late intervention services, while investment in early intervention is in many cases just not there. Early intervention is my personal crusade because, surely, prevention at the earliest possible time is what we all ought to strive for. We need to see a child-focused justice system that does not exacerbate the trauma that young victims and witnesses have already experienced. Positive experience of the justice system can help them move forward, but negative experience can be damaging and, for some children, retraumatising.

We need increased capacity and investment in the criminal justice system, so that policy and procedures may progress cases efficiently and delays may be reduced. Children need to have access to specialist assistance measures in court, such as assistance from a registered intermediary who can support a young victim or witness in giving evidence. Therapeutic support for children who have been experiencing abuse and neglect needs to be universal and easily accessible. That is vital to enable children to process the trauma that they have experienced, to begin to heal and to move forward.

I understand and know that the ability to impose a stronger sentence is not the panacea, but it is really important that at the very least, child abuse is on a parity with adult abuse in terms of sentencing. I hope that the Ministers will support the new clause and, by doing so, show their dedication to tackling child abuse and to proportionate sentencing for that horrendous crime.

[Chris Philp]

The case of Tony Hudgell is truly heart-breaking. The abuse that he suffered at the hands of his birth parents is shocking beyond expression. In fact, I met his adopted mother, Paula, only a few months ago. We discussed the case and what happened at some length. It is something that I have become personally acquainted with not so long ago.

It is worth making it clear that where it is possible to prove who specifically inflicted the abuse, these offences do not need to be charged and instead the more usual offences can be charged, such as grievous bodily harm with intent, which carries a maximum sentence of life. The problem that arises in cases like Tony Hudgell’s is where it is not possible to prove specifically who it was who carried out the offence. He had two birth parents and it could have been either of them.

As I understand it from that case, there was no way that the court, the prosecution or the police could prove which of the two birth parents it was. That means they could not be charged with the regular offence—such as GBH with intent—that would have carried a life sentence. Instead, therefore, they fell back on the other offence, which we are debating now: causing or allowing, in which it cannot be proved that someone actually did it, but we can say they allowed it. If people cause or allow the death of a child or vulnerable adult, the maximum penalty is 14 years or, in the case of causing or allowing serious physical harm to a child or vulnerable person, a maximum of 10 years. That was the offence charged in the Hudgell case.

I have been informed that we have conducted a review of charges under the clause, and my understanding is that the only instance where the judge went all the way up to the maximum of 10 years was in that case. It is clear from the sentencing remarks that the judge would have gone further, but I think it is the only case where the judge has gone to the maximum.

Even though the case is the only one, it is so appalling, and I have discussed it with the Lord Chancellor, who will look at it again. It is a delicate area of law to pick through because it cannot be proved that it was the particular person who has been convicted—it could have been one of two—and it therefore requires a bit of thought.

--- Later in debate ---

[Maria Eagle]

You are only the Minister.

[Chris Philp]

I am not Lord Chancellor, though.

We might separate the “cause” part from the “allow” part because “cause” and “allow” are somewhat different.

[Maria Eagle]

If we separated “cause” and “allow”, would we not be in the same position of not being able to prove which of the parents did the deed?

[Chris Philp]

The “allow” part could conceivably apply to both where there are two parents. It can probably be established that they must have been aware of the abuse because they must have noticed the kind of abuse we are talking about, but it cannot necessarily be proved that they did it or even that they caused it. Currently, it is “cause or allow” in the same offence, with the same maximum penalty. One could make a case that the “cause” bit is more serious than the “allow” bit, so they might have different maximum sentences. I have a commitment from the Lord Chancellor that I can relay to the Committee.

[Maria Eagle]

I am going to be pedantic now, but if the offences are separated yet the cause cannot be proved, the charge will have to be on the “allow” bit, which is the lower level of offence.

[Chris Philp]

Yes. We could have different maximum penalties for each of those, and even the lower one could be higher than the current penalty, so we could still make progress from where we are today.

I have a commitment from the Lord Chancellor that he will look at this in broadly the way that I described, also looking at the 1933 Act.

[Sarah Champion]

I am listening intently to the Minister. Is it his assumption that the Lord Chancellor will look at this before Report?

[Chris Philp]

Honestly, I would not have thought so. That is only a week and a half away, but I will pass that representation on. I know hon. Members want to hear at an early stage, such as Report.

[Sarah Champion]

It is only so that we do not lose the legislative opportunity.

[Chris Philp]

I understand. I will convey the hon. Lady’s point. As I have said two or three times previously, there are several other Bills in this Session that might be suitable for reform. This is not a “one chance and it is gone” situation. My main purpose in speaking today was, first, to pay tribute to Tony’s adoptive parents and to Tony for his bravery, having suffered such appalling abuse, but also to tell the Committee that the Lord Chancellor is actively and seriously considering this important area.

[Siobhan Baillie]

We will follow the matter through, but in view of the Minister’s comments and the Lord Chancellor’s commitment, I shall not press this to a vote today. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

--- Later in debate ---

[Chris Philp]

I am conscious of time, so I will try to respond concisely. On new clause 67, when the offender has crossed a significant age threshold such as the age of 18 between committing the offence and being convicted and sentenced, the sentencing guidelines already say that the sentence that should be adopted as a starting point is that which would have applied at the time of the offence—that is to say, when the offender was younger.

Courts already have a duty under section 59 of the Sentencing Act 2020 to have regard to sentencing guidelines in those cases unless that would be clearly contrary to the interests of justice. The new clause would not make any material difference to the way the system operates because of the sentencing guidelines currently in force.

On the more general points about maturity and how people take until the age of 25 to mature, as the shadow Minister said, we have debated the issue many times—in particular, almost exactly a year ago during the passage of the Counter-Terrorism and Sentencing Act 2021. Pre-sentencing reports, which are prepared, take into account, and judges then take into account on sentencing, the maturity of the defendant when they are being sentenced.

The shadow Minister made some points about court backlogs, which I am going to address only briefly. Obviously, court backlogs have developed as a consequence of coronavirus, which is the case across the world. Huge extra resources—more than half a billion pounds—have been put into reducing those outstanding case loads, which in the magistrates court are falling consistently, as they have been for quite some time. Of the excess case load caused by coronavirus, about half has been eliminated already. Every week that goes by, the outstanding case load drops by—the last time I checked—about 2,000 cases.

On the Crown court, we have nightingale courts. There are no limitations on sitting days, and I believe the corner has been turned. Looking forward to a time when social distancing is eased in the very near future, I expect the courts will be running even more cases.

As the shadow Minister generously recognised, the Bill significantly reduces rehabilitation periods for children and for adults, which I think we welcome across the Committee. On the starting point, or the rehabilitation point, the regime that applies is calculated from the point of conviction, rather than the point of offence.

[Alex Cunningham]

Regardless of the duty on the court to which the Minister refers, it remains a fact that children are receiving sentences under the adult regime. There is no two ways about that. What concerns me most is the rehabilitation period. A child who commits an offence as a 17-year-old who does not appear in court until he is 18 can end up with a rehabilitation period of four years, which takes him to his early 20s. All that time, if he is applying for a job or with respect to other activities, he must declare that. That is a real concern for me.

I am not going to push the new clauses to the vote at this time, but the Government need to do much more thinking in this area and start treating children as children. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 69

Poaching of game

“(1) The Game Laws (Amendment) Act 1960 is amended as follows.

(2) In section 2(1), after “committing” insert “or has committed”.

(3) In section 4(1)—

(a) after “section thirty” insert “or section thirty two”, and

(b) at end insert “or any animal, vehicle, or other article belonging to him, or in his possession or under his control at the relevant time.”

(4) In section 4(2), after “gun” in lines 2 and 4 insert “, animal,”.

(5) In section 4, at end insert—

“(6) The court by or before which a person is convicted of an offence under either the Night Poaching Act 1828 or the Game Act 1831 may order the offender to reimburse any expenses incurred by the police in connection with the keeping of any animal seized in connection with the offence.”

(6) In section 4A(1)—

(a) in line 1, after “under” insert “section one or section 9 of the Night Poaching Act 1828 or”,

(b) after “thirty” insert “or section thirty two”, and

(c) omit “as one of five or more persons liable under that section.””.—(Mr Goodwill.)

This new clause is intended to broaden the powers available to the police and the courts for dealing with illegal hare coursers, measures include providing for forfeiture of animals on conviction and permitting the recovery of expenses incurred by the police in housing a seized animal.

Brought up, and read the First time.

--- Later in debate ---

[Chris Philp]

I am grateful to the shadow Minister for raising this issue. The Government do support the principle behind the amendment. New parents, including those breastfeeding or women who are pregnant, should be able to serve on a jury at a time that is suitable for them. As the shadow Minister has said, we are aware of some of these cases that we have corresponded about in recent months and, as a consequence, have already updated the guidance that Her Majesty's Courts and Tribunals Service uses to ask that a more accommodating and sympathetic approach is taken to somebody who responds to a jury summons by saying that they are pregnant, breastfeeding, or have very significant caring responsibilities in the way that he has described. Where that happens, a deferral is always considered in the first instance.

The hon. Gentleman mentioned the application process. Clearly, the summoning bureau will not necessarily know who is pregnant or who is looking after a child, so it is inevitable that there will always be some kind of application process; that cannot be avoided. The thing is that it is done in a way that is sympathetic. As I have said, that guidance has been changed already. We have also updated www.gov.uk'>www.gov.uk'>www.gov.uk'>www.gov.uk  to make it clear that these are all legitimate reasons for requesting a deferral. I hope that a combination of that publicity on www.gov.uk'>www.gov.uk'>www.gov.uk'>www.gov.uk and the work on updating the internal guidance in response to some of the cases that the hon. Gentleman and his colleagues have raised addresses the underlying issue. We still think that a case-by-case consideration is appropriate rather than a blanket provision such as this, which perhaps does not capture all of the circumstances that may arise. Allowing discretion to continue is the best way of handling this, but the sentiment—the direction of travel—is exactly the same as that of the hon. Gentleman.

There are, in the way in which this new clause is drafted, some idiosyncrasies. For example, on a technical point, the hon. Gentleman refers to parental leave, but there are other forms of leave that do not count as parental leave. Maternity leave and adoption leave, for example, are considered as a different form of leave. I am sure that this was inadvertent, but, as drafted, some of those groups that one would wish to include have been unfortunately omitted. We are on the same page as the Opposition on this, but the change in the guidance and the publications on www.gov.uk'>www.gov.uk'>www.gov.uk'>www.gov.uk  address the issues that have been raised.

[Alex Cunningham]

The Minister had an over-complicated response to what I thought was a relatively simple and straightforward matter. He talked about supporting the principle and he talked about sentiment. Surely, we could save the time, expense and, of course, the anguish around this process. Of course, there will have to be some communication between the person called for jury service and the court, but that could be very simple: “Dear court usher, or whoever you are, I am currently pregnant, or currently breastfeeding, please may I have the exception that is granted under Labour’s excellent amendment to this particular Bill.” It is very straightforward, and I cannot understand for the life of me why the Government cannot just say that if somebody in such a situation does not want to do jury service, they should not have to do it. For that reason, I shall press the matter to a vote.

Question put, That the clause be read a Second time.

--- Later in debate ---

I thank Dr Imogen Jones of Leeds University, a specialist in this area of law, for her help in drafting the new clauses. I will end by paying tribute to Marie McCourt, who has continued to highlight these issues following her success in changing the law in March 2020. It would surely be a fitting testament to her tireless campaigning to see these new clauses passed into law, and it would also serve as a legacy to daughter’s name.

[Chris Philp]

I thank the shadow Minister for his speech and for introducing this new clause so eloquently. He mentioned the tragic case of Helen McCourt, which I am sure is on our minds as we debate this new clause. Along with the hon. Member for St Helens North (Conor McGinn), I have met her mother Marie McCourt, who has campaigned tirelessly on this issue for many years, which led ultimately to the passage, as the shadow Minister said, of Helen’s law a few months ago. It was a privilege to take it through the House of Commons as the Bill Minister.

The Government once again are very sympathetic to the sentiments and the intention behind these new clauses, and I would like to look briefly at new clauses 83 and 84, which combined seek to repeal and replace two common law offences, as the shadow Minister has said. New clause 83 would repeal the common law offence of obstructing a coroner, replacing it with a statutory offence, while new clause 84 seeks to repeal the common law offence of preventing lawful burial.

It is worth just saying that, as with many common law offences, they are quite wide-ranging measures in their scope and cover potentially quite a wide range of behaviour. One of the risks we run when we seek to codify the common law—as we sometimes, or indeed often, do—is that we may inadvertently narrow the scope of the existing common law provisions. Of course, we will also be reducing the maximum sentence, because as common law offences these offences currently have a maximum sentence of life whereas by creating a statutory offence, as these new clauses seek to do, there would be a specified much lower maximum sentence.

It is worth saying that the common law—as, too, the non-common law—does cover the question of concealing a body in various ways. In circumstances where an offender is responsible for a homicide, the fact that they concealed or mutilated the body is already taken, not as a point of common law but as a point of sentencing guidelines, as a clear aggravating factor at sentencing. Therefore, on conviction the sentence will be increased, reflecting the fact that the sort of behaviour the shadow Minister has described has occurred. Where the concealment of a body is part of a course of action that includes the killing, the sentence for murder would again include that as an aggravating factor in deciding the starting point for the sentence. If we have a separate offence, the danger, of course, is that the offences may be served concurrently, so we may not have someone in prison for any longer, whereas if it is an aggravating factor for the main offence, we may well get a longer sentence. We need to be mindful of those technical reasons that might inadvertently have the opposite effect to that intended.

It is also the case, of course, that once someone is convicted of an offence of this kind—this includes refusing to disclose the location of the body—we have legislated via Helen’s law, as the shadow Minister said, that the Parole Board is now obliged as a question of statute to consider the non-disclosure of the whereabouts of the body when making release decisions. That was previously in parole guidelines but is now statutory, which also sends a message to the Parole Board about how strongly Parliament feels about this. Non-disclosure could also lead to a later release point. All those points are important to bear in mind.

On new clause 84, which seeks to deal with the desecration of a body, the meaning of acting with severe disrespect to a corpse could, under the new clause as drafted, include several circumstances such as mutilation, hiding or concealment, unlawful burial or cremation, or otherwise preventing the lawful burial of a body. It could also mean taking photographs of bodies where it is inappropriate or unnecessary to do so. The Government completely understand the thinking behind the new clause, because, of course, the bodies of those who have passed away should be treated with dignity and respect.

A number of existing criminal offences can already be used, such as preventing lawful burial and decent burial, as well as perverting the course of justice if the activities are designed to prevent justice from being done. Those are common law offences with a maximum penalty of life, as I said. There are also statutory offences such as disposing of a child’s body to conceal a pregnancy or burning a body other than in a crematorium, as well as offences that can apply in some circumstances, such as misconduct in public office if such a person—that could even include a police officer—is in public office.

The desecration of a body is likely to be connected to another offence. Therefore, as with the previous new clause, an act of desecration is likely to be an aggravating factor in sentencing the other offence, which might be murder or manslaughter, resulting in a more severe penalty. Again, we come to the question of concurrency: if a separate offence is created, the two sentences might run concurrently, whereas if instead the act aggravates the main offence, there may be a longer sentence. Those points are worth making.

The intention of the new clauses may be to ensure that people who commit such acts would spend longer in prison, and we obviously sympathise with that, but it is possible that, for the reasons I have mentioned, they would not achieve that effect. Such matters can be reflected either through the existing common law offence or as an aggravation to the principal offence. We now have Helen’s law regulating release from custody where that happens.

The Government recognise the campaigning done by Marie McCourt, and I know that the Lord Chancellor has met her as well as the hon. Member for St Helens North. The Lord Chancellor has met her a number of times and I have met her as well. We want to continue discussing these issues with Marie and her family and to think about whether there is anything else we can do to ensure that the awful circumstances we are discussing are fully reflected beyond even what I have already described. We are receptive to ideas in this area and are happy to talk about them and think about what else can be done, but, for the reasons about the precise way in which the new clauses are crafted, we do not think they would take the law as it stands any further forward. However, we are happy to work with Marie, the hon. Member for St Helens North, shadow Ministers and others to see if there are other things that we can do.

[Bambos Charalambous]

On the basis of what the Minister has said, I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

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

Chris Philp Excerpts

Committee stage
Tuesday 22nd June 2021 Public Bill Committees

[Sarah Champion]

It is always a pleasure to serve under your chairmanship, Sir Charles. I am fully supportive of new clause 3, because I think it addresses a rather patriarchal approach that is going on and needs flushing out. The all-party parliamentary group on women in the penal system recently released its third briefing report, “Arresting the entry of women into the criminal justice system”, and its key finding was that 40% of women arrested resulted in no further action. That figure is even higher for women who are arrested for alleged violence.

That shows to me that women are being arrested and put into custody disproportionately, without the necessary due process in terms of what the outcome is likely to be. This creates a drain on police resources and, to be quite honest, is a waste of time, as arrest is not an appropriate response to women showing challenging behaviour. We need a more nuanced approach. Many officers arrested women for fear of criticism from more senior officers if they did not, and black women are two and a half times more likely to be arrested than white women, which raises concerns. Officers need to realise that turning up in a uniform can actually make a situation much more tense, and many women are arrested due to their response to the police turning up, not necessarily because of what the police were called in for. Frances Crook of the Howard League put it very well when she said that these women are annoying, but not necessarily dangerous.

I am interested to hear the Minister’s thoughts on Lancashire police, who have started a pilot through which they bring independent domestic violence advisers to the scene where domestic altercations are going on. Officers are reporting that they have found that incredibly useful in de-escalating the situation, rather than just going straight to charging or bringing the woman in for their own protection. The new clause raises the points that first, there is a problem with the system, and secondly, more creative approaches can be used, so I am very interested to hear the Minister’s thoughts on it.

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

As always, it is a pleasure to serve under your chairmanship, Sir Charles. New clause 3 seeks to remove the provision in the Bail Act 1976 for a defendant to be refused bail where the court feels it is necessary for their protection—or, in the case of children, their own welfare—that they are remanded in custody. It is extremely important to make clear to the Committee that this provision is used very rarely. It is considered to be a last resort, and it is only used when there are no alternatives, so we should be in no doubt that this is an unusual provision to use.

[Maria Eagle]

“Rare” is a relative concept. Would the Minister like to tell us how many people were remanded in this way during, say, the last year for which he has figures?

[Chris Philp]

I am afraid that I do not have that precise figure to hand: I was relaying reports I have received from people who are active in this area. I can certainly see if that figure exists, and if it does, I would obviously be happy to share it.

The intent behind this amendment is clearly to ensure that prison is used only when strictly necessary. Of course, when somebody has a mental health crisis, for example, prison is not ultimately the best place for them to be, but there may be limited circumstances in which it is necessary to use remand for someone’s own protection—as a last resort, as I say. There is a risk that if we abolish this power without being absolutely clear what the alternatives are, vulnerable people could be left exposed. The Government agree with the sentiment behind this amendment, but we want to be certain that there will be no unintended consequences and no gaps created as a result.

[Alex Cunningham]

The Minister made the point that the use of this provision is very rare and that prison should be used only as a last resort. I accept that, but surely for such people we should ensure that there are facilities across the country, so that it is not necessary to remand a person, in any circumstances, to prison for the good of their own health.

[Chris Philp]

Clearly, the provision of alternative accommodation in those circumstances is the most desirable outcome. We need to think carefully and make sure we have covered the full range of circumstances that may arise. That is why the Government have committed to a review of this issue. We have already written to the all-party parliamentary group on women in the penal system to set out our plan for this, so that is in the public domain. I know the Howard League for Penal Reform has been campaigning in this area and it will be consulted as part of that review.

[Maria Eagle]

I am grateful to the Minister for giving way again. I welcome the fact that he is going to conduct a review. In doing that, could he see whether any research already exists or do some research on what the outcomes are for the small number of people who are remanded in this way? I can certainly see circumstances in which they might end up in a worse state than they would have done had they not been remanded in such a way. That is important if the Minister is considering whether to get rid of these provisions.

[Chris Philp]

Yes, that is exactly the type of question the review should consider, along with the counterfactual question of what would happen if this measure is not used. Both alternatives need to be considered to reach an informed decision.

[Hywel Williams (Arfon) (PC)]

When that review takes place, can the Minister ensure that there is particular consideration of alternatives in very rural areas? Currently, women in Wales are generally held outside Wales, for example at HMP Oakwood, as there is no local provision.

--- Later in debate ---

[Chris Philp]

Yes, consideration of the available provision needs to form part of the review to ensure that, if the option were to be withdrawn, rarely used though it is, appropriate provision across the jurisdiction of England and Wales would be available.

As this is a complicated issue, and we do not want to accidently cause a gap in provision, and because a review has already been commissioned to look at the issue, I respectfully ask that the new clause is not pressed.

[Alex Cunningham]

I accept what the Minister says about unintended consequences. It is important that the individual is always protected. My hon. Friend the Member for Garston and Halewood has welcomed the review into this, and I do too. I also welcome the fact that the Minister responded positively to my hon. Friend when she talked about an outcome study about the people who are actually involved.

I look forward to hearing from the Minister at some time in the future about how that would work, to ensure that we work in the best interests of the people who are affected by this situation. We may well want to return to the matter in future, but for now, I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 4

Video recorded cross-examination or re-examination of complainants in respect of sexual offences and modern slavery offences

“(1) Section 28 of the Youth Justice and Criminal Evidence Act 1999 comes into force in relation to proceedings to which subsection (2) applies on the day on which this Act is passed.

(2) This subsection applies where a witness is eligible for assistance by virtue of section 17(4) of the Youth Justice and Criminal Evidence Act 1999 (complainants in respect of a sexual offence or modern slavery offence who are witnesses in proceedings relating to that offence, or that offence and any other offences).

(3) This section has effect notwithstanding section 68(3) of the Youth Justice and Criminal Evidence Act 1999.”—(Alex Cunningham.)

This new clause would bring section 28 of the Youth Justice and Criminal Evidence Act 1999, which provides for the cross-examination of vulnerable witnesses to be recorded rather than undertaken in court, fully into force for victims of sexual offences and modern slavery offences.

Brought up, and read the First time.

--- Later in debate ---

[Sarah Champion]

I fully support new clause 4. It links very tightly to my new clause 20, which I would like to speak to. New clause 20 would mean that once a witness was determined to be eligible for special measures, they would be informed of all provisions and able to decide which option suited them best, rather than the onus being on the court to decide which ones they were allowed. Special measures are an absolute lifeline for many victims giving evidence in court against their abuser. Navigating the criminal justice system can be incredibly challenging, and the idea of giving evidence as a witness against your own perpetrator is extremely distressing. Cross-examination causes re-traumatisation for victims and special measures are vital for reducing the impact on their mental wellbeing. Special measures include screening the witnesses from the accused, giving evidence by a live link and in private, and video- recorded evidence. Currently, victims of child sexual abuse are eligible for special measures in court when giving evidence as a witness. However, delivery of the provisions remains inconsistent and victims often have trouble accessing the measures to which they are entitled.

The onus is currently on the court to offer the provisions to the victim if it believes it will

“improve the quality of evidence”

by witnesses—so is not about the survivor’s mental wellbeing and abilities. An APPG on adult survivors of childhood sexual abuse survey found that 44% of victims were not offered the opportunity to give evidence remotely or behind a screen.

This new clause would amend the Youth Justice and Criminal Evidence Act to ensure that once a witness was determined as eligible for special measures by the court, they would be informed of all options and could decide which measure or measures suited them best. It is worth saying that some survivors I work with actually want to be in court and face their abuser—but it is up to them to make that choice.

This amendment will provide what is best for the witness’s wellbeing, rather than if the judge thinks it will improve the quality of evidence. There was support for this proposal in the Bill Committee’s evidence sessions. Phil Bowen, Director of the Centre for Justice Innovation, said:

“Yes, I think a presumption would be useful, but I think it also requires attention to implementation and delivery issues. Special measures should already be used in specialist domestic abuse courts across our magistrates court estate and, in many cases, domestic abuse victims are without access to those measures, for want of anyone who asked.”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 18 May 2021; c. 43.]

Adrian Crossley, Head of the Criminal Justice Policy Unit at the Centre for Social Justice, said of special measures:

“I think it makes a massive difference to the view of the complainant and, unfortunately, it would also make a massive difference to the view of some defendants, who may face the reality of the evidence against them earlier. It may encourage pleas that should have happened earlier.”

“Sometimes the implementation of special measures and, certainly, the pragmatics of what happens in court are not there and the stress that that puts witnesses through is absolutely huge.”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 18 May 2021; c. 46.]

As we have seen too vividly with the rape review findings, lack of support for witnesses and victims in court proceedings has a genuine impact on the justice process. More than a quarter of child sexual abuse cases did not proceed through the criminal justice system last year because the victim and survivor did not support further action. One of the main reasons was that the victim worried they would find the legal process too upsetting.

The Minister may say that we should keep the law so that it is the quality of evidence that remains, because that matters the most. I say to the Government that it is obvious that when we prioritise the wellbeing of victims and survivors—the people giving the evidence—the conviction is more likely to be secured because they feel more able to speak. If the victim assumes that they will be re-traumatised in the court proceedings, why on earth would they even try to secure justice? If that is the assumption, more offenders will walk free.

Dame Vera Baird, the Victims’ Commissioner, also agreed with this proposal. In her view, the problem begins

“with the fact that the needs assessment is not done clearly by a single agency.”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 20 May 2021; c. 113.]

It needs to be carried out as part of the witness care unit, rather than across the Crown Prosecution Service and police, as it currently does. Dame Vera Baird also said that the measures that may best suit the victim are not always available. Special measures are not consistently available across the country.

What will the Minister do to ensure that resources and funding are sufficient to support victims giving evidence? Some witnesses who gave evidence have claimed that special measures should remain available at the discretion of the judge. The Minister may use that argument in the Government’s response to my new clause. However, we know that the current system is letting victims down, and something needs to be done so that it is legally required that they have these options available to them. The majority of court proceedings have taken place via a live link since the pandemic began. What reason is there to refuse the same provision to vulnerable witnesses? Let us be frank: the court is not always functioning with the victim’s best interests at the centre of its decisions. This change would grant vulnerable witnesses much more autonomy over their experience in court, rather than the courts relying on who and how they are able to give evidence—the same courts that have let so many down.

If it were better for special measures to be left to the flexibility of the court rules, we would not have a situation where victims wait years to give evidence, and often then face their abuser in court. Additionally, under this new clause, the court would still be included in the decisions. It would still have to ensure that the measures or measures provided

“do not inhibit the evidence of the witnesses being effectively tested by a party to the proceedings.”

As the Victims’ Commissioner said, it should be the default position that victims, if they choose, can pre-record their video evidence weeks, months or years before the trial takes place. Not only would that be less traumatic for them, but it means the recollections are more current and therefore more reliable.

Cross-examination can also take place on video under section 28 of the Youth Justice and Criminal Evidence Act. This is particularly useful to reduce the huge backlog that the courts currently face, and these measures already exist. We just need to make sure that victims can access them as they should. The Government need to ensure that implementation is effective, and that the courts are fully resourced for it. More funding must be given to courts to provide places for vulnerable witnesses to give evidence securely, and ISVAs must also be available and dramatically expanded, so I am glad that the Minister has said that as part of the review she will actively look to employ more ISVAs.

I hope the Government listen to this argument and address the issue urgently, so that no more victims have to suffer the traumatising process of giving evidence without access to special measures.

[Chris Philp]

I am grateful to the shadow Minister, the hon. Member for Stockton North, and the hon. Member for Rotherham for raising this important issue. Clearly, all hon. Members from across the House would want victims of these terrible crimes to be supported at what are often traumatic court hearings, and the Government have certainly been working hard on it.

Reference was made to the rape review published last week. As the hon. Member for Rotherham suggested, it contains a range of measures designed to help support victims of these terrible crimes, not least a provision for more ISVAs, as she said in her remarks. It also asks the police to take a better, more proactive, faster, more comprehensive approach to the investigation of rape. No victim is to be left without their phone for 24 hours; digital material will be requested only where strictly necessary and proportionate to the line of inquiry; and there will be better joint working between the police and the CPS and so on. So numerous measures were announced last week, all designed to help improve the situation in the area that we are discussing. In all frankness, it certainly does need to be improved.

Specifically, the clauses mention pre-recorded evidence permitted under section 28, as we have heard. It is worth saying that for vulnerable witnesses we have already fully rolled out the availability of section 28 pre-recorded evidence; that was completed in November last year. Vulnerable witnesses include all child witnesses, and also witnesses whose quality of evidence is likely to be affected because of a mental health disorder or some form of physical disability. The measure has already been implemented in every single Crown court across the country.

On intimidated witnesses, as the shadow Minister said we are already piloting the use of section 28 evidence for intimidated witnesses in three early adopter Crown courts—Leeds, Kingston upon Thames and Liverpool. That means that victims of those crimes have access to this measure and are able to pre-record their evidence, cross-examination and possibly re-examination via video early in the process, outside of the courtroom environment. That, for reasons we have discussed, is often of significant benefit to the victim.

--- Later in debate ---

[Sarah Champion]

I am very heartened by what the Minister is saying. One problem that keeps getting raised with me is that if victims choose to go down the live link route there must be authorised sites, but there are so few in the country, and they have backlogs and so on. There is a resourcing issue. However, it is my understanding that a lot more live evidence has been given by video link during the pandemic. Surely we have had a year of piloting this, as well as the specific pilots that the Minister is doing, so is he now looking at rolling back the opportunity to give evidence via live link, in order to wait for the pilot?

[Chris Philp]

Giving evidence by live link in proceedings is obviously different from section 28, which applies to pre-recorded evidence and cross-examination. In answer to the question about live links, no, there is no intention to try to influence the judiciary to use live video links less than they have been doing so. Generally speaking, it has worked very successfully. Each week there are 20,000 court sessions across all jurisdictions—criminal, civil, family and tribunals—using video technology, and there is no desire on the part of the Government to see that reduced, should the judge and other participants want to continue with it. That option is available. All Crown court rooms have the cloud video platform installed in them, which will remain the case.

A new system is coming in that will improve things further, but there will be no removal of remote capability from Crown court rooms. They will have the ability to take live evidence by video link. Every cloud has a silver lining, and one of the silver linings has been the fact that every Crown court room now has that capability.

[Sarah Champion]

My new clause shifts the choice to the victim rather than the judge. What the Minister is saying is great, but will he support my new clause, so that the victim is able to choose whether to give evidence by live link?

[Chris Philp]

Having spoken to new clause 4, let me turn now to new clause 20. As the hon. Lady says, it moves the discretion away from a judge and makes it the witness’s choice whether the section 28 recording is conducted. We want to encourage as many eligible people as possible to make use of the special measures that are available, and we have taken a number of steps to ensure that objective. For example, the revised victims code, which came into force just a few weeks ago, on 1 April, focuses on victims’ rights and sets out the level of service that victims can expect to receive from criminal justice agencies. The code also enshrines victims’ rights to have their needs assessed by the police or a witness care unit in order to determine whether they are eligible to give evidence using special measures and would benefit from doing so, to help relieve some of the stress involved in giving evidence. We want to ensure that every single eligible witness is identified, and that the matter is actively considered.

[Maria Eagle]

Does the Minister accept that many of these offences leave the victims feeling powerless? Powerlessness, and having things done to them, is part of the horror that arises from such offences. To give victims agency—to allow them to decide for themselves in those proceedings what would work for them—would be a powerful fillip to their psychological wellbeing, so that the court system is not then doing to them, after they have had the perpetrator doing things to them, and all the while they are feeling powerless. The Minister could do a lot of good by accepting the provision.

--- Later in debate ---

[Chris Philp]

Clearly the victims code, published a few weeks ago, is designed to help victims in many of the ways that the hon. Lady described. I will come on to the specific question of who makes the decision in a moment. In addition to the victims code, however, we are doing more work with important agencies such as the police and the CPS, drafting guidance to share with victim care units and making sure that the understanding of the special measures, such as section 28, is as high as it possibly can be. We are also looking to maximise the use of section 24 and to improve the use of remote link sites—the point that the hon. Member for Rotherham made a moment ago—again to help victims.

On the question of empowerment, which the hon. Member for Garston and Halewood just asked about, there is clearly a balance to strike. Obviously we want to ensure that victims are protected and looked after, and that we minimise the trauma that may follow from reliving the experience. We should also be aware, however, that these are court proceedings, designed to determine guilt or innocence. The consequence of a conviction in such cases is, most likely, a long time in prison—rightly so. We therefore need to ensure that the interests of justice are considered, as well as the interests of the victim, which are also extremely important; they are both important.

Ultimately, the judge decides whether a live link may be used or the other special measures may be activated for someone who is eligible. The reason for that is that it is for a judge to make a determination in an individual case on how that case is managed and conducted, having regard to all the particular facts in the case—the circumstances, the victim and the nature of the victim, the nature of the questioning or cross-examination that might need to take place.

The concern of the Government is that if we simply legislate to remove that judicial discretion, saying that the judge cannot decide and what happens is automatic, it means that the judge will in some sense lose control of how the proceedings are conducted. There may be circumstances in which that undermines the delivery of justice.

We hope that judges listen to our proceedings—I am sure they do—and hear the very strong emphasis that we in this House give to victims. The judges are aware of the victims code and the strengthened rights that it gives victims, and they will keep that at the front of their minds when they make such decisions. I hope that they will make them—they normally make them and I hope will continue to do so—in a way that is sympathetic and sensitive. To wholly extinguish judicial discretion, however, would go a long way.

[Sarah Champion]

I appreciate the Minister’s giving way. I am not entirely convinced that his civil servants have read my amendment. After proposed new paragraph (b) in subsection (2), the new clause states:

“so far as possible ensure that the measure or measures provided for do not inhibit the evidence of the witness being effectively tested by a party to the proceedings.”

It explicitly gives the ultimate call to the judge. We would be giving the victim the right to have a choice, but if the judge believes that it in any way discredits the evidence that they are able to give, the judge has the right not to allow it.

--- Later in debate ---

[Chris Philp]

The drafting is:

“Provided that a direction under paragraph (b) shall so far as possible ensure that the…measures provided for do not inhibit the evidence”.

As far as I read it, it does not give the judge the power not to make the order; it simply states that they must make the order in such a way as not to inhibit the evidence being given

“so far as possible”.

My understanding of the words on the page is not that the judge has an ultimate veto; they must simply exercise a direction in that way.

Furthermore,

“so far as possible”

is not a high test when it comes to justice being done and ensuring that evidence is given fairly. When we are potentially convicting someone and sending them to prison for a long time, ensuring that justice is done

“so far as possible”,

intuitively, does not feel like the standard is quite high enough.

[Sarah Champion]

I am happy to work with the Minister to get the wording exactly right, so that it does exactly what I think we both want.

[Chris Philp]

The Government’s position, in conclusion, is that it is very hard to sit in Parliament and legislate definitively and bindingly—

[Sarah Champion]

We do it every day.

[Chris Philp]

Let me finish the sentence—for all the circumstances that may arise in an individual case. Therefore, although we have guidelines, procedures and so on, ultimately, the management of any particular case, including things such as the use of live links and proceedings in the courtroom, are a matter for the very experienced judge who is looking at the case, the defendant and the witnesses in front of him or her, the judge.

That is why, ultimately, judicial discretion is required. However, we agree with the direction of travel. I have already mentioned some of the things that we are doing to push things further. I am certain that judges looking at our proceedings will respond accordingly and will take a positive, constructive and accommodating view where the issues arise. In fact, they already have a duty under section 19 of the Youth Justice and Criminal Evidence Act 1999 to take into account the views of the witnesses in making their decisions. We feel that that strikes the right balance.

[Alex Cunningham]

I do not know whether the Minister accepted the kind offer of my hon. Friend the Member for Rotherham to assist him in developing new clause 20 to make it fit for purpose. He has indicated with a nod of the head that he is pleased to work with her—is that the case?

[Chris Philp]

Always happy to work together on any issue.

[Alex Cunningham]

I am grateful for that clarification.

I am also heartened by the Minister’s response to new clause 4. I will not take anything away from the Government for the tremendous progress that they have made in this area. However, there have been many pilots and I believe that those have already proved that the system is working. I suspect that if it were not working, he would be looking to do something else, rather than extending the pilot. I hope that we can make some more progress sooner rather than later.

The Minister talked about the various recommendations in the rape review. I do not think that we need to wait for the Government to roll out their actions from the rape review. We could take some action now. I see the new clause as another opportunity to take another small step, but it is a significant step, to protect victims and even to improve the quality of evidence that is given in court. Who knows, that, too, might improve some of those abysmal conviction rates that we suffer as a country—suffered by victims who do not receive justice.

--- Later in debate ---

[Sarah Champion]

I completely agree with the hon. Member. Yes, of course, we need robust data to be able to do that. We are in a chicken-and-egg situation because, as the hon. Member highlights, different police forces record different things, so it is hard to grasp the problem. The thing that I am most mindful of is that the opportunity to make changes to the legislation are slight in Parliament, but the Minister has an opportunity now, so I urge him to grasp it.

Does the Minister agree that the punishment should outweigh the potential rewards for stealing pets? At the moment, people receive tens of thousands of pounds for stealing dogs, but they are not given a sentence if they are convicted. I completely understand the work of the taskforce, but we need a positive response, which campaigners and pet owners have called for. There have been some really disturbing cases, with increasing violence used in dog thefts. That is another reason why I want the Government to send a strong message that that is not acceptable and is punishable.

A dog owner was knocked to the ground and punched in a  terrifying attack by two men trying to steal her pet. Allie Knight, 22, was attacked near Mutley Plain, Plymouth, as she walked her pug, Paddy. Mike Jasper was walking his dog Ted—this was awful—a sprocker spaniel, in south London in December after visiting his allotment when he was brutally attacked by two men wearing face masks and Ted was taken. “BBC Breakfast” raised this case, and it highlighted the depth of the loss that someone feels when their pet is taken. A 50-year-old woman was attacked and had her dog stolen while she was out walking in Moira Road in Woodville, Derbyshire. One man pushed her to the floor, and grabbed her two-year-old dachshund called Minnie, while the other held his fist to her face.

Police forces need sufficient resources and training to be able to deal with pet theft in a sensitive manner and highlight resources where owners can turn for support. Blue Cross strongly supported the recent decision of Nottinghamshire police to appoint Chief Inspector Amy Styles-Jones as the first specialist dog-theft lead in the country. Having a dedicated dog-theft specialist in each police force would make a huge difference, and would address the point made by the hon. Member for Stroud about the disparities across the country.

[Chris Philp]

Once again, I am grateful to the shadow Minister and his colleagues for raising an extremely important issue: criminals seeking to profit from the theft of a pet. Sadly, it is a growing trend. Dog owners do not feel safe or comfortable very often, and it can be heartbreaking when a much-loved family pet is taken. Recognising that, the Lord Chancellor, the Home Secretary and the Secretary of State for Environment, Food and Rural Affairs have recently created a new taskforce to investigate the problem end to end and find solutions—not just in relation to the criminal offence, which we will come on to in a moment but in relation to prevention, reporting, enforcement and prosecution of the offences. It will make clear recommendations on how the problem can be tackled. We have seen in other contexts—for example, there was a problem a few years ago with scrap-metal thefts from church roofs—how an end-to-end approach can have an effect. We should not look simply at one element of the problem but at the whole thing end to end, and that is what the task force is urgently doing, as well as taking evidence from experts. The Minister for Crime and Policing is also involved, to make sure that police investigation is what it should be.

As we have heard, the theft of a pet is currently a criminal offence under the Theft Act 1968, so the question arises of why we need a new offence. The first thing I would say is that the maximum sentence for the new offence proposed by the new clause is only two years, whereas the maximum sentence under the Theft Act is seven years. The new clause, if adopted, would reduce the maximum penalty available for stealing a pet from seven years to two years, which strikes me as incongruous, given the purported objectives of the new clause.

The shadow Minister made some points about whether the emotional value of the pet was recognised and accounted for. I draw his attention, and the Committee’s attention, to the Sentencing Council guidelines on theft, which are used by judges when passing sentence for theft up to the seven-year maximum. Under the guidance, which judges are bound to use, harm includes the emotional distress caused by the theft. The guidance also talks about the value to the person who suffered the loss, regardless of monetary worth, so the emotional distress and the non-monetary value are baked in already, in black and white, in those Sentencing Council guidelines. Indeed, the table specifying the level of harm sets out that emotional damage and harm to the victim cause an escalation in the sentence, over and above what would be the case based simply on monetary value.

--- Later in debate ---

[Siobhan Baillie]

Characteristically, the Minister is absolutely correct in everything he is saying, but we cannot get away from the fact that even though legislation provides for sentences of up to seven years, such sentences are not being passed. It is important to recognise that. One of the reasons that I would not back the proposal is that the Minister is right about the two years. We already have a greater sentencing option in the legislation, but that is not being taken, which is why the taskforce is key to looking at the range of options. That includes the judiciary and the Sentencing Council.

[Chris Philp]

My hon. Friend makes a good point, and those topics are precisely the ones the taskforce is addressing to make sure the appropriate statutory powers exist. The maximum sentence of seven years is there. The ability to take account of emotional distress and non-monetary value is there in black and white, in the Sentencing Council guidelines. I talked through a couple of examples in which instances of high harm and high culpability can lead to substantial periods in custody. Even if the level of harm was 3, there would still be level A culpability and the possibility of between six months and several years in custody. The powers are there in statute. The question is more practical, as my hon. Friend says, and that is exactly what the taskforce will address.

[Alex Cunningham]

The Minister is outlining how people who steal pets could get up to seven years in jail, but there is no evidence at all, anywhere in the country, to suggest that those cases go beyond magistrates court. The sentence is normally a fine; there is no evidence of custodial sentences. I do not know what the Minister proposes to do to improve guidance to the courts on how they deal with that, but perhaps it is something he needs to consider.

[Chris Philp]

That is exactly the kind of question the taskforce will be considering. Under the 1968 Act, theft is a triable either-way offence, which means it can be tried in the Crown court or the magistrates court. One matter the taskforce might consider is where the more serious of those offences are prosecuted. The option of the CPS seeking to have more of the cases tried in the Crown rather than the magistrates court could be explored, and that is a topic the taskforce most certainly may consider.

It is also worth mentioning that, in addition to the work of the taskforce and the existing powers relating to a maximum sentence of seven years, there is a lot more the Government are doing. For example, in the area of animal welfare, we are introducing legislation to recognise animals as sentient beings and putting animal welfare at the heart of Government policy decision making. We have also supported calls for increasing the penalty for animal cruelty from six months to five years under the Animal Welfare (Sentencing) Act 2021, which received Royal Assent in April.

[Maria Eagle]

The Minister is making an interesting point about classifying animals in law as sentient, which is overdue. Does he foresee such a change leading to changes in this legislation? Theft of a sentient being appears to be a somewhat different offence from theft of what is currently seen as an object with monetary value.

[Chris Philp]

On monetary or emotional value, the Sentencing Council guidelines recognise emotional value and non-monetary worth. The hon. Lady asks about the interaction between the 2021 Act and sentience, on which we are looking to legislate. That is the kind of topic that the taskforce will have in mind. It is an interesting point, and I will ensure that it features in the taskforce’s deliberations.

Given the work that the taskforce is doing across a far wider area than the criminal offence, and given that the criminal offence already has a maximum of seven years and that emotional value is recognised, I feel that the taskforce is doing the necessary work to step up action in this area. We recognise that there is a problem. More needs to be done, and the taskforce is doing it.

[Alex Cunningham]

Pet owners across the country will be delighted that we have had the debate. We listened to what Members have said and listened the Minister’s response, and we look forward to the taskforce reporting. I do not know when the report is due, but pet owners across the country still want the Government to take action. We do not want any more dilly-dallying; we need the Government to act. We hope that they will press the taskforce to report quickly and to make recommendations that will deliver what the public want: more severe sentences for people who would steal their pets. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 9

Rental of high performance vehicles

“(1) It is an offence to offer for rental a motor car of more than 300 brake horsepower, unless the motor car is fitted with a black box.

(2) For the purposes of this section, a black box is a telematic device which records information about the way a motor car is driven.

(3) The Secretary of State must by regulations determine the information which a black box must record for the purposes of this section.

(4) Regulations under subsection (3) must provide, at a minimum, for the following information relating to the motor car to which it is fitted to be collected throughout the period of rental—

(a) its location;

(b) its speed; and

(c) its rate of acceleration or deceleration.

(5) The information recorded by the black box must be disclosed to a constable on request, and the failure to disclose such information is an offence.

(6) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum or both.

(7) The Secretary of State must by regulations determine how the brake horsepower of a motor car is to be calculated for the purposes of this section.

(8) For the purposes of this section, “motor car” has the meaning given by section 185 of the Road Traffic Act 1988.” —(Sarah Jones.)

Brought up, and read the First time.

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

Chris Philp Excerpts

Committee stage
Tuesday 22nd June 2021 Public Bill Committees

[Alex Cunningham (Stockton North) (Lab)]

It is a pleasure to serve under your chairmanship, Sir Charles—probably for the last time in this Committee, as I believe you may be going fishing on Thursday. That might be just a rumour.

New clause 42 is yet another attempt by the Opposition to improve the provisions of special measures for victims of sexual offences. I hope the Government are more open-minded to this proposal. The new clause would make the use of professional advocates mandatory when complainants of sexual offences undergo video-recorded interviews. I thank the Society of Labour Lawyers for its extremely valuable input in the formation of this new clause.

A number of special measures are available to vulnerable and intimidated witnesses giving evidence at trial, under the Youth Justice and Criminal Evidence Act 1999. They include the use of screens, the use of a live TV link, giving evidence in private, the removal of wigs and gowns and the use of video-recorded cross examination where a video-recorded interview is admitted as evidence in chief—under section 28, which we discussed earlier.

The new clause deals with the special measure provided for under section 27—the use of video-recorded interviews as evidence in chief. Where the witness concerned is the complainant of a sexual offence, a video-recorded interview is presumed to be admissible in a Crown Court trial as evidence in chief. The Opposition seek to amend section 27 of the Act so that, where a victim of a sexual offence undergoes a video-recorded interview that is intended to stand as their evidence in chief at trial, the interview is conducted by a professional advocate as opposed to a police officer. We believe that is a relatively small but extremely effective proposal that could strengthen the evidence collected under section 27, and as a result strengthen a number of sexual offence cases from the outset.

Currently, video-recorded interviews are conducted by police officers rather than professional advocates. That is a rather significant extension of the role of the police in investigating crime, which includes the production of witness statements and interviewing of suspects, because a section 27 video-recorded interview is intended to be played to the jury and to stand in place of the live evidence on oath that would normally be elicited from the witness by the barrister for the prosecution.

Although it is true that police officers are trained to plan for and ask appropriate questions when conducting a video-recorded interview, it cannot be said that they have the same level of training or experience in witness handling as professional advocates such as barristers. An experienced practitioner explained to me that, in their experience, the interviews conducted by police can sometimes be repetitive, confusing and unclear. As a result, they may risk undermining the prosecution’s case.

I stress that I am not criticising the police, who we know are committed to a full and thorough investigation of crimes. Rather, we believe that this is not covered by the police’s usual remit of expertise, so it stands out as an anomaly in the range of police duties. The police should not be asked to carry out such duties, which fall outside the ordinary range of criminal investigation—especially in cases involving vulnerable or intimidated witnesses, which is what section 27 makes provision for.

We are also concerned that the use of police officers to conduct examination under section 27 may risk creating an imbalance in the equality of arms between the prosecution and defence. That is because the cross-examination of the same victims, whether conducted live during a trial or pre-recorded under section 28, will be conducted by a professional advocate, namely the defendant’s barrister. The provisions of section 27 are intended to help a witness give their best evidence, but under the current system they may be prevented from doing so.

As things stand, with police officers undertaking interviews under section 27, the key witness in a sexual offence case—they will often be the only one in such cases—is denied the benefit of having their evidence for the prosecution elicited by a professional advocate. New clause 42 would redress that imbalance so that victims who receive the special measure of a section 27 video-recorded interview are not denied the chance to have their evidence elicited by a professional advocate.

The Government should adopt this eminently sensible proposal as soon as possible as one of their planned measures to improve the criminal justice system’s response to rape and sexual offence cases. It would improve both the strength of the victim’s evidence, and their experience of being questioned. I look forward to hearing the Minister’s thoughts; I could not see anything on section 27 in the end-to-end rape review. Has his Department looked at the issue? Could it do some more work on it?

Before I turn to new clause 68, I pay tribute to the Mother of the House, my right hon. and learned Friend the Member for Camberwell and Peckham (Ms Harman), for the time and energy she has devoted to this Bill. She has been a fierce and tireless advocate for improving the lives of women and girls, and her reputation as one of the most powerful voices in the House is well deserved. My hon. Friend the Member for Rotherham has made powerful points while speaking on amendments relating to section 41 of the Youth Justice and Criminal Evidence Act 1999. As she has already spoken at length about what section 41 does, or at least is intended to do, I will spare the Committee’s time by not repeating what has been said.

I move on to new clause 68. The Opposition are deeply concerned by the issues raised by my right hon. and learned Friend the Member for Camberwell and Peckham. If section 41 is not functioning as was intended it is only right that the law be reviewed and, if necessary, amended. The last thing we want is for alleged victims of rape to face the ordeal of their sexual history being discussed in court—unless it can be shown to be absolutely necessary and only when strict criteria are met.

The Opposition’s whole approach to this Bill has been to try to protect women and girls from violence and abuse and to ensure that all victims of violence are supported and protected through the criminal justice system. On section 41, we have sought to achieve this through new clause 68. The clause would compel the Government to ask the Law Commission to review section 41 of the Youth Justice and Criminal Evidence Act 1999, with the specific purpose of identifying whether it provides the safeguards intended when it was enacted—and if not, to advise the Government on avenues of reform.

As I am sure Committee members will agree, the question of what evidence should be admitted during trial is contentious and difficult; any reforms must carefully balance protecting complainants with respect for fair trial rights. Allowing the Law Commission to conduct a thorough review of section 41 would be the best course of action to determine the way forward.

Our thinking is twofold. First, we can have full confidence that the Law Commission will be able to evaluate this type of issue. It includes some of the most pre-eminent legal minds in the UK, so there is no doubt that it would review section 41 with the utmost care and detail. Secondly, if the Law Commission were allowed to undertake a root-and-branch approach to section 41, it might make recommendations for reform that went beyond those covered by the new clauses tabled to the Bill. For example, even the most experienced of legal practitioners sometimes struggle with the complexity of section 41, leading to avoidable errors made during trial. We hope that new clause 68 would allow the Law Commission to recommend changes that might be beneficial in this area, as well as others.

It seems that the Opposition are not alone in believing that pursing a Law Commission review is the best way to approach section 41; over the weekend, I was pleased to hear that the Government also concur with that view. Page 17 of the Government’s end-to-end rape review report sets out that one of the actions that the Government will implement within the first six months will be to ask the Law Commission

“to review the way rape myths are tackled as part of the court process and the way in which evidence about the victim is used.”

Yet that strikes me as somewhat strange. When answering a question from my right hon. and learned Friend the Member for Camberwell and Peckham on this very topic in the Chamber yesterday, the Lord Chancellor seemed somewhat reluctant to confirm that that was the case. Furthermore, paragraph 114 of the Government’s response to the rape review sets out that the Government have already asked the Law Commission to review section 41. I ask the Minister: which is it? Have the Government already asked the Law Commission to review section 41? If not, will he show his unequivocal support for that course of action by voting for new clause 68?

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

I hope that this is not the last time I serve under your chairmanship on this or any other Committee, Sir Charles.

[The Chair]

So do I!

[Chris Philp]

There is a lot to speak to in this group of new clauses, all of which cover the extremely serious question of the evidence given by rape complainants and other victims of sexual violence before the court and the need to make sure that they are properly looked after and that no one is deterred from coming forward with their claim. It would be terrible if people had an allegation and did not feel able to make it because they were concerned about the issues that we have talked about this afternoon.

I will take each new clause in order. New clause 57 talks about the rules around the disclosure of counselling or therapy sessions in some circumstances. It is important to set out how the law currently stands. There are already significant safeguards, and it is worth going through them. First, the police may request advice from prosecutors on whether something might be a reasonable line of inquiry. If they believe that medical notes might be a reasonable line of inquiry, they are allowed to approach the counsellor. They are not allowed to approach the counsellor simply because they believe such notes exist; that is allowed only if they believe the notes would support a reasonable line of inquiry.

If the notes do exist and if there is a reasonable line of inquiry, the police may approach the therapist to ascertain the situation, and the therapist may confirm or not confirm that there is a reasonable line of inquiry to pursue whether the notes do or do not exist. If they do exist, and if there is a reasonable line of inquiry, the therapist or counsellor does not disclose the relevant notes unless the victim gives their consent. The victim can withhold their consent and say, for whatever reason—understandably, in many cases—“I am not comfortable having that disclosed.” Unless there is a court order compelling disclosure, which is a significant process that involves going to the court to get an order, the notes are not disclosed.

If the victim agrees that the notes can be disclosed, that does not mean they will necessarily be produced in evidence or disclosed to the defence. That will happen only if there is material capable of undermining the prosecution or, conversely, capable of assisting the case for the defence. So there are several steps to go through before very sensitive, private and personal information gets disclosed, one of which is the victim’s own consent. That can be overridden only by an order of the court.

[Sarah Champion (Rotherham) (Lab)]

I appreciate how sensitively and proactively the Minister is responding. The problem seems to be the perception as opposed to the reality on the part of the victim and also on the part of the police who, from my constituents’ experience, were routinely saying, “Unless you give us that information, we cannot proceed with the case.” That has a chilling effect, which is why I am pushing for clarity and also a change in the law so that the guidance that should be there now would necessarily flow from that change in the law.

[Chris Philp]

I accept the point that there are instances, such as those that the hon. Lady referred to in her speech and I am sure exist more widely, where victims have had things said to them that are basically not appropriate and that either misrepresent the law as it currently stands or have the effect of deterring someone who would otherwise want to proceed with a case. That is probably one of the things that contributes to the unacceptably low level of rape prosecutions at the moment.

Paragraph 20 of the rape review report explicitly includes working with the police and getting them to take a different approach, frankly, to the one that the hon. Lady described in her speech and intervention. That will avoid the chilling effect. A moment ago, I laid out the law as it stands: it provides significant safeguards, including the victim’s own consent. The issue is not the law, but how the law is being described to victims. That is why this issue is not so much for legislation but for the police and others to communicate more appropriately with victims. I assure the Committee that that is absolutely at the heart of the Government’s agenda for the rape review and other work.

--- Later in debate ---

[Alex Cunningham]

Will the Minister confirm that the particular issues that I raised on new clause 68 are covered by the review? Can he totally clarify that?

[Chris Philp]

Yes. The Law Commission has been commissioned already and the remit, to which it has agreed—it has not been debated—is to examine the law, guidance and practice relating to the use of evidence in prosecutions of serious sexual offences and to consider the need for reform in order to increase the understanding of consent and sexual harm, and improve the treatment of victims. It covers all the areas that we have discussed.

Section 41 relates to the disclosure of a victim’s personal sexual history—obviously a very private, personal matter. We are all concerned that that provision may in some cases discourage, or deter, people from making complaints. Under section 41 of the Youth Justice and Criminal Evidence Act 1999, there is a general prohibition on the admission of evidence or questions in cross-examination relating to the sexual history of the complainant apart from four very specific exceptions listed in subsections (3) and (5). Those exceptions are narrow and limited, and the judge’s consent—permission —is required in advance; the defence cannot just bring out that history in court.

Besides having one of those conditions met, further criteria must be met: first, the evidence cannot be designed simply to impugn the credibility of the complainant; secondly, it must relate to specific and relevant instances of behaviour; and thirdly, the refusal of permission might render the verdict of the jury unsafe. That second set of criteria are applied after the court has examined whether one of the four very specific circumstances are met. That is why in 92% of cases no such evidence is adduced—a good thing, frankly. That practice will be considered by the Law Commission, however, as per the request in new clause 68.

The review has been commissioned and will examine the matters that we all agree are important and sensitive and where a delicate balance has to be struck. Rather than legislating in haste now, albeit absolutely for the right intentions, I think we should let the Law Commission’s work unfold and proceed. That will not happen in time for the Bill because we will be on Report and Third Reading in just a few weeks’ time. However, there are other Bills—I will not be specific, but if Members look at the Queen’s Speech they can probably work out which ones—in which measures such as this might be made. I suggest to the Committee that that is the best way to proceed.

[The Chair]

I call Sarah Champion if she would like to respond before I call the shadow Minister.

--- Later in debate ---

In that light, I am sure that the Government can understand why the Opposition were disappointed that they did not use the opportunity of the Bill to take some action to reduce the prison population for those on short sentences. I sincerely hope that the Government will support the new clause to provide a kickstart to the justice system’s work to reform the use of short sentences. I am interested to hear the Minister’s response.

[Chris Philp]

Broadly speaking, the Government are keen to see alternatives to short custodial sentences. That is why we have been forward in promoting alternatives, such as community sentence treatment requirements to ensure that people get mental health, drug or alcohol addiction treatment as an alternative to short custodial sentences. As the Lord Chancellor has said, however—the shadow Minister also quoted him—in some cases, as a last resort, short sentences are required where the offender is not complying with community alternatives. I think we are agreed that short sentences should be available as an option.

I hope that the shadow Minister is reassured to know that the proportion of our prison population serving a short sentence of less than one year, say, is small. I do not have the precise figure at my fingertips, but I am pretty sure that less than 5% of our total prison population is serving a sentence of less than a year. Already, therefore, the principle that community alternatives are better than a short sentence is being applied in practice.

The new clause in some areas simply repeats the existing law, but in other areas I disagree with its principles. In fact, four principles are laid out in the new clause, the first and second of which—that custody should not be imposed where a community sentence would suffice, and that the community sentencing range should not escalate on each occasion—are already included in the Sentencing Council’s “Imposition of community and custodial sentences” guidelines, which set out the approach that courts should take when deciding whether to impose a community or custodial sentence. The law is clear that custody should only be imposed where an offence or combination of offences is so serious that only a custodial sentence can be justified. Therefore, the first two of the four principles in the new clause are already enshrined in law.

The third principle of the new clause we disagree with on principle. It states that a relevant previous convictions should not push an offence over the custody threshold, where the current offence would not justify custody on its own. In effect, that element of the new clause says, no matter how many previous offences someone might have committed, “Don’t look at that when deciding how long to sentence someone for.” I disagree with that. When someone is before the court having committed a large number of previous offences, that is rightly treated as an aggravating factor, which makes custody and longer custody more likely. It is right that repeat offenders are sentenced more seriously than people who have, for example, committed a first offence. So that element of the new clause I disagree with on its own terms.

The final of the four principles in the new clause refers to not giving custody to an offender where they are a primary carer, except for reasons of public safety. A legal principle is already established in the case of Petherick that where an offender is on the cusp of custody, imprisonment should not be imposed where there would be an impact on dependents, which would make a custodial sentence disproportionate. The principle about primary carers is also reflected in the imposition guideline, and further to that the sentencing guidelines already say that where someone is a

“sole or primary carer for dependent relatives”

that is taken to be a mitigating factor.

The law as it stands gives some protection to primary carers. It does not go quite as far as the new clause, which I think goes too far; I do not think that someone being a primary carer should literally be a get out of jail free card. That person should be accountable and answerable for their crimes, if they have committed them, but their role as a care giver should be taken as a mitigating factor. That consideration is in law already, so for all those reasons, I do not support the new clause.

[Alex Cunningham]

I welcome the clarification around carers and sentencing, but it is still a fact that carers often find themselves in prison for short sentences when that could have been avoided.

I appreciate that the Government are making a commitment to look at short sentences and how they are set in the future. I hope that that work is done quite quickly, because I think it could drive tremendous change not just for defendants, or offenders, but for their families, and drive the rehabilitation to which my hon. Friend the Member for Rotherham referred earlier.

I do not intend to press the new clause. The Minister spoke about previous offences always being taken into consideration. I think that adds to the roundabout of people entering prison, leaving prison, entering prison, leaving prison, when the Government should ensure that such people have proper rehabilitative support rather than just their sentences being extended each time they appear in court for a similar offence. We need a much greater emphasis on rehabilitation in this country, and I hope that the Government recognise that. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 18

Release of prisoners on Fridays or the day before Bank Holiday periods

“Section 23 of the Criminal Justice Act 1961 is amended by the insertion of the following subsection after subsection (3)—

‘(3A) Where a prisoner is to be discharged on a Friday or the day before a bank holiday, at the discretion of the governor of the prison they may be discharged on a day within the previous five working days that is earlier than the day on which the prisoner would otherwise fall to be discharged.’”—(Alex Cunningham.)

Brought up, and read the First time.

--- Later in debate ---

I know that the Minister recognises the importance of making the transition back into the community as smooth as possible, and the positive impact that that has on the offender’s rehabilitation in the community, so I would have thought that the Government would be keen to support this proposal. I am interested to hear whether it is something his Department has considered implementing.

[Chris Philp]

We do recognise that there are challenges in making sure that offenders leaving prison are given access to the services they need, so that they can get their lives back on track. However, Friday is a working day, and we would prefer to focus our efforts on making sure that those services are available on Friday, rather than on excluding Friday as a release day and therefore concentrating all the releases on just four days—Monday, Tuesday, Wednesday and Thursday—which, by definition, would mean that release numbers on those days were 25% higher than would otherwise be the case.

[Sarah Champion]

I hear what the Minister says, but the new clause would mean that we could address any issues on a Friday and before the weekend, when no staff are available.

[Chris Philp]

In terms of ensuring that people have access to the necessary services—we recognise that that needs to be done—significantly increased investment is being made to address the concerns that the hon. Lady has just raised. For example, in January this year—just a few months ago—the Government announced a £50 million investment to reduce crime and tackle the drivers of reoffending. That included work to help develop the Department’s approved premises—those are obviously important when somebody is coming out of prison—to provide temporary accommodation to prison leavers at risk of homelessness in five key probation areas. In addition, earlier this year—again, I think it was in January or February—an additional £80 million was announced, which was aimed at expanding substance misuse programmes. Those two initiatives, funded this calendar year with £50 million and £80 million, are aimed at tackling prisoner homelessness issues and, separately, drug addiction problems, so there is a real commitment to do more in this area.

I would like to turn to the question of Scotland—the shadow Minister’s native home. As he said, it legislated in 2015 to allow release not five days earlier, but up to two days earlier. A Freedom of Information Act request made just a few months ago uncovered the fact that over the six years that Scotland has had this provision, only 20 people have been released early under it, so it has not had an enormous effect in Scotland.

We would like to focus our efforts on making sure that when people are released on a Friday they are properly looked after, instead of increasing the numbers on Monday to Thursday—

[Allan Dorans (Ayr, Carrick and Cumnock) (SNP)]

rose—

[Chris Philp]

I was about to sit down, but I can see that the member of the Committee from a Scottish seat wants to intervene, and it would be churlish not to accept.

[Allan Dorans]

I thank the Minister for giving way. Does he accept that a significant number of people are imprisoned hundreds of miles from their homes, and being released on a Friday would prevent them from getting the necessary services locally? Does he also accept that the prison governor, having known the prisoner’s history in prison, is best placed to decide whether releasing him a few days early would benefit him and his opportunity to reintegrate into the community, thereby reducing his reoffending?

[Chris Philp]

I do understand the point, but public transport clearly does operate on a Friday and, indeed, on a Saturday and a Sunday for the most part.

It is instructive that, over the last six years, only an average of three people per year have been released early from Scottish prisons, suggesting that prison governors in Scotland, for whatever reason, have not chosen to use this power very widely. For that reason, it is right to concentrate our efforts on investing in rehabilitation services, as we are doing.

[Alex Cunningham]

I am hoping that the Minister is allowing me to intervene at the end of his remarks. He is concerned about increasing the number of people released from Monday to Thursday, but—I am sure he was listening attentively to my speech earlier—a third of all prisoners are currently released on a Friday. Some 33% or 34% of all prisoners are released on a Friday, and some of them could be spread over the previous four days, which would help services in trying to come to their aid.

I am concerned about what the Government might want to do. The question I pose to the Minister is: what are the Government going to do about the fact that such a high proportion of prisoners are released on Friday, to level it out a bit? I do not intend to press for a vote, but it is important that the Government consider what they are going to do about the huge spike on a Friday and, more importantly, about the lack of access to services. The Minister talked about investment in services, but if those services close down at half-past 4 on a Friday afternoon, they are no use to anybody being released from prison in those circumstances.

[Chris Philp]

I thank the shadow Minister for drawing attention to the statistic. As I said earlier, the focus is on investing to make sure that services are available—the £50 million and the £80 million. An additional consideration would be encouraging governors to make the release early in the day to avoid encountering services closing for the weekend.

[Hywel Williams (Arfon) (PC)]

Will the Minister give way?

--- Later in debate ---

[Chris Philp]

I am happy to do so if it is in order.

[The Chair]

It is in order and you do not have to seek my permission to give way.

[The Chair]

You are being generous, Minister.

[Chris Philp]

Yes, although I will probably sit down now. We are obviously looking at a very bespoke set of circumstances concerning female prisoners in Wales released on a Friday. I hear the concern about distances travelled in Wales, and I will undertake to raise that with my colleague the Prisons Minister, my hon. Friend the Member for Cheltenham (Alex Chalk).

[The Chair]

The hon. Member for Cheltenham is a very busy man.

[Chris Philp]

He is getting busier.

[The Chair]

He is indeed being made busier by the Minister here today.

--- Later in debate ---

[Alex Cunningham]

It is impossible for anyone who has not been through it to imagine the trauma of being raped. That is why I will start with the anonymous voice of a rape victim who was attacked on 29 February last year. The attack happened after a night out in Marlborough. The victim awoke to find 20-year-old Killian Hutchinson assaulting her before raping her. She told police officers that she felt unable to move, either out of fear or because she was intoxicated. She told the Swindon Advertiser:

“I felt immense shame, I felt like nobody would believe me, I felt like it would go nowhere and I’d…done all of this for nothing. But know that none of this is true, those who love you will believe you, the shame you may feel is misplaced. And it won’t all be for nothing.”

It is a scandal that her attacker was sentenced to imprisonment of just five years and three months after pleading guilty to rape.

For the benefit of the Committee, I point out that although the maximum sentence for rape is life imprisonment, there is not currently a minimum sentence set out in statute. Instead, the sentencing guidelines set a starting point for rape of five years, which can be reduced to only four years if certain mitigating circumstances exist. The Opposition simply do not believe that four years is a proportionate sentencing option for one of the most horrendous crimes that it is possible to commit.

There are two options available to us. One would be to ask the Sentencing Council to review the current sentencing guidelines as they apply to rape, but that would take time and there is no guarantee that it would recommend any changes. The second is to create a statutory minimum sentence for rape—a provision along the lines of section 51A of the Firearms Act 1968, which compels a court to hand down a minimum sentence unless there are exceptional circumstances relating to the offence, or the offender, that justify not doing so. In other words, this method creates a minimum sentence that can be set by Parliament, but still gives judges the power to depart from that sentence in exceptional circumstances.

New clause 21 uses this method to create a minimum statutory sentence for rape of seven years, which we believe is more proportionate to the devastating consequences of this crime. The new clause would not only ensure that the punishment better represented the crime; it would also bring our sentencing regime closer to that in other common-law jurisdictions around the world.

I thank the House of Commons Library for the extremely helpful briefing that it put together on this point. When I asked what the sentencing ranges for rape were in other common-law countries, its research showed the following. The minimum sentence for rape in India was increased in 2018 and now stands at 10 years. In Australia, the Australian Law Reform Commission said in 2020 that the penalty range for rape was 12 years to life imprisonment. In the state of Victoria, rape carried a standard sentence of 10 years; and in New South Wales, the standard sentence was seven years.

That prompts the question of why is the sentencing minimum for rape comparatively low in this country? Can the Minister honestly say that a four or five-year sentence can ever truly reflect the enormous damage caused by rape? I must be clear about this: we are not talking about the maximum sentence available to courts, nor the average sentence; we are talking about the minimum sentence that a rapist could conceivably receive, as the sentencing regime stands.

I have a suspicion that the Minister will argue that setting minimum statutory sentences undermines the law by removing the discretion afforded to judges by way of the sentencing guidelines. He was previously at pains to talk about average sentences handed down being somewhat higher than the minimum, but it is still the case that many rapists receive much lower sentences. Surely toughening the law around minimum sentences cannot be so disagreeable, as clause 100 of this very Bill ensures that repeat offenders in relation to certain crimes receive a statutory minimum sentence. As the Library briefing sets out:

“Clause 100 and Schedule 11 of the Bill would change the law so that for these offences a court is required to impose a custodial sentence of at least the statutory minimum term unless there are exceptional circumstances that relate to any of the offences or to the offender”.

If members of the Committee have suddenly had a feeling of déjà vu, they are correct in thinking that they have heard that phrase before. That is because new clause 21 would create a statutory minimum sentence for rape of seven years, unless exceptional circumstances relating to the offence or the offender would make it unjust to do so. In other words, new clause 21 is much the same as clause 100 of the Government’s Bill, which sets a minimum sentence for those convicted of repeated drug offences and burglaries.

That raises an important point. If the Minister says, as I suspect he will, that the Government cannot support new clause 21 because he does not agree with statutory minimum sentences, why does he support clause 100? What is it about the crimes under clause 100 that the Government feel deserve minimum sentences that rape does not? Why does it seem that the Government’s thinking is different when it comes to crimes that affect predominantly women and girls? Why is he happy to have minimum sentences for repeat drug offences, which, as I set out earlier in Committee, will greatly increase racial disparity in the justice system, but not for rape?

As an Opposition, we accept that increasing the minimum sentence for rape will not in isolation solve the greater issues at play, but it would ensure that the punishment is proportionate to the crime. Fundamentally, it would send out a clear message that the Government are serious about tackling the epidemic of violence against women and girls in society. The question for the Minister is simple. Does he feel that four to five years in prison can ever be a proportionate sentence for rape? If not, does he support longer sentences for rapists? He has indicated in the past that he does; now is the time for him to ensure that they are imposed.

Like new clause 21, new clause 22 would use the model of the Firearms Act to create a statutory minimum sentence for those who commit the most serious type of stalking offences. When researching the law in relation to stalking, I came across a very useful and persuasive report written by the Under-Secretary of State for Justice, the hon. Member for Cheltenham. The report was part of a campaign by someone who is now the Minister responsible for prisons to recognise the immense harm stalking causes and to increase the maximum sentence that applies to the more serious forms of stalking—stalking involving fear of violence or serious alarm or distress. The report makes a compelling case and it is little wonder that it led to the maximum sentence being doubled from five years to 10. However, it did nothing at all to ensure that the minimum sentence for this horrendous crime reflects the impact on victims’ lives.

As with rape, there is currently no minimum statutory sentence for those who stalk with the intention of invoking fear of violence or serious alarm or distress. Instead, judges follow the sentencing guidelines. As the law currently stands, someone convicted under section 4A of the Protection from Harassment Act 1997 can receive anything from 10 years in prison to a category C fine. Not only do we not agree with that, but it misrepresents the gravity of the offence. We also believe that the current system provides no deterrence to perpetrators of this terrible crime. Moreover, it is deeply troubling how few perpetrators of serious acts of stalking ever receive custodial sentences. One report notes that despite record numbers of convictions for stalking, 58% per cent of stalkers received only community or suspended sentences. How can it be right that more than half of stalkers never spend a day in prison? What sort of message does that send to the victims of this horrendous crime?

The purpose of new clause 22 is to end that undue leniency and ensure those convicted of the most serious form of stalking can expect to receive a custodial sentence as default, rather than as an exception. The question for the Minister is one of policy. Is it right for someone who stalks with the intention of causing fear of violence to receive a simple fine or a suspended sentence?

[Chris Philp]

As the shadow Minister made clear in his opening remarks, these are incredibly serious offences that leave victims traumatised and distressed, and the psychological scars are often borne for many years, if not decades, after the offences are committed. They are among the gravest offences that can be committed, and it is right this House takes them seriously. We have discussed the Government’s commitment to improving prosecutions in this area, and that was laid out by the Lord Chancellor in his statement yesterday following the publication of the rape review on Friday last week. More needs to be done, and the Government commitment in this area is clear.

--- Later in debate ---

[Sarah Champion]

I am listening intently to everything the Minister and his colleague are saying, which is great, but does the Minister understand that we have been promised all this for a long time? Although we are hearing his promises, we are awaiting the outcomes of reviews for which we are not given dates. Women are being murdered and abused.

[Chris Philp]

My colleague, the safeguarding Minister, tells me that the refreshed VAWG strategy will be published this year, in less than six months. I hope that gives some reassurance to the hon. Lady. If she is asking for action, I would point to the extra £25 million VAWG-specific funding, the new offences created in 2012 and the doubling of sentences in 2017. Those are not promises for the future, but actions that have been taken. She should also note that three quarters of those convicted of the offence get immediate custody, and that immediate custody of 16.9 months is more than three times longer than the minimum proposed in the new clause.

We want to make sure that those found guilty of those bad offences, which are terrible in themselves and can lead to escalation, are getting appropriately punished. But we are trying to strike a balance between that and the need to give the judge the ability to consider the individual case on its merits. That might include, for example, the perpetrator having mental health issues, where treatment might be more appropriate than custody. We need to tread carefully in striking that balance.

Given the action that has been taken and that three quarters of the offenders get immediate custody for a term much longer than the minimum proposed in the new clause, we are trying to strike a balance, which is not easy. There are good arguments on both sides of the issue, but we feel that the current sentencing laws make sense in this context. We have made a commitment to keep this under ongoing review and there are other legislative vehicles that could reconsider the issue. I am sure that the VAWG strategy, which my hon. Friend the safeguarding Minister is overseeing, will consider all the issues in the round, when it reports a little later this year.

These are difficult issues and difficult balances to strike, but I hope that I have explained why I believe the Government’s approach strikes that balance.

[Alex Cunningham]

On new clause 22 and stalking, it was interesting to listen to the level of sentencing imposed, and that is quite encouraging. But I think the Government recognise that more still needs to be done, and I hope that they will continue to consider the matter.

I also think that it would be helpful to have more publicity about what happens to stalkers who commit that crime, because women are still not confident about coming forward. If they learn that they will be taken seriously and that the people who are making their lives a misery may receive the sort of sentence the Minister outlined, more women may come forward and use the law. I hope that the Government will consider that suggestion.

I am disappointed that the Government are prepared to vote against increasing the sentence for rapists. I never thought that I would stand in Committee and believe that Conservative Members would think that it was okay to vote against a minimum sentence of seven years for rapists. I have spoken to rape victims—it was some time ago, not recently—and they tell me that the people convicted went to prison for four years, five years, seven years, but they, the victims, got a life sentence. They continued to live that ordeal. Then, of course, when they learned that the person was due to be released, they lived their lives in more fear because they were afraid that something dreadful might happen to them again.

--- Later in debate ---

[Chris Philp]

On a point of order, Sir Charles. In my speech, I said that 74% of people convicted of a stalking offence with serious alarm faced immediate custody. I should have been clear that that was all custody, not just immediate custody.

[The Chair]

Thank you for that point of order, Mr Philp; I am sure it was much appreciated by the Committee.

New Clause 23

Street sexual harassment

“(1) A person must not engage in any conduct in a public place—

(a) which amounts to sexual harassment of another, and

(b) which they know or ought to know amounts to sexual harassment of the other.

(2) For the purposes of this section, the person whose conduct is in question ought to know that it amounts to sexual harassment of another if a reasonable person would think the conduct amounted to sexual harassment of the other.

(3) The conduct referred to in subsection (1) is known as street sexual harassment.

(4) A person (A) engages in conduct which amounts to street sexual harassment, or which they know or ought to know amounts to street sexual harassment, of another (B) if—

(a) A engages in unwanted conduct of a sexual nature, and

(b) the conduct has the purpose or effect of—

(i) violating B’s dignity, or

(ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

(5) In deciding whether conduct has the effect referred to in subsection (4)(b), each of the following must be taken into account—

(a) the perception of B;

(b) the other circumstances of the case; and

(c) whether it is reasonable for the conduct to have that effect.

(6) For the purposes of this section, “conduct” includes speech, non-verbal attitudes such as gestures imitating or suggesting a sexual act, and obscene sound effects.

(7) A person who engages in any conduct in breach of subsection (1) is guilty of an offence.

(8) Where on any occasion an authorised officer finds a person who he has reason to believe has on that occasion committed an offence under section 1 above, he must give that person a notice offering him the opportunity of discharging any liability to conviction for that offence by payment of a fixed penalty, unless subsection (9) applies.

(9) This subsection applies (and subsection (8) does not apply) if a person has previously—

(a) been found guilty of an offence under subsection (1), or

(b) made payment of a fixed penalty issued under subsection (8).

(10) Where a person is given a notice under this section in respect of an offence—

(a) no proceedings shall be instituted for that offence before the expiration of fourteen days following the date of the notice; and

(b) he shall not be convicted of that offence if he pays the fixed penalty before the expiration of that period.

(11) A notice under this section shall give such particulars of the circumstances alleged to constitute the offence as are necessary for giving reasonable information of the offence and shall state—

(a) the period during which, by virtue of subsection (2) above, proceedings will not be taken for the offence;

(b) the amount of the fixed penalty; and

(c) the person to whom and the address at which the fixed penalty may be paid; and, without prejudice to payment by any other method, payment of the fixed penalty may be made by pre-paying and posting to that person at that address a letter containing the amount of the penalty (in cash or otherwise).

(12) Where a letter is sent in accordance with subsection (11)(c) above payment shall be regarded as having been made at the time at which that letter would be delivered in the ordinary course of post.

(13) The form of notices under this section shall be such as the Secretary of State may by order prescribe.

(14) The amount of a fixed penalty payable in pursuance of a notice under this section is £500.

(15) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 3 on the standard scale.”—(Alex Cunningham.)

This new clause creates an offence of engaging in unwanted conduct of a sexual nature in public. Those found to have committed an offence would be given an on the spot fine of £500. Those who commit the offence on further occasions would liable to receive a fine of up to £1000.

Brought up, and read the First time.

Question put, That the clause be read a Second time.

--- Later in debate ---

[Alex Cunningham]

The right hon. Gentleman makes a very valid point. There are some cases where a lone male parent is the principal carer who may find himself in the dock facing a prison sentence. Naturally, the provisions apply to both men and women.

Dr Paradine puts it very compellingly: these are things that are already meant to happen in the court, yet in many cases they still do not. The Government clearly intend these things to happen, so I hope they can support the new clauses backed by the Joint Committee on Human Rights today and tighten provision in this area.

New clause 35 would impose a requirement for the judge to consider the impact of not granting bail on a child when determining in criminal proceedings whether to grant bail to a primary carer of a dependent child. This is an important measure because we know that even short bouts in custody can have very destabilising effects on families. The Government’s own figures show that a significant proportion of women remanded into custody do not go on to receive a custodial sentence. In 2019, 66% of women remanded by the magistrates court and 39% remanded by the Crown court did not go on to receive one. Again, under the current provisions, consideration should be made of child dependants but in practice it is not, and so again we ask the Government to support the amendment backed by the JCHR and tighten practice in this area.

Finally, I turn to the data provisions in new clauses 26 and 36. New clause 26 would place a duty on the Secretary of State to collect and publish data on the number of offenders who receive a custodial sentence and who are parents of children or are pregnant at the time of their sentencing. New clause 36 would impose a requirement on the Secretary of State to collect and publish data on the number of prisoners who are the primary carers of a child and on the number of children who have a primary carer in custody. Both clauses speak to the same issue: there is an absence of data on this topic that needs to be addressed.

As the JCHR stated in its legislative scrutiny report for the Bill:

“The Government still does not know how many mothers of dependent children are in prison. It also does not know how many children are separated from their mother by her imprisonment. Despite this Committee’s repeated recommendations that it should collect this data, the Government’s approach continues to keep a group of children invisible to policy makers, the courts, the Prison Service and other support services.”

The Committee continued:

“A lack of data inhibits the ability of the Government, prisons and local authorities to design and evaluate services for children whose mothers are in prison. It prevents children whose primary carer has been separated from them, through no fault of their own, from accessing the support that will help them during and after their mothers’ sentence, and ultimately shows a blatant disregard for the rights of the child, as well as their parents’ right to family life.”

The absence of data is impacting service provision and ultimately preventing the Government from being able to improve measures to support primary carers and their children who are affected in this way, and means that we cannot measure progress in this area. These simple and straightforward duties on the Government are the next necessary step in improving the criminal justice system’s response to these cases, and I hope that the Government can support them today.

As Women in Prison recognises, this is a timely opportunity for the Government to

“make progress on their ambitions to radically reduce the number of women in prison included in their strategy and National Concordat on women in the criminal justice system, as well as the recommendations of the Farmer Review on women.”

Given that three in five women in prison have children under the age of 18, the proposed changes are needed now, as the Bill ushers in sentencing reforms.

The new clauses have cross-party support and will safeguard the welfare of the thousands of children who experience the profound impact of maternal imprisonment by ensuring that it is at least at the forefront of sentencers’ minds. All we ask is for the Government to ensure that what should happen does happen. Often, it simply does not.

The inclusion of the new clauses in the Bill will ensure that the data on the welfare of children is captured and adequately reported, so that those children can access the services and support that they need and deserve.

[Chris Philp]

I am conscious that we are perhaps not progressing as quickly as we had hoped, so I will try to be concise, while answering the questions properly.

The Government accept that we should avoid imprisoning a primary carer unless it is absolutely necessary, but we should also be clear that when someone commits a serious criminal offence, the fact that they are a primary carer should not confer immunity from imprisonment on them. There is clearly a legitimate criminal justice objective in imprisoning some people in some circumstances. We should not get into a position whereby simply having a dependant renders the offender immune from custody—that is not a reasonable proposition. However, we should ensure that custody is used as a last resort and sparingly. I will answer the questions in that spirit.

New clause 26 concerns data collection. The Government fully support the intention behind it, but we do not believe that it is necessary. We already take steps to obtain details of dependent children or pregnancy both at court, as part of the pre-sentence report, and again on reception into custody. However, it is true that the information is not collected centrally, or in a standard format. The Government intend to enable that information to be collated better and to improve its availability. The underlying data exists; it is simply a question of collation and we intend to respond positively to the various JCHR recommendations on that.

Again, we support the principle behind new clause 32, but do not believe that it is necessary. The sentencing code is already clear that

“the court must obtain and consider a pre-sentence report before forming the opinion unless, in the circumstances of the case, it considers that it is unnecessary to obtain a pre-sentence report.”

Existing legislation already asks the court to obtain that PSR. In addition, further guidance was introduced in 2019 for probation practitioners. It sets out that for those who are primary carers with responsibilities for children, a request to the court for an adjournment to prepare the PSR is considered mandatory. That is to ensure that the impact of a custodial sentence on dependants is considered.

As we set out in the sentencing White Paper last September, we are currently running a pilot in 15 magistrates courts. It includes targeting female offenders, who, among other cohorts, have been identified as having particular needs, for fuller written PSRs. 

I hope that it is clear from the sentencing code, the guidance issued to probation practitioners and the pilot work that the matter is already being addressed through existing measures. That is probably one reason why so few women are in prison.

Again, the Government are sympathetic to the sentiment behind new clauses 33 and 34, but, by law, a court is already required to state its reasons for deciding on a sentence, and courts are required to take into account the impact on dependants at various points in the sentencing process. We have already discussed the Petherick case, which established that, on the cusp of custody, cases where there is a dependant should be treated in a way that takes that into account. That can tip the scales so that a custodial sentence that might otherwise have been considered proportionate becomes disproportionate.

As we have discussed, courts are also required by law to follow relevant sentencing guidelines issued by the independent Sentencing Council, unless the court is satisfied that it would be contrary to the interests of justice to do so. Reflecting the principles in the Petherick case, which we have spoken about, the guideline on the imposition of community and custodial sentences is clear that

“on the cusp of custody, imprisonment should not be imposed where there would be an impact on dependants which would make a custodial sentence disproportionate to achieving the aims of sentencing.”

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

Chris Philp Excerpts

Committee stage
Thursday 17th June 2021 Public Bill Committees

[The Chair]

Good morning. Before we begin, let me remind you of the preliminaries. I remind Members to switch electronic devices to silent; that Mr Speaker does not permit food or drink during the Committee; to observe social distancing and only sit in the appropriate seats; and to wear face coverings in Committee unless you are speaking, obviously, or are exempt. If you could pass any speaking notes to Hansard, they would be very grateful.

The selection list for today’s sitting is available in the room. I remind Members wishing to press a grouped amendment or a new clause to a Division to indicate their intention when speaking to their amendment.

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

On a point of order, Mr McCabe. Colleagues will recall that I made the point on Tuesday that the cliff edge for an extended determinate sentence, referred to by the hon. Member for Stockton North, can occur where an EDS prisoner is recalled and then serves the remainder of their custodial sentence and licence period in prison. I am sure Committee members knew that, but for absolute clarity I thought I would put it on the record.

[The Chair]

Thank you; that is very helpful.

Clause 139

Serious violence reduction orders

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

Chris Philp Excerpts

Committee stage
Thursday 17th June 2021 Public Bill Committees

[Victoria Atkins]

I join the hon. Lady in paying tribute to Saskia Jones and Jack Merritt, whose lives were tragically cut short in a horrific manner in Fishmongers’ Hall. I am really pleased that these clauses meet with the approval of both the Government and the Opposition parties, so that we are able to make some very substantial changes, as recommended by Jonathan Hall, QC. He examined the legislation with great care and attention following the commission from the Home Secretary and the Lord Chancellor.

The hon. Lady asked me a few questions. If I may, I will write to her on the point about the statistics; I do not have the statistics to hand, I am afraid, but I will write to her with them. She asked about the ability under clause 159 for officers to apply for a multiple entry ability warrant. The reason for that ability is that we anticipate that there will be a very small number of cases in which counter-terrorism police officers believe that a warrant permitting multiple entry is required. An application by the police will only be made following cross-agency work, including discussion with probation services on the justification for a warrant and its appropriate scope. Ultimately, of course, it would be for the court to decide, and clause 159 is clear that the court should issue the warrant only if it is satisfied that such authorisation is necessary for purposes connected with protecting members of the public from a risk of terrorism.

To reassure colleagues, Parliament has previously agreed to the creation of premises search powers that permit multiple entries. For example, the search power under section 56A of the Counter-Terrorism Act 2008 provides for that, and it was inserted by the Counter-Terrorism and Border Security Act 2019. I hope that as we felt able to do that in that legislation, we will feel able to do the same in the Bill, given all the safeguards.

The hon. Lady asked about the purpose of a search. The personal search will provide the police with the means of conducting assurance checks. We envisage that in the majority of cases, they will be checks on whether a relevant terrorist offender is in possession of something that could be used to harm or threaten a person—a weapon or a fake suicide belt, for example—but there may be other limited scenarios in which a personal search for something that appears innocuous may be necessary for purposes connected with protecting members of the public from a risk of terrorism. An example would be a personal search to check whether the offender was in possession of a mobile phone in violation of their licence conditions.

This provision gives a better means of monitoring risk, because a contraband phone would be unlikely to meet any definition of something that could be used to threaten or harm, but depending on the offender’s background, it might embolden them to make contact with their previous terrorist network, enable them to access materials useful in preparing an act of terrorism, or provide a route for them to radicalise others. I hope that I have addressed the hon. Lady’s concerns.

Question put and agreed to.

Clause 157 accordingly ordered to stand part of the Bill.

Clauses 158 to 161 ordered to stand part of the Bill.

Schedule 18 agreed to.

Clause 162 ordered to stand part of the Bill.

Clause 163

Rehabilitation of offenders

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

I beg to move amendment 134, in clause 163, page 180, line 23, at end insert—

“(A1) The Rehabilitation of Offenders Act 1974, as it forms part of the law of England and Wales, is amended as follows.”

This amendment is consequential on Amendment 143.

[The Chair]

With this it will be convenient to discuss Government amendments 135 to 143.

[Chris Philp]

It is, as always, a pleasure to serve under your chairmanship, Mr McCabe, and an equal pleasure to follow the Under-Secretary of State for the Home Department, my hon. Friend the Member for Louth and Horncastle.

Amendment 142 relates to the Rehabilitation of Offenders Act 1974, which sets out a rehabilitation period for orders on conviction that impose prohibitions and other penalties. The rehabilitation period is equal to the duration of the period for which the order is specified to have effect. The amendment seeks to put beyond doubt that where the court imposes any provisions in an order, that attracts a rehabilitation period and requires disclosure in a way that is similar to when orders impose prohibitions and penalties. A provision may say, for example, that a person should, or should not, engage in a particular activity. Any provision, of whatever nature, triggers the disclosure requirement until such time as the provision ends. Amendment 142 makes that clear.

Amendment 138 is in a somewhat similar spirit. It relates to orders that set out that they have effect until the occurrence of a specified event. The court may make provision for some orders to have effect indefinitely, or until a further order is made in respect of the subject. Those orders might include disqualifications, restraining orders, sexual harm prevention orders and criminal behaviour orders. The amendment is intended to put beyond doubt that where such provision is made in the order, the rehabilitation period and the accompanying disclosure requirement end only when the order ceases to have effect, so once again, it is clarifying. The rest of the amendments in this group—134 to 137, 139 to 141, and 143—are technical amendments that make corrects to various cross-references.

--- Later in debate ---

[The Chair]

No, I think it would be better to stick to the sequence on the selection list.

[Chris Philp]

Given your direction, Mr McCabe, I will not speak to clause 163 substantively just yet—or, indeed, to amendment 165—but will speak narrowly and specifically to amendment 9.

I understand the spirit of the shadow Minister’s amendment, but I observe that it is not often that the Opposition propose conferring on Government regulation-making powers that they have not asked for. It is usually the other way around, is it not?

The Government take the view that schedule 18 of the sentencing code sets out the list of most serious offences. They are the same offences used to assess dangerousness. Using schedule 18 ensures simplicity and consistency between assessing dangerousness and requiring longer disclosure. We think it is more straightforward and transparent for those people subject to disclosure requirements to know that that is not a moving target; they know the list is fixed and will not change.

The power that the shadow Minister generously proposes conferring on the Government might lead to unpredictable changes for the people affected. For those two reasons—predictability and consistency—we prefer to set things out in statute, as is currently proposed, via schedule 18 of the sentencing code.

I will briefly answer one question that the shadow Minister posed—I might address some other questions later—on research on whether these are the right lengths of time, or whether more can be done in future. Yes, I confirm that we will continue to look at this, and to conduct research as appropriate to ensure that the balance is struck between rehabilitation and protecting the public.

[Alex Cunningham]

The fact that the Government have missed the point about the narrow application of the measure and how very few people will be caught by it is lamentable. I will not press the amendment to a vote at this stage, but we may well revisit the matter in future. It is great to have such provisions, but they affect only a minority of people in the criminal justice system, when they could benefit so many more. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: 137, in clause 163, page 181, line 27, at end insert—

“(3A) In subsection (2) (rehabilitation periods), in the words before paragraph (a), for ‘(3) and’ substitute ‘(2A) to’.”

This amendment and Amendments 138 to 140 make provision about the rehabilitation period that applies to a person who is subject to a relevant order where the last day on which the order is to have effect is not provided for by or under the order.

Amendment 138, in clause 163, page 182, line 8, at end insert—

“(4A) After subsection (2) (and after the table in subsection (2)(b)) insert—

‘(2A) Subsection (2B) applies where provision is made by or under a relevant order for the order to have effect—

(a) until further order,

(b) until the occurrence of a specified event, or

(c) otherwise for an indefinite period.

(2B) The rehabilitation period for the order is the period—

(a) beginning with the date of the conviction in respect of which the order is imposed, and

(b) ending when the order ceases to have effect.’”

See the explanatory statement for Amendment 137.

Amendment 139, in clause 163, page 182, line 9, leave out subsection (5) and insert—

“(5) For subsection (3) (rehabilitation period for community etc order which does not provide for the last day on which the order has effect) substitute—

‘(3) The rehabilitation period for a relevant order which is not otherwise dealt with in the Table or under subsections (2A) and (2B) is the period of 24 months beginning with the date of conviction.’”

See the explanatory statement for Amendment 137.

Amendment 140, in clause 163, page 182, line 11, at end insert—

“(5A) In subsection (4)(b) (rehabilitation period for other sentences), for ‘subsection (3)’ substitute ‘any of subsections (2A) to (3)’.”

See the explanatory statement for Amendment 137.

Amendment 141, in clause 163, page 182, line 29, after “order” insert “—(a)”.

This amendment and Amendment 142 make provision about the rehabilitation period that applies to a person who is subject to an order which imposes requirements or restrictions on the person or is otherwise intended to regulate the person’s behaviour.

Amendment 142, in clause 163, page 182, line 31, at end insert “, and

(b) for paragraph (g) substitute—

‘(g) any order which—

(i) imposes a disqualification, disability, prohibition, penalty, requirement or restriction, or

(ii) is otherwise intended to regulate the behaviour of the person convicted,

and is not otherwise dealt with in the Table,’.”

See the explanatory statement for Amendment 141.

Amendment 143, in clause 163, page 182, line 31, at end insert—

“(8A) In section 6(5) (the rehabilitation period applicable to a conviction), for the words from ‘by virtue of’ to ‘or other penalty’ substitute ‘to an order within paragraph (g) of the definition of “relevant order” in section 5(8) above’.

(8B) In section 7(1)(d) (limitations on rehabilitation under the Act), for ‘or other penalty’ substitute ‘, penalty, requirement, restriction or other regulation of the person’s behaviour’.

(8C) In paragraph 5(b) of Schedule 2 (protection for spent cautions), after ‘prohibition’ insert ‘, requirement’.”—(Chris Philp.)

This amendment makes amendments to the Rehabilitation of Offenders Act 1974 that are consequential on or otherwise related to the amendments to that Act made by Amendment 142.

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I am sure that the Government do not want their widely celebrated efforts to be undermined by that oversight, so I hope that they will join us in supporting the amendment.

[Chris Philp]

As the shadow Minister said, the amendment would change the current rehabilitation period for endorsements that are imposed in respect of motoring convictions from five years to nil.  Unless another disposal is given for the same motoring conviction that attracts a separate rehabilitation period, the amendment would result in some motoring convictions being spent immediately and having no rehabilitation period. 

It is worth saying that the Department for Transport leads on the rehabilitation periods for motoring penalties. It is a complex area with a combination of fines, driving bans and penalty points, as well as community and prison sentences, which are an important part of the system to reduce dangerous and careless behaviour on our roads.  That includes the way in which the provisions interact with the insurance system, as the shadow Minister said.

Clearly, if someone gets speeding points and that has consequences for their insurance premium for some time, it is a disincentive to drive dangerously. There is also a reasonable link between someone who drives carelessly or dangerously and the risk they pose, which leads to higher insurance premiums. There is therefore a certain justice to that link.

The range of penalties and the current penalty points system has been developed to prevent low standards of driving behaviour, which have the potential to cause serious harm to other road users and, in the worst cases, death. That approach has been successful over the past few decades, under Governments of both colours, because road deaths have, mercifully, been decreasing.

Given the complexity of the subject, we do not propose to make the change that the shadow Minister suggests just now, but I can commit to conducting further research and investigation into the matter. The shadow Minister made the point about a longer disclosure period for driving causing other matters to be disclosed for a longer period than would otherwise be the case, with the consequent impact on employability. We will conduct further research into this area to ensure that we get the balance right and continue the positive direction of travel on safer roads, while at the same time ensuring that we facilitate rehabilitation.

[Alex Cunningham]

That is a helpful response from the Minister and I welcome the things that he had to say, particularly in relation to reviewing the issue in future. I do not intend to press the amendment to a vote. I understand that there is considerable cross-party support elsewhere for this approach to ironing out the anomaly, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause, as amended, stand part of the Bill.

[Chris Philp]

The shadow Minister has already touched on the substance of the clause, so I do not want to repeat what he so eloquently laid out for the Committee a little earlier. In substance, the clause amends the Rehabilitation of Offenders Act 1974 to enable an individual’s conviction to be spent earlier than would otherwise be the case. The reason for doing that is to enable people to rehabilitate and get back into work sooner than would otherwise be the case. However, we recognise that for the most serious offences, we want the conviction never to be spent—hence the exclusion defined by offences covered by schedule 18 of the sentencing code, which we discussed a couple of minute ago. For other offences, both for adults and for people under 18, the spending periods are reduced.

The shadow Minister asked earlier how we arrived at those particular times. We have looked at the data on reoffending, engaged widely with stakeholders and various groups in the sector that have an interest in this issue, and we have arrived at the reductions that we have. We think the reductions strike a balance between providing an earlier opportunity for rehabilitation on the one hand, and providing additional public protection and protection for employers on the other.

Of course, no Government or Ministers have a monopoly on wisdom—except, of course, my hon. Friend the Member for Louth and Horncastle—but we think this is a good starting point and a step in the right direction, as the shadow Minister has said already. However, we will continue to research in this area and will keep it under scrutiny, to ensure that the balance struck is the right one. I am pleased that stakeholders generally, and the shadow Minister, welcome this move.

Question put and agreed to.

Clause 163, as amended, accordingly ordered to stand part of the Bill.

Clause 164

British Sign Language interpreters for deaf jurors

[Alex Cunningham]

I beg to move amendment 147, in clause 164, page 183, line 10, after “interpreter” insert

“or language and communication service professional”.

This amendment would expand the provision of the clause to include other language and communication service professionals such as interpreters for Deafblind People, lipspeakers, notetakers, Sign Language interpreters, Sign Language Translators, and Speech to Text Reporters.

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The decision lies with the judge; the amendment will just give them a wider choice. I hope that the Government will support the amendment to provide judges with wider discretion to allow deaf people to engage with jury proceedings, which is surely just realising the full intention of the original clause.

[Chris Philp]

I thank the shadow Minister for his speech. Interestingly, it pulled in two different directions. On the one hand, he quoted the Bar Council’s concerns about whether the jury principle might be undermined, but then he moved a series of amendments that would considerably increase the scope of the clause. Those two points clearly pull in opposite directions, perhaps suggesting that the clause as drafted is about in the right place.

As the shadow Minister eloquently laid out, once again, clause 164 permits a stranger—a so-called 13th member—to enter the jury room where that person is a British sign language interpreter, to assist a deaf juror in participating in the proceedings. Both sides of the House have agreed that that is a good idea. The shadow Minister read out a quote from the Bar Council that raised some concerns about the sanctity of the jury room being infringed. That is of course an important principle in law. I sat as a juror at Croydon Crown court during the summer recess a couple of years ago, so I know that that is something that the system protects fiercely, and rightly so.

I assure the shadow Minister and the Bar Council that several safeguards are in place to ensure the BSL interpreter cannot unduly influence proceedings. They have to sign an agreement that includes confidentiality and other provisions, and undertake not to engage in any behaviour that might be of concern. They swear an oath to the same effect, and breaking it would be a criminal offence. Only BSL interpreters on the proper register can be used, so someone cannot be picked off the street and wander in; it has to be somebody who is on the approved register to start with.

The shadow Minister asked about the possibility of error. I believe that the intention is to have two BSL interpreters present just in case one makes a mistake or loses attention for a moment, so there is a safeguard there. Of course, if any member of the jury witnesses behaviour that concerns them, it is always open to them to report the matter to the trial judge. I hope that the safeguards that I have just outlined address the points that the shadow Minister and the Bar Council raised.

[Maria Eagle (Garston and Halewood) (Lab)]

If jurors break their oaths and say things outside or reveal things that they should not, there can be contempt proceedings and punishments. Will the same punishments apply to the interpreters? The Minister has set out a number of contractual arrangements, which are all well and good, but will the same obligations lie upon the interpreters as lie upon jurors?

[Chris Philp]

Yes, I believe—in fact, I know, because it is written down in front of me; that is not quite the same thing, but let us assume it is for these purposes—that the provisions create a new offence where a BSL interpreter intentionally interferes in or influences the deliberations of the jury in the proceedings before a court. Yes, there are now criminal provisions being introduced by the clause.

I understand the spirit in which amendments 147 to 161were moved by the shadow Minister, and he mentioned that the hon. Member for Nottingham South assisted in their development. I understand that widening the type of people who might be able to assist could help a wider range of jurors, but there are some concerns about going too far, too quickly.

As the shadow Minister pointed out, this is a significant step. It is a significant departure from centuries of established practice. Allowing a 13th person into the jury room has never been done before. There is a feeling among the stakeholders we consulted—the judiciary, the Bar and so on—that we should take this one step at a time. Let us start with British sign language interpreters and see how that goes. If it is made to work successfully, as we hope it will be, we can look in due course at widening the range of people who might be accommodated.

There are also, I should add, potential capacity constraints. For example, I am told that there are 150 registered BSL interpreters, but only 32 speech-to-text reporters, so one might have issues with the number of available people. This is an important step. Let us take this one step first and then review it on an ongoing basis to see whether we need to go further.

[Alex Cunningham]

I accept the Minister’s explanation as far as the sanctity of the jury room is concerned, so I can leave that to one side. However, in his last few sentences he illustrated why there should be wider provision in this area: so few people are available to provide the services for the particular way he wants to take this clause forward and serve deaf people. I think there is a real opportunity to involve far more deaf people in the system. For that reason, I will press the amendment.

Question put, That the amendment be made.

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Question proposed, That the clause stand part of the Bill.

[Chris Philp]

This is a quick and simple clause. The Office of the Parliamentary Counsel, which has been drafting this Bill, spotted a stray reference in an old piece of legislation to offences punishable by death in the context of jury sizes. It goes back to the concept of small war-time juries being unable to try certain offences where the penalty was death. We no longer have the death penalty, so the OPC thought it was a good idea to tidy up the statute book by removing the reference.

Question put and agreed to.

Clause 165 accordingly ordered to stand part of the Bill.

Clause 166

Remote observation and recording of court and tribunal proceedings

[Alex Cunningham (Stockton North) (Lab)]

I beg to move amendment 72, in clause 166, page 185, line 41, at end insert—

“(8A) The Lord Chancellor may not make regulations under subsection (8) unless the advice of the Senior Data Governance Panel (or similar committee established for this purpose) has first been sought on the provision which they would make.”

This amendment would require the Lord Chancellor to seek the advice of the Senior Data Governance Panel before making regulations governing the broadcast of court hearings.

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The Minister will be familiar with the Senior Data Governance Panel, but for the benefit of Committee members who might not be, it was specifically established to enable the Lord Chancellor and Lord Chief Justice to access advice from external experts on changes to the way in which information about court proceedings is made public. Given that the panel already exists and currently plays a central role in setting the approach for how decisions are made on matters relating to privacy, it seems sensible to us that the Lord Chancellor consults with the panel in making any regulations under the proposed new subsection. I look forward to the Minister’s response.

[Chris Philp]

Clauses 166 and 167 put on to a permanent and sounder footing many of the measures that have been used during the coronavirus pandemic to, first, enable remote hearings to take place and, secondly, where proper, to allow transmission of those hearings. It is important to stress that at all times the judge retains control of the proceedings and it is ultimately for the judge in any particular hearing or trial to decide what is appropriate. Nothing in the provisions fetters that important judicial discretion and safeguard over the management of any individual hearing or proceeding.

On clause 166, over the past year, our courts and tribunals have successfully and rapidly moved the bulk of their proceedings online during the pandemic. Such hearings have been vital in our court recovery.

It should be noted that in the civil and family jurisdictions, and in tribunals, the ability to hold proceedings using audio and video technology is not governed by legislation, but is permissible under the court or tribunal’s inherent jurisdiction. Accordingly, no legislation is needed to enable remote hearings for those jurisdictions, in contrast to the criminal jurisdiction, for which clause 168, which we will consider shortly, makes provision.

Legislation is required to make sure that suitable safeguards are in place to protect those taking part in a hearing and ensure the proper administration of justice. Clause 166 replicates some of the temporary powers introduced during the coronavirus pandemic for that purpose, future-proofs them and brings several new jurisdictions into the regulatory framework. The clause also allows courts and tribunals to provide transmissions of proceedings either to individuals who have identified themselves and requested access, or to specifically designated locations.

As I have already pointed out, judges, magistrates and anyone presiding over a tribunal panel retain the ultimate discretion. Regulations made by the Lord Chancellor, with the agreement of the Lord Chief Justice, will govern much of this area and will enable the regulations to be refined for particular circumstances or applications.

Clause 167 makes several further safeguards in relation to this matter permanent, with a few minor refinements. For example, the clause prohibits the recording or transmission of anyone remotely attending proceedings in a list of major courts and tribunals, unless authorised by the court or tribunal or the Lord Chancellor. It also provides clarity by defining this offence as summary-only as well as contempt, while making new provisions to preclude double jeopardy. It enshrines some of those important safeguards.

On amendment 72, which was moved by the shadow Minister and would compel the Lord Chancellor to seek the advice of the Senior Data Governance Panel, we say that that is not necessary in legislation as set out here. Of course the Government do not make the relevant regulations in isolation. That is why secondary legislation can be brought forward only with the concurrence of the Lord Chancellor—a member of the Government—and of the Lord Chief Justice. The Lord Chief Justice’s concurrence is a very important safeguard.

Of course, in the formulation of regulations of this nature, informal consultation will take place with a number of bodies, including the SDGP, the judiciary, court practitioners, Her Majesty’s Courts and Tribunals Service and other interested parties. The SDGP does of course advise, but it is worth pointing out that the SDGP itself is not on a statutory footing and therefore perhaps it is not appropriate to give it the sort of status that the amendment proposes. That might also risk interfering with the notion of judicial independence. Therefore, although informal consultation with various stakeholders and experts is of course important, we think that the statutory obligation contemplated by amendment 72 goes a little too far.

[Alex Cunningham]

I am content with the Minister’s explanation. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clauses 166 and 167 ordered to stand part of the Bill.

Clause 168

Expansion of use of video and audio links in criminal proceedings

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The safety of trials for vulnerable and child defendants is a matter of grave importance, so I hope that the Minister can understand our anxiety to get this right and will support the amendments so we can put these safeguards in primary legislation.

[Chris Philp]

We have heard extensively from the shadow Minister on the clause, so I do not think I need to repeat too much of what he said about its purpose, save to say in summary that it enshrines the expansion of the use of, or enables the use of, video and audio links in criminal proceedings beyond that introduced last year in the Coronavirus Act 2020, which, as we have already discussed, has enabled a great deal of court recovery.

Clause 168 builds on that progress by moving the barriers, restrictions and inconsistencies in the current legislation, which limits the potential use of live links in criminal proceedings. It is vital to stress that nothing in the clause makes remote technology in any way compulsory or inevitable. It is always a matter for choice by the court, which may choose it for reasons of health, as we have during the pandemic, or have some other reason for thinking it is a good idea. The point is, we are creating a discretion and a power for the court to use. Indeed, some participants, including defendants, may want to exercise their own choice and say to the court—for a particular reason, perhaps the inconvenience of travelling—that they want to participate remotely. It might be easier for a witness to participate remotely, for example, rather than travel all the way to a court that might be a great distance away.

The flexibility that the clause enshrines could be useful in a wide range of circumstances. Those principles have been widely debated in previous clauses and are, broadly speaking, agreed.

The proposed amendments to the clause in essence seek to introduce a range of very specific safeguards to circumscribe or control the way in which the measures may be used by a judge. The Government view, however, is that the safeguards already built into clause 168 and its associated provisions do that already. Let me enumerate what those safeguards are, which I hope will assure the shadow Minister and anyone else listening.

First, the court—the judge—must decide whether it is in the interests of justice for a live link to be used. That is a critical test. In doing that, the court is required to consider

“any guidance given by the Lord Chief Justice, and…all the circumstances of the case”—

I stress, “all the circumstances”.

The amendments have tried to pick out various different, specific circumstances. Inevitably, that list will not be exhaustive—they might forget something—so by saying “all the circumstances”, we give the judge a wide range of discretion. Those circumstances expressly include “the views” of the person who might be invited to attend by live link, so if someone has a particular problem or objection, they may table it and say to the judge why they think it is not right for them to appear remotely, if they are invited to do so. Equally, of course, they might say to a judge, “I would rather participate remotely”, for some reason of logistics or something else.

[Alex Cunningham]

Will the Minister give way?

[Chris Philp]

I am conscious of time and the shadow Minister made a long speech, but on this one occasion, I will give way.

[Alex Cunningham]

I am keen for the Minister to understand that not all defendants who are offered the facility would be legally represented. They might not have appropriate advice about the benefits of appearing in person.

[Chris Philp]

Where someone appears without representation, obviously a whole number of issues are raised, of which this is just one small one. In those circumstances, the judge himself or herself will—and does—carefully talk the defendant through the implications. When someone is unrepresented, the issues are to do not only with live hearings, but all kinds of elements of the proceedings where ordinarily a barrister or solicitor would assist the defendant. In the absence of that, the judge has to lead them, ask them questions and ensure that their interests are properly accounted for by the court in a manner that is impartial and fair.

Another question under clause 168 and its associated provisions that the judge must consider is whether the person concerned could participate effectively in the proceedings. A number of the amendments talk about disability and so on. It is therefore worth enumerating again in more detail the circumstances that must be considered: the nature of the proceedings; whether the person can participate effectively by live link; the suitability of the live-link facilities; and the arrangements that could be put in place for the public to observe the proceedings. There are a lot of things there that the judge is already obliged to take into account to ensure that the interests of justice are served—that the defendant gets a fair trial, or that the witness or victim may participate properly.

On children, the courts already have a statutory duty to have regard to the welfare of children. It is important to acknowledge that there may be situations in which it is beneficial for a child, whether as a witness or a defendant, to appear by live link. It is important that the court can take a balanced judgment, rather than a presumption one way or the other. Critically, however, there is already a statutory duty to have regard to the welfare of the child.

I hope that I have demonstrated, or illustrated, with that long list of considerations that the matters of concern that the shadow Minister has properly raised already have to be taken into account. Ultimately, however, I do not think that it is appropriate for us to seek to legislate for everything in detail, as some of the amendments seek to do. Instead, I have set out the principles to rely on—the good offices and the sober judgment of the judge presiding over the case—to make sure that justice has been done. I have a great deal of confidence in our judiciary to ensure that the right balance is struck, as has been done throughout the pandemic. No one has suggested that, during the pandemic, any particular defendant or witness has been especially badly served. I have confidence in the judiciary to get these balances right, and I believe that the statutory basis of clause 168 is the right one.

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Question proposed, That the schedule be the Nineteenth schedule to the Bill.

[Chris Philp]

Briefly, this schedule is consequential to the previous clauses. Part 1 of the schedule enables non-parties to observe proceedings remotely; part 2 prohibits unauthorised recordings; and part 3 sets out various supplementary procedural matters around the giving, variation and rescinding of live-link directions in criminal proceedings, as provided for in clause 168.

Question put and agreed to.

Schedule 19 accordingly agreed to.

Clause 169

Repeal of temporary provision

Question proposed, That the clause stand part of the Bill.

[Chris Philp]

Very simply, clause 169 essentially repeals some of the temporary measures in the Coronavirus Act 2020, which are superseded by the clauses and schedule that we have just debated.

Question put and agreed to.

Clause 169 accordingly ordered to stand part of the Bill.

Clause 170

Financial provision

Question proposed, That the clause stand part of the Bill.

[The Chair]

With this, it will be convenient to discuss the following: clause 171 stand part.

That schedule 20 be the Twentieth schedule to the Bill.

Clauses 172 to 174 stand part.

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[Chris Philp]

We are entering the final straight of the main section of the Bill and cantering towards the finish line.

In brief, clause 170 contains standard provisions around financial authority. Clause 171 introduces schedule 20, making a number of technical amendments to the Sentencing Act 2020. Clause 172 is a standard clause conferring powers on the Secretary of State to make any consequential amendments. Clause 173 gives the Secretary of State power to amend the sentencing code to incorporate changes to its provisions that are made by this Bill—nothing untoward there—and clause 174 is a standard clause setting out the territorial extent of the provisions in this Bill that we have debated for the last few weeks.

[Alex Cunningham]

Over the days of our debate, Opposition Members have pointed out areas where the Government’s resource assessments seem to be well out of step with the Government’s expectations of the Bill’s impact.

One particular area of concern is the impact on prison places. The Government’s impact assessment has come up with a total increase in the adult prison population of around 700 offenders in steady state by 2028-29. After the hours of debate that we have had on changes to provisions that will extend the custodial period for many sentences and increase sentences for some road traffic offences, I find that number completely implausible. To put my mind at ease, perhaps the Minister could share with the Committee the arithmetic that conjured that number up.

Incarceration is extremely expensive, so if the Government have underestimated the impact, I worry that prison budgets will be stretched even further when they are already at breaking point. If rehabilitation and support for the cycle of offending are to work, they must be properly resourced.

There are areas of the Bill where the Government have not even been able to make an assessment of the cost impact. For instance, in the impact assessment for the changes to detention and training orders, the Government say:

“There will be some individuals that spend longer on supervision in the community under this option, which would incur additional youth offending team costs. It has not proved possible to quantify these additional costs.”

Youth offending teams are so stretched that we have even had to table an amendment to ensure that the current provision of intensive surveillance and supervision is adequately funded across the country; otherwise, the range of appropriate sentencing options for children will be limited. I hope that the Minister can commit to ensuring that additional costs will be robustly monitored so that these services, which save the justice system in the long run by turning people away from offending, are provided with sufficient resource to do their jobs properly.

[Chris Philp]

I simply draw attention to the calculation set out in the extremely extensive impact assessment, which I am holding in my hand, and to the additional 10,000 prison places that are being constructed and the extra probation service personnel who are being recruited.

[The Chair]

I think you had me cantering with you, Mr Philp, because I almost missed out Mr Cunningham altogether.

Question put and agreed to.

Clause 170 accordingly ordered to stand part of the Bill.

Clause 171 ordered to stand part of the Bill.

Schedule 20 agreed to.

Clauses 172 to 174 ordered to stand part of the Bill.

Clause 175

Commencement

--- Later in debate ---

[Victoria Atkins]

I am surprised that the hon. Gentleman thinks that we have rushed into this. There was a period of some nine months, I think, between the White Paper and the introduction of the Bill and Second Reading. The Under-Secretary of State for the Home Department, my hon. Friend the Member for Croydon South, and I have been very careful throughout the scrutiny of this Bill to make it clear where there is extra work to be done. The timeframes, as far as we are able to do so, have been provided.

We very much look forward to continuing to scrutinise the Bill, as the processes of this place and the other place continue in the time-honoured fashion. I am told that we have published impact assessments. Indeed, a great deal of work has gone into the Bill, and into the preparation of documents associated with it. I hope we will be able to continue the positive trends that have emerged during parts of the scrutiny of this Bill into next week. These are important measures and the Government want to pass them as quickly as possible to continue protecting the people we have been so keen to discuss in this Committee.

Question put and agreed to.

Clause 175, as amended, accordingly ordered to stand part of the Bill.

Clause 176

Short title

Question proposed, That the clause stand part of the Bill.

[Chris Philp]

rose—

[Victoria Atkins]

I was going to talk for hours on this, but I see that my hon. Friend wants to beat me to it. This is the short title of the Bill, and we ask that it be cited as the Police, Crime, Sentencing and Courts Act 2021.

Question put and agreed to.

Clause 176 accordingly ordered to stand part of the Bill.

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

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

Chris Philp Excerpts

Tuesday 15th June 2021 Public Bill Committees

[The Chair]

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

[Alex Cunningham (Stockton North) (Lab)]

[Chris Philp]

[The Chair]

[Chris Philp]

[Sarah Champion (Rotherham) (Lab)]

[Chris Philp]

[Sarah Champion]

[Sarah Champion]

[Chris Philp]

[Mr Robert Goodwill (Scarborough and Whitby) (Con)]

[Chris Philp]

[Alex Cunningham]

[Alex Cunningham]

[Chris Philp]

[Alex Cunningham]

--- Later in debate ---

We have to be aware that, under successive Tory Governments, youth services budgets have been cut by 73%, which is nearly a £1 billion since 2010, and we have to consider the impact that is having, particularly in my area of Rotherham, where the early interventions that could put children on the right path to a successful future are just not there any more. Now, rather than preventing the crime, we are looking at heavy-handed ways to punish it. I urge the Minister to speak to us and consider what his Government are doing to address those early intervention gaps to make sure that the measures in this legislation apply only in exceptional circumstances.

[Chris Philp]

[Alex Cunningham]

[Chris Philp]

[Alex Cunningham]

[Chris Philp]

[Alex Cunningham]

[The Chair]

[Chris Philp]

[Alex Cunningham]

[Chris Philp]

[Alex Cunningham]

[Chris Philp]

[Alex Cunningham]

[Chris Philp]

[The Chair]

--- Later in debate ---

I look forward to the Minister’s response.

[Chris Philp]

The clause sets out the functionality for piloting the new electronic whereabouts monitoring requirement and the changes to YROs with ISS to ensure that they are robust and effective before being rolled out nationally. The clause also enables us to restrict the use of the requirements, for example, by age or offender profile, in the light of evidence uncovered in the trial and in practice.

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[The Chair]

[Chris Philp]

[Alex Cunningham]

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[The Chair]

[Chris Philp]

[The Chair]

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[The Chair]

[Chris Philp]

[The Chair]

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

Chris Philp Excerpts

Committee stage
Tuesday 15th June 2021 Public Bill Committees

[The Chair]

That was a very generous and lovely apology.

Clause 106

Increase in requisite custodial period for certain violent or sexual offenders

Question proposed, That the clause stand part of the Bill.

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

Good morning, Sir Charles. It is, as always, a pleasure to serve under your chairmanship. Clause 106 is an extremely important clause of the Bill, because it forms a critical part of the Government’s commitment to ensuring that the most serious offenders spend more time in prison, properly reflecting the gravity of their offences, protecting the public and building confidence in our sentencing regime. It does that by abolishing the automatic halfway release point for certain serious violent or sexual offenders and instead requiring them to serve two thirds of their sentence in prison.

This builds on changes made throughout 2020. First, in February of last year, we changed the release provisions for terrorists and terrorist-connected offenders receiving a standard determinate sentence in order to ensure that they serve at least two thirds of their sentence in custody and thereafter are released only when the Parole Board is satisfied that it is safe to release them. Colleagues will recall the Bill that became the Terrorist Offenders (Restriction of Early Release) Act 2020, which we passed in a day in February of last year to prevent repeats of the Fishmongers’ Hall and Streatham attacks. In fact, the first terrorist who might otherwise have been released early was kept in prison just a few weeks after we passed that Bill. The measure was tested in the High Court last summer and found to be lawful when measured against the European convention on human rights. I thought that the Committee might appreciate an update on that.

Then, in April of last year, we laid before the House a statutory instrument—the Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2020. I will explain what that did. For the most serious sexual or violent offenders with a standard determinate sentence of more than seven years, the automatic release point was moved from half to two thirds, ensuring that those serious offenders spend longer in prison. This clause puts the provisions of that order—a statutory instrument—into primary legislation. Critically, however, it goes further and says that serious sexual offenders and certain violent offenders receiving a standard determinate sentence not just of more than seven years but of between four and seven years will also automatically spend two thirds of their sentence in custody, rather than being automatically released at the halfway point; the release at the two-thirds point will still be automatic. It applies to any sexual offence carrying a maximum life sentence, including rape. I know that rape and related sexual offences are rightly of concern to the Committee, so it is worth stressing that this clause will ensure that rapists spend longer in prison.

[Hywel Williams (Arfon) (PC)]

What assessment has the Minister made of the effect on the prison population, particularly in Wales, which already has the highest rate of imprisonment in western Europe with 154 prisoners per 100,000 of the population of Wales, compared with 141 per 100,000 in England? Given the possible effects of inflation on the length of sentences, what provision will he make specifically for Welsh prisons to cope with that?

[Chris Philp]

We have indeed made such an assessment. We have done it for the whole jurisdiction, and the steady-state impact on the prison population is 255 prisoners. I do not have a breakdown for Wales, but I estimate—this is simply my off-the-cuff estimate—that the portion of that 255 that applies to Wales might be in the range of 10 to 20 prisoners in Wales. That is just my off-the-cuff estimate, not an official figure, so it carries quite an important health warning.

On the prison population impact and prison capacity more generally, the hon. Gentleman will be aware that the Government are committed to building an extra 10,000 prison places to make sure we can cater to increased demands in the Prison Service as we make sure dangerous criminals spend longer incarcerated.

[Sarah Champion (Rotherham) (Lab)]

Building an extra 10,000 prison cells is very costly. Does the Minister agree that investing more in rehabilitation and preventive programmes might be a better use of the money?

[Chris Philp]

Of course, we do believe in rehabilitation and prevention, and a lot of work is going on in that area, but we are talking about people who have been convicted of offences such as rape and murder. On Second Reading, Members made the point about making sure that particularly sexual offenders, including rapists, spend longer in prison. There were different views on how that could be achieved, but there seemed to be broad unanimity across the House that such offenders should spend longer in prison, and the clause does exactly that. However, it in no way detracts from the importance of prevention and rehabilitation that the hon. Lady mentioned a second ago.

I should say that caught in this clause are not just sexual offenders who commit offences, including rape, with a life sentence, but also the most serious violent offenders, which includes those who commit manslaughter, attempted murder, soliciting murder, and wounding with intent to cause grievous bodily harm, so I think our constituents up and down the country will welcome the fact that these serious offenders will spend two thirds of their sentence in prison and not just a half.

Provision is also made in this clause for the two-thirds release requirement to apply to those under the age of 18 who were given a youth standard determinate sentence of seven years or more for a sexual offence with a maximum penalty of life, and for the other very serious violent offences just referred to. The changes are made by inserting new section 244ZA into the Criminal Justice Act 2003 to make the necessary provisions. The measures will ensure that the proportion of the sentence reflects the gravity of the offence committed, and are intended to address long-held concerns, both in Parliament and among the public, about the automatic halfway release for serious offenders.

The two-thirds point also aligns with the release point for offenders found to be dangerous and therefore serving an extended determinate sentence, whose eligibility for release by the Parole Board commences from the two-thirds point, so it introduces consistency and coherence into the sentencing regime as well. On that basis, I commend this very important clause to the Committee.

[Alex Cunningham]

Clause 106, as we have heard, follows the Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2020, which altered the automatic release point for offenders who have committed a specific sexual or violent offence. As the Minister said, the effect of the release of prisoners order was to move the automatic release point from halfway to two thirds of an eligible prisoner’s sentence, and would apply to those found guilty of specific sexual or violent offences for which the penalty is life, and who were sentenced to seven years or more in prison.

Clause 106 implements the proposal in the “A Smarter Approach to Sentencing” White Paper to extend these changes to include sentences of between four and seven years for any of the sexual offences already specified, but only to some of the specified violent offences. That raises a point of concern for the Opposition. Why does the clause apply to all the sexual offences covered by the release of prisoners order, but only some of the violent offences?

Clause 106 will apply only to manslaughter, soliciting murder, attempted murder, and wounding causing grievous bodily harm with intent. This is precisely the point that the Opposition are trying to make. First, the release of prisoners order fundamentally changed the sentencing and release regime. Now the Government propose to extend the regime, but only to some of the original offences, with the other offences remaining the same. How on earth can that do anything but confuse an already notoriously confused system? I have asked before, what is the point of the remarkable work of the Law Commission on producing a much simplified sentencing code if the Government continue to tinker with sentencing and release provisions?

It is not only the Opposition who are concerned by the direction of travel the Government are taking on sentencing complexity. After considering clause 106, the Sentencing Academy agreed that its inclusion,

“unquestionably makes sentencing more complex and less intelligible to the public. Anecdotal evidence suggests that the judiciary are already struggling in discharging their statutory duty to explain the effect of the sentence as a result of the SI 2020/158 change. This proposal will make this task more difficult and result in a greater number of errors.”

The academy goes on to express its concerns in full:

“We expressed concerns about the reforms last year and this provision exacerbates our concern. Proportionate sentencing is not well-served by a system in which identical sentence lengths have a significantly diverging impact in practice: two nine year sentences should carry the same penal weight; it should not mean six years in custody for one offence and four-and-a-half years in custody for another. The decision to exclude some violent offences from this proposal makes the system yet more perplexing: how can a seven year sentence for kidnapping justify four years and eight months in prison when a six year sentence for the same offence merits three years?”

I wonder if the Minister could explain that point to the Committee.

Let me be clear: Labour supports moves to ensure that the most serious and violent criminals receive longer sentences when there is evidence that their sentences do not match the severity of their crimes. That is why the Opposition supported the Government’s moves to introduce clause 101 to extend whole-life orders for the premeditated murder of a child; clause 102 to extend whole-life orders to those who are 18 to 20 and have committed particularly heinous crimes; and clause 103 to increase the starting points for murder committed as a child. However, we cannot support a series of yet more changes to sentencing and release, which will only further confuse the system and make the task of members of the judiciary even more difficult, resulting in a greater number of sentencing errors.

The Prison Reform Trust makes a good point on the Government’s proposed changes to sentencing and release when it says,

“that only serves to demonstrate the complexity of sentencing law in this area, and the extent to which the government adds to that complexity every time it responds to an individual crime by promising a change in sentencing law.”

If the Government want to ensure that serious violent and sex offenders spend longer in prison, they can easily do so simply by increasing the maximum sentence length for the relevant offences. Taking that route rather than what the Sentencing Academy describes as,

“sentence inflation via the back door”

would not lead to judges being confused and making sentencing errors. Moreover, it would not lead to the public being confused and losing faith in our sentencing system. Taking that route would also mean that prisoners spend longer in jail without having to lose out on the rehabilitative properties of spending half their sentence in the community.

That brings me to another fundamental concern that the Opposition have with clause 106. By requiring an offender to spend additional time in prison, the amount of time that they would spend in the community under supervision would decrease significantly. As the Howard League notes, we know that reducing

“the amount of time which people who have committed serious offences spend under the supervision of probation services in the community…is likely to undermine public safety rather than helping to keep victims and the public safe. Though there is no single model of probation supervision, a rapid evidence review across jurisdictions and models suggests that community supervision in itself reduces reoffending—unlike time in prison, which increases reoffending rates.”

To sum up, the Opposition agree with the Government that where evidence exists that sentences do not properly reflect the severity of the crimes committed, sentencing reform should absolutely be an option. None the less, sentencing reform should be properly considered and guided by the principles set out by the Lord Chancellor in his foreword to the White Paper. Sentences should make sense to victims, members of the judiciary and legal practitioners. More importantly, sentences should make sense to the general public. Only when the general public and victims of crime understand our sentencing regime will they have full faith in it. We believe clause 106 goes against those principles, and for that reason we cannot support it.

[The Chair]

Are there any colleagues who would like to participate before I call the Minister? If not, I call the Minister.

[Chris Philp]

I feel bound to reply to some of the points that the shadow Minister has just made. First, he said that the provisions make sentencing more complicated and that it will be harder for the judiciary to understand. I will pass over the implied slight on the judiciary’s ability to absorb complicated sentencing, but the measures relate exclusively to release provisions; they make no changes to the way that sentencing works. As such, this does not change anything a judge will do in passing sentence. The release decisions, and the administration of that, are obviously done by the Prison Service and the National Probation Service down the track. The release provisions have nothing at all to do with sentencing, so let me assure the shadow Minister on that point.

Secondly, the shadow Minister said that if we want people to spend longer in prison, we should increase the maximum sentence. By definition, the way that the provisions are constructed mean that they relate only to offences where the maximum sentence is life. It is not possible to increase a sentence beyond life—life already is the maximum. The only way to increase the sentencing is for the Sentencing Council to change its guidelines, and as the shadow Minister knows, the Sentencing Council is independent of Government and is chaired by Lord Justice Holroyde. However, I note in passing that average sentence lengths passed down by judges for serious offences have been increasing. Since 2010—a date that I choose arbitrarily—the average sentence for rape has gone up by about two and a half years, so judges have chosen to increase sentence lengths in the past 10 years.

The shadow Minister asked why the selection of violent offences with sentences between four and seven years is narrower than those above seven years. To be completely clear, the list of sexual offences is the same: between four and seven years, and seven-plus. I think the shadow Minister did say that, but I repeat it for clarity. The reason is that we are trying to calibrate the provisions in order to target the most serious offences, which include all serious violent and sexual offences where the sentence is more than seven years, and all serious sexual offences where the sentence is between four and seven years, but just that smaller selection of violent offences, such as manslaughter and so on, which we talked about earlier. We are attempting to calibrate this to the most serious offences.

Finally, the shadow Minister asked about public perception. Over the past 10 or 20 years, the public have been both confused and angered that a court hands down a sentence to a very serious offender—we are talking about sentences that carry a maximum of life, such as manslaughter and rape—and the offender then walks out halfway through a sentence, or less than halfway when time on remand in taken into account. The public are angered by that. In fact, as a Minister in the Ministry of Justice, I get quite a lot of correspondence from members of the public who are angry about serious offenders getting released inappropriately early, as they see it. I agree, which is why we will ensure that the most serious offenders spend longer in prison. If the Opposition vote against this measure, as it would appear they are about to do, they are voting to say that they do not think those serious offenders should spend longer in prison. They are voting for people who have committed manslaughter or rape to be released from prison earlier than would be the case if the clause were passed. I think the public expect us to do something different, and I ask the Opposition to think again—particularly given that, on Second Reading, both sides of the House seemed to be arguing that people who commit very serious offences, including rape, should spend longer in prison. The clause does exactly that. On that basis, I commend it to the Committee.

--- Later in debate ---

Question proposed, That the clause stand part of the Bill.

[Chris Philp]

Clause 107 makes some changes to SOPC—sentences for offenders of particular concern—essentially to tidy up an anomaly that arose from the changes made last year. As Members will recall, under the changes we made last year to terrorism sentencing, when a terrorist offender had a SOPC sentence the release point was moved to two thirds, at which point they became eligible for consideration for release by the Parole Board. However, two child sexual offences also carry a mandatory SOPC sentence where there are different release provisions.

In this clause, we are simply making a change to make the release provisions for those two child sex offences in relation to the SOPC sentence the same as those for the terrorist sentence—that is to say, they will serve two thirds, following which they will be eligible for consideration for release by the Parole Board. That makes the sentence the same as for the other terrorism SOPC offences and the same as the extended determinate sentences. In his last speech, the shadow Minister spoke in a spirit of simplification and consistency, and this change is consistent with that principle. I commend the clause to the Committee.

[Alex Cunningham]

The Minister likes to have his little digs; I think he quite enjoys them. I assure the Committee and everybody else that I have full confidence in the judiciary. If the Minister had as much confidence as I do, perhaps he would not be mucking about so much with the system and would leave the judiciary to sentence within the regime that exists.

As we have heard, as with clause 106 the purpose of clause 107 is to increase the proportion of the time certain offenders spend their sentence in jail. In this case, we are talking about offenders of particular concern, meaning those who have been convicted of one or two child sexual offences or certain terrorist offences. As set out by the Minister, as things currently stand different release arrangements apply to offenders of particular concern convicted of terror offences and those convicted of child sexual offences.

Clause 107 would change that by ensuring that all offenders of particular concern would serve two thirds rather than one half of their sentence in prison, before applying to the Parole Board to be released. Given that I have spoken extensively on the same matter, or very similar matters, in clauses 105 and 106, this speech will be very short. For the reasons I set out in relation to those clauses, we cannot support clause 107. Although the Opposition agree that those who have committed the most serious violent and sexual offences should spend longer in prison, we do not believe that the method set out in clauses 105 to 107 is the best vehicle to meet this policy objective.

The Opposition cannot support more changes to the sentencing and release regimes. Contrary to what the Minister says, that will further complicate our sentencing system and risk victims of crime and members of the public losing faith in it. If the Government want to ensure that offenders spend longer in prison, where the evidence base suggests they should, we believe there are better ways of achieving that goal.

[Chris Philp]

I have nothing to add, except one point that I should have made in my earlier speech. If someone with a SOPC serves their entire sentence in custody, they get a year on licence after release. That is an important point to add to my previous remarks, but I have nothing further to add to my speech on clause 106: the same points apply.

-Question put, That the clause stand part of the Bill.

--- Later in debate ---

[The Chair]

Will the Minister rise?

[Chris Philp]

Sorry, Sir Charles; I was momentarily moved to speechlessness by the fact that the Opposition have just voted to let child rapists out of jail earlier than the clause proposes.

[Alex Cunningham]

No, we did not.

[Chris Philp]

Let us move on to clause 108, which relates to a new power for the Secretary of State to prevent the automatic release of offenders serving a standard determinate sentence, where release is ordinarily automatic, and instead refer them to the Parole Board in certain, very limited circumstances.

With a standard determinate sentence at the moment, there is automatic release at either the halfway point or, for more serious offences, at the two-thirds point, as per clauses 105 and 106. Clause 108 creates a new power to allow the Secretary of State to refer a prisoner who is in custody and assessed as dangerous to the Parole Board, to decide whether or not they are safe to release. Prisoners who are serving a standard determinate sentence, for any offence, who have become dangerous or who are identified as being dangerous while they are in prison get this referral.

To be clear, we are not creating a new kind of indeterminate sentence like the old imprisonment for public protection sentences, created in 2003, in which the sentence could carry on forever if someone were considered to be dangerous. The maximum sentence originally passed by the court on conviction and sentencing still applies.

We are not overriding the sentence of the court, but we are saying that if an offender is identified as dangerous they may continue to serve their determinate sentence until its end, unless and until the Parole Board, after the release point, decides that they are safe to release. It means that if someone becomes dangerous, they do not automatically get released early.

[Sarah Champion]

The Minister will see from an upcoming amendment that I am interested in this clause. Can he give some clarification? Will he define “dangerous”? I assume that is within the prison context, as opposed to the crime being served for.

Will the Minister give some details on when and why the Secretary of State might intervene? At the moment, depending on the Parole Board’s decision, the Secretary of State already has 21 days to intervene. Will he explain what the clause will bring to the table?

[Chris Philp]

I am happy to answer all those questions, which are good questions. The 21-days provision that allows the Parole Board to think again has nothing to do with this; it is completely separate. It is a live issue in the terrible Pitchfork case, which Members will be aware of.

The provision in which the Parole Board takes a decision to release and the Secretary of State may ask it to think again, within 21 days, applies to any Parole Board release and is a matter currently being considered. That is wholly separate from this provision. It relates to any Parole Board release decision and was prompted by the awful Worboys case two or three years ago.

Here we are talking about where a prisoner is serving a standard determinate sentence and would ordinarily be released automatically without any Parole Board involvement at all, and the Secretary of State says, “Well, I think actually they are now dangerous”—I will come on to what that means in a minute—“and instead of automatic release, can the Parole Board look at the case and decide whether they are suitable for release, once their release point is passed?” That is different from the 21-days reconsideration.

The hon. Member for Rotherham asked for the definition of becoming dangerous and whether it means dangerous in a prison context. The answer is no. It does not mean dangerous in a prison context; it means dangerous to the public. One might ask what “dangerous to the public” means. The definition of “dangerous” in this context has a high threshold—we anticipate this provision will be used extremely rarely; it is not going to be a commonly used provision. It is that an offender is at “significant risk” of causing “serious harm” to the public by committing murder or one of the serious offences listed in schedule 18 of the Sentencing Act 2020, such as manslaughter, rape or terrorist offences, and that the risk cannot be sufficiently managed through the use of licence conditions.

If a referral is made, the Parole Board will consider it. It may say, “We will release them anyway” or, “We think there is a danger; we are going to keep them inside.” It can only keep them inside prison until the end of the original sentence that the court handed down.

I will give an example not caught by our new provisions. To take the example the shadow Minister used, let us say there is a six-year sentence for kidnapping. Currently, there would ordinarily be automatic release after three years. If for some reason there is evidence that the person who has been committed for kidnap might commit a terrorist offence or might kill someone, the Secretary of State can refer and the Parole Board will then consider, “Are they dangerous? Can we release them?” If it decides to keep them in prison, they can be kept in prison up to the six years of the original sentence, but no later. During the final three-year period in my example, the Parole Board will look at the case periodically.

If, after reference to the Parole Board, the prisoner thinks there has been an unreasonable delay—“I should have been released after three years, but it is now three years and six months and no one has looked at it; this is unreasonable”—they can refer the matter to the High Court to get it sorted out. There is a safety mechanism so that there cannot be an unreasonable delay.

[Alex Cunningham]

Will the Minister confirm something? In the event of a dangerous person—a radicalised person—being required to serve their full sentence, will they be released into the community without any supervision or licence conditions when they get to the end of the sentence?

[Chris Philp]

The shadow Minister is correct.

[Alex Cunningham]

Why?

[Chris Philp]

That already happens, of course, with extended determinate sentences, where it is possible that the person will spend all their sentence in prison. If the Parole Board does that, there is no subsequent period on licence—unlike the SOPC that we just talked about, where there is a minimum of one year on licence afterwards.

Of course, when the Parole Board makes decisions about whether to release in the final half or third of a sentence, it will be aware of the point that the shadow Minister made. If it thinks that public safety is best served by releasing a little bit before the end of the sentence to allow that one year, or whatever it may be, on licence at the end, it is within its power to consider and do that—so instead of the individual serving all the sentence inside, there would be a bit of release on licence at the end. The Parole Board can think about that at the end if it chooses to.

[Alex Cunningham]

But surely the point remains that this person, who is said to be a danger to the public although there may not be sufficient evidence to convict him of another charge, will be released into the community at the end of their sentence—after six years, 10 years or whatever—and will still be the same dangerous person he was thought to be by the Lord Chancellor, through the Parole Board, when he was in prison.

[Chris Philp]

Under ECHR and common-law provisions, we cannot extend a sentence beyond what was handed down by the court. Of course, that was the big problem with the old IPP sentences, where people could stay in prison forever; indeed, there are still people in prison under IPP sentences.

We have to work within the envelope—within the maximum sentence handed down by the court originally for the offence originally committed. The judgment is essentially to be exercised by the Parole Board on how best to protect the public, by striking a balance. Do we leave people in prison for the whole time or do we release them a bit early with a period on licence? That is a judgment that the Parole Board has to make to best protect the public. In some cases, if it thinks that the risk is very high, it may consider that the whole term in prison is the best way.

Take the example of the six years. The Parole Board may say, “Well, six years in prison is better than five years in prison followed by one year on licence”. It is a judgment that the Parole Board must make. We cannot reasonably go beyond that six years, because that would be potentially unjust: we would be punishing someone and imposing a sentence that was longer than that originally handed down by the court for the offence of which they were convicted. That would be contrary to natural justice, common law and ECHR provisions.

That is why the measure is designed as it is, and I hope that makes sense.

[Maria Eagle (Garston and Halewood) (Lab)]

The old IPP sentences had their problems; they were much too widely used and were not originally intended to be that widely used. There was an issue about them, certainly. However, would not that kind of sentence—one that was indeterminate but able to be cut short when the individual concerned could demonstrate that they were no longer dangerous—be the answer in some of the kinds of tangents that the Minister is talking about?

The Minister seems to be tying himself in knots, to say, “Well, it’s going to be either three years or six years, but we all know that the person is coming out at the end”. Originally, IPP sentences were legislated for to deal with this very issue, but of course they ended up being too widely used. Is there not a better way of reintroducing some kind of IPP sentences that would enable greater safety but be much more narrowly used?

[Chris Philp]

Can I clarify whether the hon. Member is talking about potentially indeterminate sentences?

[Maria Eagle]

Yes.

[Chris Philp]

She is. Okay.

We debated this issue internally, when we were designing the clause. Clearly, one of the options considered was reintroducing some form of IPP sentence, which is, as the hon. Lady said, indeterminate, meaning that it could go on forever. That was not done because there is potentially an inherent injustice. We have been using the example of kidnap, so let us keep using it. If someone commits that offence and the judge decides that six years is the right sentence, to then say that that person, having been given a fixed sentence, could spend the rest of their life in prison because of a risk that they might offend later—they had not committed a more serious offence; it is just that they might—struck us as being inherently unjust.

Do hon. Members remember the film “Minority Report”, where people were incarcerated because it was judged that they might commit an offence in the future? If we get into the territory of imposing a penalty, which could be imprisonment forever, because someone might commit an offence rather than because they actually have committed an offence, we are straying into potentially slightly dangerous territory.

[Maria Eagle]

I was not suggesting that; I was not suggesting that people who have been given determinate sentences should then arbitrarily suddenly find themselves with an indeterminate sentence. What I was suggesting was that perhaps there are a small number of cases for which it would be appropriate to reintroduce the possibility for judges to give indeterminate sentences again. The problem with the IPP was that it was much too widely used; I think the wording was too broad and it was much too widely used by sentencers. But the purpose of it was to deal with just these cases that the Minister is talking about.

I am not suggesting that somebody who has been given a determinate sentence should then arbitrarily be given an indeterminate sentence. However, if an indeterminate sentence for public protection was available in very narrow circumstances to judges, would that not fill this gap in a more coherent way than the way in which the Minister is trying to do it?

[Chris Philp]

Clearly, if the original offence for which the offender is sentenced is one of the more serious ones that we have been talking about—for example, even offences that we consider to be moderately serious, such as committing grievous bodily harm with intent, have life sentences—the judge can, if he or she chooses, impose a life sentence and set a tariff for consideration for release, so there is flexibility. We are talking about cases where the original offence is not one of those very serious ones that has a life sentence, but one that has a fixed determinate sentence. I think the hon. Member is asking if we can give the judge the power to say that, even though the original offence has a fixed maximum sentence of, for example, only five years, they will override that and say, “Actually, for some reason that is not to do with the original offence, but is just to do with some other assessment of public risk, I will give you an indeterminate sentence.” I think that is the question.

[Maria Eagle]

indicated dissent.

[Chris Philp]

No, it is not.

[Maria Eagle]

Not quite. I was suggesting that perhaps the Minister should legislate for indeterminate sentences in particular circumstances and give the judge that discretion, but in a much narrower band of offences than those that ended up getting indeterminate sentences in the past. Indeterminate sentences have all been abolished now—they cannot be used. If I might say so, it seems that the Minister is trying to deal with the very issue that they were introduced to deal with in a very convoluted manner.

[Chris Philp]

No, we are trying to do deal with the issue of prisoners who become dangerous, or who clearly pose a danger to the public, while they are in prison, but without doing what IPPs did. IPPs were abolished for a reason in 2012: people who committed a particular offence with a fixed sentence of, say, five years could end up in prison forever. As I have said, for more serious offenders the judge has the option of a life sentence, but we do not think it is right that someone could commit an offence with a fixed sentence, such as five years, and end up in prison for life, not for an offence they have committed, but for one that they might commit in the future.

This is the best way of balancing that public protection consideration against natural justice—that the punishment should fit the crime—and avoid a “Minority report”-type situation where someone is incarcerated for a crime that they may commit in the future, but have not yet committed. This strikes the right balance. We stay within the envelope of the sentence handed down by the judge. The judge has the option in serious cases to hand down a life sentence already, but we have just changed the release provisions.

We have debated the clause relatively extensively, Sir Charles. It strikes the right balance between natural justice and protecting the public. On that basis, I commend it to the Committee.

[Alex Cunningham]

As we have heard, clause 108 would create a new power to allow the Lord Chancellor to refer a prisoner to the Parole Board who would otherwise be eligible for automatic release, if he believes that they have become a significant danger to the public while in prison. Rather than being freed at the halfway or two-thirds point of a sentence, they would be released only if the Parole Board thought it was safe. If the Parole Board did not believe it was safe, they would continue to serve the rest of their sentence in prison, unless the Parole Board consequently changed its mind. As the Minister has confirmed, if they served the whole of their sentence in prison, they would then be released into the community without any licence conditions or supervision.

It is safe to say that the Opposition have several serious concerns with clause 108, and largely agree with the Prison Reform Trust in believing that

“this clause creates a constitutional and legal mess”.

Let us start with the basics. As is set out in the explanatory notes to the Bill, this is a brand new power, the beneficiary of whom is the Lord Chancellor.

[Chris Philp]

I say with great respect to the shadow Minister that the beneficiary of this clause is not the Lord Chancellor, but the general public, who might be protected from dangerous offenders who would otherwise be released.

[Alex Cunningham]

The Lord Chancellor is the beneficiary, because he is given a new power to change things and refer.

The effect of the clause is that, for the first time for these types of prisoners, the Lord Chancellor will have the power effectively to refer a prisoner to have their sentence conditions varied, should the Parole Board agree. We all understand that. For example, if a prisoner is sentenced to five years for shoplifting, under current legislation they would become eligible to be automatically released on licence at the halfway point of their sentence. Under the new provision, if the Lord Chancellor believes that the shoplifter had become radicalised in prison, he could refer the prisoner to the Parole Board, which could prevent his automatic release. That would, of course, be without the prisoner ever having been charged or found guilty of any further offence while in prison.

That raises two fundamental questions. First, is it right or proper for the Lord Chancellor to be involved in the management of individual prisoners? How will he make the decision to refer somebody to the Parole Board? What criteria will be used for the Lord Chancellor to make such a referral decision? Secondly, is this not a case of punishment without due process, and therefore unlawful?

On the first point, I note the remarks of the Sentencing Academy on clause 108:

“giving the Secretary of State for Justice the power to intervene in the management of an individual offender’s sentence gives rise to concern about undue political interference in the sentences of individual offenders.”

I accept that the final decision rests with the Parole Board. That raises the all-important question of whether the Secretary of State for Justice, who is after all a member of the Government, is really the right person to decide who should be referred to the Parole Board in a prison that could be hundreds of miles away.

That is by no means the only question provoked by clause 108, as currently drafted. The questions go on and on. Perhaps the Minister will be good enough to provide clarity on at least the following points today. What evidential tests will have to be satisfied for the Secretary of State to make a referral to the Parole Board, and who will be responsible for collecting that evidence? What standard of proof will the Secretary of State use when deciding to make a referral or not? Will he have to be satisfied that someone has become a significant danger on the balance of probabilities, or beyond reasonable doubt? If the Secretary of State is so concerned that someone has become radicalised or poses a serious threat, why not simply take that person to court and allow a judge to consider the evidence? Are the Government simply trying to avoid the inconvenience of having to provide evidence and have it tested in open court? Is it not a dangerous precedent for the Secretary of State to become involved in determinations made about individual cases?

That brings me to my next concern. What happens to a prisoner who, after being referred by the Secretary of State to the Parole Board, is refused their automatic release? As I understand it, if the offender is denied automatic release, he or she could spend the rest of their custodial sentence in prison, rather than some of it on licence in the community. Those prisoners will be released before the end of their sentence only if and when the Parole Board authorises it.

That raises two further concerns. First, it would create what Jonathan Hall, the independent reviewer of terrorism legislation, has described as a “cliff-edge effect”, which is where an offender who has specifically been identified as being a significant danger to the public while in prison spends their entire sentence in custody and is released into the community without any licence or monitoring conditions. Let us think about a possible scenario. A prisoner has been convicted for non-terrorist or non-violent crime and is sentenced in court to, say, five years. They are specifically told by the court that they can expect to be automatically released from prison at the halfway point of their sentence—in that case, two and a half years. Instead, they receive the news that the Secretary of State has reason to believe that they have become a danger to society while in prison. The Parole Board agrees, and their sentence is retrospectively changed so that they can spend the whole sentence in prison.

I am sure the Minister will agree that that offender would have some right to be angry with the criminal justice system and society at large. They would then be released, harbouring that anger, without any licence conditions or supervision. Does the Minister not see what the consequences of that could be? Would it not be better simply to collect any evidence and allow a court to come to a determination? Surely, if the evidence of what is effectively an offence exists, the person should be charged and sentenced for that offence.

During the evidence session on 18 May, the Minister tried to convince the Committee that clause 108 would not create that cliff-edge effect by indicating that if the authorities were particularly concerned about an individual offender, the Home Secretary could impose a terrorism prevention and investigation measure on them. However, that excuse simply does not stack up. As Jonathan Hall, QC, pointed out, TPIMs are extremely resource-intensive and very rarely used, especially in these circumstances. As the Minister will be aware, for each of the three-month periods between 1 December 2018 and 30 November 2019, only three to five TPIMs were in place nationally.

--- Later in debate ---

[Hywel Williams]

I want to raise one particular point. Is the Minister aware of the Welsh Government’s recently published race equality action plan, which states its commitment to developing a race equality delivery plan that will address the over-representation of black, Asian and minority ethnic people in the criminal justice system? Indeed, in Wales, more black and minority ethnic people are in prison than elsewhere in the United Kingdom. Does he share my concern that this and other clauses might militate against the policy of the Senedd in Cardiff, a legislative public body that has been democratically elected?

[Chris Philp]

I will try briefly to respond to some of the points raised by Opposition Members in relation to clause 108.

First, on whether the clause somehow infringes natural justice or the ECHR, or imposes a penalty without due process, as the shadow Minister put it, I can categorically say that it does not, because under no circumstances can anyone spend a longer period in prison than the original sentence handed down by the judge. The clause relates to the administration of the release provisions. It is a long-established legal principle that the administration of a sentence—whether it is spent inside or outside prison, for example—is a matter that can be varied in the course of the sentence being served.

This matter was tested in the courts relatively recently when we passed the Terrorist Offenders (Restriction of Early Release) Act 2020. The very first person who was effectively kept in prison longer than they ordinarily would have been, because their release point was basically moved by that Act, went to the High Court and tried to make the case that that was an infringement of their rights because they thought they were going to get released automatically at two thirds, but were instead referred to the Parole Board, which did not let them out. Because of TORA, that has been tested in the High Court and found to be lawful—that is to say, the administration of the sentence can be varied.

The reason we have gone no further than that and have said that someone cannot be kept in prison for longer than the original sentence—the hon. Member for Garston and Halewood was probing on this in her interventions—was that we think that would infringe the principle of natural justice. The shadow Minister questions whether we have gone too far and the hon. Member for Garston and Halewood thinks we have not gone far enough, which might suggest that we have landed in around the right place.

There was then the question from the shadow Minister on the cliff edge issue: if someone serves all of their sentence in prison, they then spend no time on licence, by definition. That does, of course, apply to any of the existing extended determinate sentences if the Parole Board decide to keep the prisoner inside prison for the whole of their sentence. The potential for the cliff edge does exist, but when deciding whether to release early the Parole Board can, of course, take into account whether the public are better served by the whole sentence being spent in prison, or most of it in prison and a bit of licence at the end. In no sense are the public any less safe if the prisoner spends all of the sentence in prison, given that the sentence is a maximum. The prisoner is in prison, clearly, and cannot commit an offence during that period.

On rehabilitation, it can of course take place, it does take place, and it should take place in prison as much as in the community. Significant resources are being invested in that rehabilitation process in prison, led by the Under-Secretary of State for Justice, my hon. Friend the Member for Cheltenham (Alex Chalk).

On the matter of the propriety of the Lord Chancellor making the referral, as raised by the shadow Minister and by the hon. Member for Rotherham, the power is the power of referral. The Secretary of State for Justice, the Lord Chancellor, is not making any final decision himself or herself about release, and is simply referring a prisoner to the Parole Board to make that determination and that decision. That does not constitute undue political interference in the process.

[Alex Cunningham]

Will the hon. Member give way?

[Chris Philp]

I am anxious to make progress, but I will take an intervention.

[Alex Cunningham]

I am grateful to the Minister for giving way. For me, the issue is the basis on which the Lord Chancellor makes the decision to refer. What evidence test is used and who gathers that particular evidence?

[Chris Philp]

Most likely, as a matter of practice, that would be the prison governor or prison authorities who see behaviour of concern, and might draw the matter to the attention of the Ministry of Justice and the Secretary of State.

The shadow minister asked what test was applied. The test is whether there is a significant risk of serious harm to the public by the offender potentially committing a serious offence, such as murder, in the future, as listed in section 18 of the Sentencing Act 2020, and that the risk cannot be sufficiently managed through the use of licence conditions. That is the test that will be applied by those making decisions, but ultimately the decision is for the Parole Board.

The concept of the Parole Board making a discretionary decision about whether to release already exists, and has done for years. Currently it exists in the contest of extended determinate sentences, and in the past it existed—in theory at least—for every single sentence passed. It already happens for thousands and thousands of extended determinate sentences, so what is proposed here is not a radical departure from current practice for extended determinate sentences, nor indeed for people on a life sentence with a tariff. The referral process can add to the criteria taken into account for those offenders. We would expect that to involve small numbers.

In answer to the issue relating to Wales raised by the hon. Member for Arfon, we are expecting the numbers to be extremely low. It will not have a significant impact on overall numbers. It is, mercifully, pretty rare for that sort of evidence to come to light. If the evidence is at the level that it merits prosecution—planning, preparing or inciting an offence, which was asked about—obviously prosecution is the first option. Prosecution for the offence will always be the first option, but if we cannot establish that an offence has been committed to the required criminal standard, a Parole Board referral is the next best thing up to the maximum sentence, but no further. I hope that address the questions—

[Alex Cunningham]

I asked the Minister to address the issue of the number of TPIMs likely to be applied in the event of somebody considered to be dangerous when leaving prison.

[Chris Philp]

I cannot speculate on what may happen in the future. The shadow Minister pointed out that the number of TPIMs in use is pretty small and that is most certainly true. Equally, the number of people likely to be referred in that way will be small, albeit likely to be larger than the number of TPIMs. As I said, there is the option for the Parole Board not to have the person serve the full sentence but to have a little bit at the end served on licence. There is that option, as well as the TPIM, plus the option for the police and security services to keep people under observation more generally, if they are concerned. I hope that answers the point.

[Alex Cunningham]

The Minister has given a full response to some of the issues I raised but not a sufficient one. I am worried about the evidential test in relation to this matter. The Minister said if there is sufficient evidence for a prosecution while the person remains in prison, there will be a prosecution, but if that evidence does not meet a criminal test, there can be no prosecution and this legislation will be relied on to retain the person in prison following a referral to the Parole Board. We remain very concerned about that and about the standard of proof, which we also talked about.

Ultimately, this issue is about how prisoners are managed in the longer term and their rehabilitation. The fact remains that someone who is considered dangerous, though not dangerous enough to be prosecuted, can be released into the community at the end of their sentence without any supervision or conditions. I accept that the Minister says the security services or police might keep an eye on them. That is insufficient if somebody is considered to be so dangerous. On that basis, we still oppose the clause.

Question put, That the clause stand part of the Bill.

--- Later in debate ---

In contrast, Labour has a full victims Bill published and ready to go. It would, among other things, put on a statutory footing key victim rights, including the right of victims to be read their rights at the point of reporting or as soon as possible; the right of victims to access regular information about their case; the right to make a personal statement to be read out in court; and the right to access to special measures at court, for example video links, where appropriate. Again, I am sure that my hon. Friend the Member for Rotherham will agree with me that adopting Labour’s victims Bill would add to the good work that she has done and show that the Government were serious about putting victims first, but as we wait for the Government to act comprehensively in this space, they could take a step forward and demonstrate their good intent by accepting my hon. Friend’s amendment.

[Chris Philp]

I thank the hon. Member for Rotherham for moving her amendment and for her remarks, the spirit of which I certainly completely agree with. Amendment 145 covers only moves to open prisons rather than Parole Board release decisions more generally. I think it is worth making it clear to the Committee that the victim’s rights to participate in the parole process are clearly enshrined already in the victims’ code, published again recently. Under the Parole Board’s existing rules, there is a requirement for the Secretary of State to provide the board with a current victim personal statement if one has been prepared, and that must be taken into account by the panel considering the case. The statement sets out the impact that the offence has had on the victim and their family and any concerns that the victim and their family may have about the potential release. Victims are, as part of that, entitled to request that specific licence conditions, including exclusion zones and non-contact requirements, be imposed on the offender. The victims’ code enshrines a number of entitlements relating to parole, including the right to present a victim personal statement in the way that has just been described. A root-and-branch review of the parole system is going on to try to improve these different things further.

As I said, this amendment relates only and specifically to open prison transfers. But I think that the general point that the hon. Member for Rotherham has raised is important. It is important that we do more to ensure that the victim’s voice is heard in these Parole Board decisions, for all the reasons that the hon. Member eloquently laid out. I will suggest that the Under-Secretary of State for Justice, my hon. Friend the Member for Cheltenham, who has the responsibility for this area, meet with the hon. Member for Rotherham to discuss these important issues. The matter is obviously in the rules already: it is in the victims’ code; it is in the Parole Board rules. But clearly, what is written down needs then to translate into action, and the hon. Member has raised a couple of cases in which that did not seem to happen in the way it ought to have done. She has clearly had correspondence with the previous Minister with responsibility for prisons and probation. My hon. Friend the Member for Cheltenham took over that portfolio only three or four months ago. I know he will want to meet her to discuss these important issues and make sure that it is happening in practice as it should do, so I make that commitment on his behalf.

Government amendment 132 to clause 109 makes some simple provisions and creates a mechanism for the Parole Board to change a decision where there has manifestly been an error. This follows a recent court case.

[The Chair]

Minister, can we deal with that when we get to it?

[Chris Philp]

I am sorry; I thought that was part of the same group.

[The Chair]

You have been very generous, so do not regard that as an admonishment. Just temper your keenness to canter on.

[Chris Philp]

I will take that as a check on the reins. I have nothing further to say on amendment 145, Sir Charles.

[Sarah Champion]

I am grateful for the Minister’s comments. I have worked extensively with the Government’s victims team and it is fantastic. The victims code is great, but only if it is implemented. The problem we find is that people are not notified when the offender is coming up for parole consideration, so their rights are not activated because they do not know that that situation is occurring.

I accept his generous offer of meeting the hon. Member for Cheltenham, which I will take up. With that reassurance, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Chris Philp]

I beg to move amendment 132, in clause 109, page 99, line 11, leave out

“resulted from a clear mistake”

and insert

“it would not have given or made but for an error”.

This amendment ensures that the language used in the new provision about when the Parole Board can set aside decisions aligns with a recent High Court judgment which ruled on the circumstances when a Parole Board decision can be revisited and makes a drafting clarification.

I am sorry to have spoiled the anticipation by jumping early. May I speak to clause 109 as well?

[The Chair]

Yes, that is perfectly fine.

[Chris Philp]

Very briefly, clause 109 makes provision for manifest errors in Parole Board release decisions to be corrected. Government amendment 132 implements a recent court judgment where the language was changed and says that reconsideration will happen where there has been

“a clear mistake of law or fact”.

It makes that change following the High Court judgment in the case of Dickins, with which I am sure the Committee is familiar.

[The Chair]

I call the shadow Minister.

[The Chair]

With this it will be convenient to discuss clauses 111 to 114 stand part.

[Chris Philp]

I have relatively little to say on these clauses, which are technical in nature. Clause 110 covers responsibility for setting licence conditions for fixed-term prisoners. Clause 111 repeals some uncommenced provisions dating back many years that have never been used, and simply removes them from the statute book because they have never been commenced. Clause 112 covers the release at the direction of the Parole Board after recall for fixed-term prisoners. Clause 113 is about changing the release test for the release of fixed-term prisoners following recall. Clause 114 covers release at the direction of the Parole Board in relation to timing.

They are technical changes, and I do not propose to add anything beyond these brief remarks, Sir Charles.

Question put and agreed to.

Clause 110 accordingly ordered to stand part of the Bill.

Clauses 111 to 114 ordered to stand part of the Bill.

Clause 115

Extension of driving disqualification where custodial sentence imposed: England and Wales

[Chris Philp]

I beg to move amendment 68, in clause 115, page 104, line 21, at end insert—

“(2A) The amendments made by subsection (2)(a)(i) do not have effect in relation to an offender who—

(a) is sentenced before the coming into force of section 107 (increase in requisite custodial period for certain offenders of particular concern), and

(b) on being sentenced, will be a prisoner to whom section 244A of the Criminal Justice Act 2003 (release on licence of prisoners serving sentence under 278 of the Sentencing Code etc) applies.”.

This amendment ensures that the amendments made by clause 115(2)(a)(i) do not apply to a person who is sentenced between the passing of the Bill (when clause 115 comes into force) and the coming into force of clause 107 two months later and who will be a person to whom section 244A of the Criminal Justice Act 2003 applies.

[The Chair]

With this it will be convenient to discuss clauses 115 to 118 stand part.

[Chris Philp]

Amendment 68 is a technical amendment that introduces a transitional provision that has been identified as necessary to address a short two-month gap before different, but inter-connected, provisions in the Bill come into force. Sir Charles, will I briefly speak to clauses 115 to 118?

[The Chair]

It is absolutely up to you.

[Chris Philp]

Okay. I will not refer to them again, so I will do so.

Clause 115 relates to England and Wales and makes some changes to the driving disqualification provisions where we have changed the automatic release points. Colleagues will recall that we have moved the release point from a half to two thirds for certain offences, including in changes made last year. We want to make sure that, where a driving disqualification is imposed, it takes account of the change in release point. The clause makes simple consequential amendments to those release points.

Clauses 116 and 117 do similar things to make sure that driving disqualifications properly intermesh with the changes to release provisions. Clause 118 does similar things in relation to Scotland.

[Alex Cunningham]

The House briefing paper on the Bill explains that when a driver receives a driving disqualification alongside a custodial sentence, the court must also impose an extension period to ensure that the disqualification period is not entirely spent during the time the offender is in prison. The explanatory notes explain that clause 115 would change the law so that the length of the extension period reflects a succession of other changes made by the Government to the release points for certain offenders.

The notes refer to changes made by the Terrorist Offenders (Restriction of Early Release) Act 2020, the Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2020, changes in the Counter-Terrorism and Sentencing Act 2021 and further changes proposed by this Bill. These pieces of legislation all change the point at which an offender is automatically released or becomes eligible to be released if the Parole Board agrees they are no longer a danger to the public. Rather than being at the halfway point of the sentence, that release point will now move to the two-thirds point.

As I explained at some length in the debate on clause 106, the Opposition cannot wholeheartedly support changes to the release point of certain offenders. Not only do the changes make a notoriously complicated sentencing regime even more complicated but they also substantially limit the amount of time an offender spends on licence in the community, significantly increasing their chances of reoffending.

The Opposition do not support the Government’s logic in adapting other pieces of legislation, in this case driving offences, to reflect those changes. For that reason, we are opposed to clauses 115 to 118 and urge the Government to use caution before committing to any further changes that would further complicate an already overcomplicated sentencing system. That said, I do not intend to press the clauses to a vote, but let the record show that we are opposed to the provisions.

[The Chair]

Minister, would you like to respond?

[Chris Philp]

No.

Amendment agreed to.

Clause 115, as amended, agreed to.

Clauses 116 to 118 ordered to stand part of the Bill.

Clause 119

Calculation of period before release or parole board referral where multiple sentences being served

Question proposed, That the clause stand part of the Bill.

[The Chair]

With this it will be convenient to debate clauses 120 to 123 stand part.

[Chris Philp]

I will speak extremely briefly to clauses 119 to 123. They simply set out minor amendments to existing legislation that part 7, chapter 1 of the Bill makes. In brief, clause 119 provides clarification on when a prisoner must be automatically released and when referral to the Parole Board is required in cases where concurrent or consecutive sentences are being served, so it provides clarification around how those sentences interact with one another.

Clause 120 addresses the application of release provisions to repatriated prisoners, reflecting some recent alterations that have been made domestically, which we have talked about already—making sure that works with repatriated prisoners.

--- Later in debate ---

[Chris Philp]

Let me start with clause 124, which would give responsible officers the power to compel offenders to attend an appointment at any point in a community order or during the supervision period of a suspended sentence, in exceptional circumstances.

The responsible officer is the statutory term for the probation practitioner who is overseeing the order. Section 198 of the Criminal Justice Act 2003 requires the responsible officer to make any arrangements that are necessary in connection with the requirements imposed by the order, and to promote the offender’s compliance with those requirements.

In some cases, the responsible officer might be delivering those requirements directly. In other cases, they might be working with the offender to develop a sentence plan and monitor their progress against it, but referring them to colleagues or to other organisations to deliver particular requirements, for example, educational or treatment requirements.

The current legislation lacks clarity on the extent of a responsible officer’s power to compel an offender, who is subject to a community or suspended sentence order, to attend supervision appointments—meetings, essentially. Offenders serving community sentences have a duty to keep in touch with their responsible officer, and responsible officers also have the power to make any arrangements that are necessary in connection with the requirements imposed by the Order. But it is not currently clear what powers probation officers have if they are concerned about a new or escalated risk that an offender presents, which is not necessarily related to the delivery of what the court has ordered. Hence this measure, which enables the responsible officer to require the offender to participate in a meeting. It simply clarifies that that can happen. I think we all agree that contact between the responsible officer, for example, the probation officer, and the offender is a good thing to make sure that that relationship is being properly managed.

Clause 125 is one of a number of measures in the Bill that seek to strengthen community sentences. In the Sentencing White Paper last September, we set out a new vision for community supervision combining robust punishment and management of risk with a new focus on addressing rehabilitation needs to break the cycle of reoffending. Clause 125 therefore increases the maximum length of time a curfew can be imposed to make it potentially more effective and increases the maximum number of hours that a curfew could be imposed in any given 24-hour period. At the moment, a curfew can be imposed for a maximum of 12 months and we will increase this to up to two years, to give the court a little more flexibility and, we hope, encourage the use of community sentences more often.

The clause will also increase the potential of a curfew to support rehabilitation by providing a longer period during which some of the positive effects of the curfew can be established. It can, for example, reduce interaction with criminal associates. Again, that will hopefully enable the courts to use those sentences more as an alternative to short custodial sentences, which we are all keen to avoid where possible.

At the moment, a community order or suspended sentence order may specify a maximum of 16 hours of curfew per day, which provides in practice a weekly maximum of 112 hours. The clause will increase the daily maximum to 20 hours, but we will not move the seven-day maximum of 112. The number of curfew hours per day can be moved around if, for example, somebody gets a job, or something like that, and that needs to be taken into account, but the weekly maximum does not change. It is important to make the point that we are not altering that.

Clause 126 will give greater powers to the responsible officer to vary electronically monitored curfews on community sentences. Again, we think that will be helpful. To be clear, the responsible officer will not be able to change the number of curfew hours. That is an important point to emphasise.

Clause 127 removes senior attendance centres from the menu of options available. They are not very widely used, and in fact in some parts of the country they are not used at all. These days, there are various other means that are used to provide rehabilitation and so on, rather than senior attendance centres. Schedule 12 contains further amendments relating to the removal of the attendance centre requirements, as I have just described.

Clause 128 simply introduces schedule 13, which makes provision for courts to have powers to review community and suspended sentence orders and commit an offender to custody for breach. Without this clause, schedule 13 would not form part of the Bill. Part 1 of schedule 13 contains provisions relating to the review, which is a crucial element of the problem-solving court approach. As Members know, we are keen to run pilots of problem-solving courts. We think they have an important role to play where offenders have a drug, alcohol or mental health problem, and where the judge can have repeated interaction with the person concerned. We think that could hopefully contribute to the addiction or mental health problem being dealt with. They were piloted in the past—I think they were piloted in Liverpool a few years ago—and they were perhaps not as effective as we had hoped. This pilot is therefore important to try to get the model right. If we can get the model right, we will obviously look to roll it out.

Clause 129 introduces schedule 14. Schedule 14 itself provides the legislative changes required for the problem-solving court pilot that I have just described. We think that problem-solving courts are really important, so the pilots will be important as we have to get the model right. There are lots of different ways of running problem-solving courts. The Americans and the Australians do them differently. We want to get this right. As I say, if we can find a way of tackling the root cause of offending behaviour, whether it is drug addiction, alcohol addiction or mental health, that will help everybody—the community, society and the offender—so I am really pleased that these schedules are in this Bill, laying the groundwork for the things that I have described. I commend these clauses and schedules to the Committee.

[Alex Cunningham]

As the Minister set out, clause 124 provides legal clarity about what a probation officer or responsible officer can instruct an offender who has been released from custody to do. Specifically, it will give probation officers the legal power to compel offenders serving a community or suspended sentence order to attend supervision appointments. Those appointments can be either for the purpose of ensuring the offender complies with rehabilitative requirements or where there are public protection concerns. If an offender refuses to comply with directions made under clause 124, they can be found to be in breach of their licence conditions and punished accordingly.

On the whole, this is a clause that the Opposition can support. If there is legislative uncertainty about what a probation officer can and cannot do, it is important, for the benefit of probation officers and offenders themselves, that it is ironed out. We accept that. The Opposition also accept the importance of offenders attending the appointments they need to rehabilitate and reform in the community. I have spoken at length about how Labour fully appreciates the importance of time spent in the community when it comes to reforming an offender and reducing the risk of reoffending. We are also keen to support amendments that will make the life of probation officers easier by providing legislative clarity.

However, although we are supportive of clause 124, we have some concerns, which I hope the Minister can respond to today. First, given that failing to attend appointments under the clause could result in an offender being found to be in breach of their licence and possibly recalled to prison, can the Minister set out the procedure that offenders can use to challenge orders made under clause 124?

Secondly, we must also consider the impact that the powers in clause 124 could have on offenders who have learning disabilities or are neurodivergent. As the Prison Reform Trust explains:

“People with learning disabilities can find it particularly difficult to comply with measures such as additional appointments or reporting requirements, and so special attention will need to be given to ensuring they are not unfairly disadvantaged by these provisions.”

In addition to addressing the system for offenders to challenge orders under the clause, will Minister set out what safeguards will exist to ensure that no offender is unfairly disadvantaged by clause 124 due to circumstances beyond their control?

I now turn to clause 125, the effect of which is similar to 124. Clause 124 gives probation officers greater powers to compel offenders to attend appointments in the community, and clause 125 gives probation officers greater powers with regard to curfews. Under current legislation, offenders subject to a community order or suspended sentence order can be subject to a curfew for up to 16 hours a day for a maximum of 12 months. Clause 125 would increase the daily curfew to 20 hours and increase the total period over which curfews can be imposed from one year to two years.

The Government set out in the explanatory notes that this change will increase the punitive weight of a curfew requirement, but also has the potential to support rehabilitation by providing a longer period during which some of the positive effects of curfew could be established. As with clause 124, the Opposition are keen to give our hard-working probation officers the tools, powers and legal clarity they need to do their job properly. We are satisfied that clause 125 is a proportionate means of achieving that goal, particularly as the Government have chosen to retain the maximum number of curfew hours that can be imposed per week.

None the less, as with clause 124, we seek some assurances from the Minister about how these extended powers will be used in practice. As with clause 124, our main concern is about the potential of clause 125 to increase the number of offenders found to be in breach of their licence due to circumstances they cannot control, or because of technical breaches. I will discuss one aspect of this in more detail when we come to amendment 122, but we know that offenders are wrongly accused of breaching their licence conditions, including those relating to curfews, due to electronic tags malfunctioning. What assurances can the Minister give that extending the powers of probation officers in this area will not lead to more offenders accused of being in breach due to malfunctioning tags?

I also repeat my concern in relation to clause 124 about how this power could impact offenders who suffer from learning difficulties or are neurodivergent. What steps will the Minister take to ensure that these offenders are not unfairly disadvantaged by clause 125? Will probation officers be given additional discretionary powers to ensure that these offenders are not punished for a breach that they did not intend to make?

Finally, how does the Minister respond to concerns expressed by the Howard League that allowing probation officers to place strict restrictions on leisure days could prevent people on licence from building the positive social relationships that would help them to desist from crime?

Let us move to clause 126, which, like clause 125, extends the power of probation officers in relation to curfews. As the Government explanatory notes point out, currently, changes to a curfew cannot take place unless they have been authorised by a court. Clause 126 would amend the sentencing code by enabling probation officers to vary a curfew requirement made on a community order or suspended sentence order. Specifically, the clause would allow the probation officer or responsible person to change the curfew requirement in one of two ways: changing the time a curfew starts or ends over the course of 24 hours, or changing the residence of the offender as set out in the order.

The explanatory notes suggest that these additional changes will be beneficial not only for probation officers but for Her Majesty’s Courts and Tribunals Service and offenders:

“This legislative change seeks to reduce the burden on the courts, freeing up time for other matters and saving probation resource by reducing the volumes of papers prepared for court and court visits. There will also be advantages for offenders, allowing for variations where typically there are alterations to work hours or location that make compliance impossible, or where an offender’s curfew residence address needs to be changed in a timely way.”

While the Opposition stand firmly behind any proposal to reduce the horrendous burden currently on our courts, I am somewhat perplexed that the Government’s first thought in this area is to give probation officers the power to vary curfew requirements.

As the Minister will no doubt be aware, the backlog in the Crown court is at record levels, sitting at almost 40,000 cases before the pandemic even began. As we said before, victims of rape and other serious offences face a wait of up to four years for their day in court. While it is true that the backlog has been exacerbated by the pandemic, it was created by the Conservatives closing half of all courts in England and Wales between 2010 and 2019, and allowing 27,000 fewer sitting days than in 2016. If the Government were serious about reducing the burden on our courts, they would have adopted Labour’s package of emergency measures during the pandemic, including mass testing in courts, the extension of Nightingale courts and reduced juries until restrictions are lifted, but they did not, and the result is the catastrophe we see today.

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

Chris Philp Excerpts

Committee stage
Tuesday 15th June 2021 Public Bill Committees

[The Chair]

I remind the Committee that with this it will be convenient to discuss the following:

Clauses 125 to 127 stand part.

That schedule 12 be the Twelfth schedule to the Bill.

Clause 128 stand part.

That schedule 13 be the Thirteenth schedule to the Bill.

Clause 129 stand part.

That schedule 14 be the Fourteenth schedule to the Bill.

Before we adjourned, the Opposition spokesman, the hon. Member for Stockton North, gave a lengthy speech, which we were all grateful to hear. We paused to allow the Minister to prepare himself. I believe he is now prepared, so I call the Minister.

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

Thank you, Sir Charles. I trust everyone has had a refreshing and congenial break for lunch. Prior to the break, the shadow Minister raised a number of questions relating to clauses 124 to 128 and to schedules 12 to 14. I will endeavour to answer as many of those questions as I can. He asked what procedure offenders could use to challenge orders made under clauses 124 and 125, particularly to ensure that they were not unduly penalised if they then breached the conditions that had been imposed. If a breach does occur and some serious consequence follows, it is always open to the offender to make a representation when attending their hearing at court to either make the case that the breach was technical or minor in nature, or that the condition itself was not varied in a reasonable way. A significant penalty can never be imposed without the intervention of the court.

Questions were asked about circumstances beyond the control of the offender. We heard about the possibility of a device malfunctioning and about particular circumstances relating to disability that might disadvantage certain people. We envisage the power laid out in section 124 being used only in rare circumstances, certainly not routinely.

I confirm that it is the intention to provide clear advice to probation staff, setting out the rare circumstances in which additional supervision may be warranted, to ensure, for example, that disabled offenders are not unfairly or unduly disadvantaged, and to avoid the purpose of these supervision appointments going beyond the very specific purposes that the order has been imposed by the sentencing court.

The same applies to people with learning difficulties. Courts sentence on a case-by-case basis and, where electronic monitoring has been imposed as one element of that sentence, the officer supervising the offender is already able to review notifications of apparent violations and take a reasonable view, on a case-by-case basis. If someone has been genuinely unable to understand how to operate the equipment or had a genuine technical problem, we would expect probation officers to exercise reasonable discretion.

As I said at the very beginning, if a breach did follow and the court was invited to impose some penalty, it would be open to the offender to make a representation at that point to explain the mitigating circumstances. My expectation is that it would never get that far, because I would expect the supervising officer to be reasonable in the meantime.

[Alex Cunningham (Stockton North) (Lab)]

I recognise what the Minister is saying. I raised the point that people should be able to make representations after their hearings, but some of the people we are talking about have particular challenges in life and special needs. How will the Minister ensure that their problem—their malfunctioning equipment or otherwise—is properly communicated to a court to ensure that they are not penalised?

[Chris Philp]

Clearly, in the first instance we would expect the responsible officer to exercise these powers in a reasonable way and to exercise discretion. Hopefully, as I said a few minutes ago, these cases would not get as far as court because the probation officer would act in a reasonable and proportionate way in the first place. The guidance will reflect that. If someone does get to court, there is the possibility of their being represented in proceedings. However, I also would expect the judge to ask a reasonable question of the person appearing before the court, such as whether there were any mitigating circumstances or technical problems or whether they had failed to understand how to operate the equipment. If there is a vulnerability, the pre-sentence report written prior to the original sentencing would be expected to pick up those issues.

The shadow Minister asked whether the powers in clause 126 were too wide and gave the responsible officer excessive latitude and leeway to vary curfew requirements that a court had previously imposed—to dispense summary justice without proper reference to the courts. To be clear, clause 126 is very limited in the powers that it provides probation officers, and they will be able to amend the requirement in only two limited ways, and only if those changes do not undermine the weight or purpose of the requirement imposed by the court. The power in clause 126 is restricted to two areas: a shift in the start and/or end times of the curfew periods—but no change to the total number of hours imposed—and a change to the offender’s curfew address, where the address was not part of the order in the first place. So they are very limited powers to vary, which I hope provides the reassurance asked for.

The hon. Member for Garston and Halewood, who unfortunately is not in her place, referred to the problem-solving courts in Liverpool. I understand that the results from that have been a little mixed, but we are committed on both sides of the House to the principle of problem-solving courts, and I noted the shadow Minister’s recitation of the history of these going back as far as 1999. Both sides recognise the important role that problem-solving courts can play. Other jurisdictions have used them, with the United States being an obvious example. We are starting on a pilot basis rather than a big-bang roll-out because the details of how the model operates is important. The details make a big difference, and the design of the way it works—when the reviews takes place, what they are reviewing and what actions are taken—make a difference to whether the thing is successful or not.

While across the House we are committed to the principle of problem-solving courts to tackle the underlying causes of offending, we have to make sure that they work in practice and the details are right before rolling them out. To answer another of the shadow Minister’s questions, I am sure we will be coming back to Parliament and reporting on the progress of these problem-solving courts. My hope is that we find a way quickly to make these work in practice and can then roll them out. I am committed to community sentence treatment requirements, which are a form of disposal that provides for mental health, alcohol and drug addiction treatment. Quite a lot of money has gone into that recently—£80 million for drug addiction earlier this year. Problem-solving courts are a critical way of supporting the delivery of treatment under community sentence treatment requirements. It is something I want to push, and I am glad that there is agreement across the House on that.

The final question that the shadow Minister asked was whether a guilty plea was needed to qualify for an appearance before a problem-solving court. Problem-solving courts do not require a guilty plea, and this Bill does not stipulate that as a prerequisite, but a willingness to engage with the court and comply with the community interventions will be an important factor. The problem-solving courts working group in 2016 considered making a guilty plea a key factor in creating the engagement necessary, but we recognised the number of complexities across the cohorts targeted, and did not think it was necessarily required. People who plead not guilty, and are then convicted, would be eligible for the problem-solving court, and I hope they can be helped as much as anyone else. On that basis, I commend these provisions to the Committee.

Question put and agreed to.

Clause 124 accordingly ordered to stand part of the Bill.

Clauses 125 to 127 ordered to stand part of the Bill.

Schedule 12 agreed to.

Clause 128 ordered to stand part of the Bill.

Schedule 13 agreed to.

Clause 129 ordered to stand part of the Bill.

Schedule 14 agreed to.

Clause 130

Duty to consult on unpaid work requirements

Question proposed, That the clause stand part of the Bill.

[The Chair]

Would you like to say a few words on this, Minister?

[Chris Philp]

I will follow your direction, Sir Charles, by saying just a few words on this clause, which is relatively straightforward and, I think, pretty inoffensive.

Clause 130 simply creates a requirement for probation officials to consult key local and regional stakeholders on the delivery of unpaid work. Unpaid work—or community payback, as it is sometimes known—combines the sentencing purposes of punishment with reparation to communities. We believe that, where possible, unpaid work requirements should benefit the local communities in which they are carried out. Nominated local projects are already popular with sentencers and the public, but there is currently no requirement for probation officials to consult stakeholders on the design or delivery of unpaid work, so members of communities and organisations within particular local areas that are best placed to understand the impact of crime and what might be useful in the local area do not necessarily have their say.

Clause 130 simply seeks to address the gap by ensuring that key local stakeholders are consulted, so that they can suggest to the probation service what kind of unpaid work might be useful in their local area. We hope that local community groups and stakeholders come up with some good ideas that the probation service can then respond to. That seems to be a pretty sensible idea. The probation service in some areas may do it already. This clause simply creates a proper duty, or a requirement, for the probation service to do it. Of course, if we understand the needs of local communities and their thoughts, we can improve the way unpaid work placements operate to support rehabilitation and also help the local community. If the local community can visibly see offenders doing unpaid work in their local area, whether it is cleaning off graffiti, cleaning the place up or whatever else it may be, that will, we hope, demonstrate that the programme is giving back to and improving the local community, but delivering a punitive element as well.

[Sarah Champion (Rotherham) (Lab)]

Will the Minister give way?

[Chris Philp]

I was about to conclude, but of course I will take the intervention.

[Sarah Champion]

When I used to run a children’s hospice, we had offenders under probation supervision come in. They were meant to be doing gardening at the children’s hospice, but instead they sat around smoking cigarettes. We kept on raising that with the probation worker, because we had invited the offenders there to give them a second chance, to help with their rehabilitation, to enable them to contribute to the community and so on. But the probation officer said, “What do you want me to do? I can’t beat them; I can’t make them work, but they have to come on these schemes.” Could the Minister give some examples of how the probation service will have the resources and the influence to ensure that people who are out in their local community are actually—

[Sarah Champion]

I apologise, Sir Charles.

[Chris Philp]

The hon. Lady makes a very good point. First, I am extremely disappointed and somewhat shocked to hear that people who were supposed to be doing work at a hospice in Rotherham in fact sat around smoking cigarettes. That is obviously shocking and not what the orders are supposed to be about. The hon. Lady says that the probation officer shrugged their shoulders and said, “Well, what can I do about it?” Of course, if the person, the offender, was not doing the work that they were supposed to be doing, that would amount to a breach of the unpaid work requirement, and they could be taken back to court to account for their breach, so I am extremely disappointed by the attitude of the probation officer that the hon. Lady just described.

The hon. Lady asked about resources. Extra resources are going into the probation service for it to supervise exactly these kinds of activities, and I would expect them to be supervised and policed properly. I will certainly pass on her concern to the relevant Minister. I have already made contact about fixing a meeting for the hon. Lady and the Prisons Minister that we talked about in this morning’s session, in relation to victims being consulted about probable decisions. The same Minister, my hon. Friend the Under-Secretary of State for Justice, is responsible for the probation service as well—I am just adding to his workload. I will raise it with him, but I would certainly urge the hon. Member for Rotherham to raise this issue in the same meeting, because I know that the account she just gave will concern my hon. Friend as much as it concerns me.

[Mr Robert Goodwill (Scarborough and Whitby) (Con)]

I echo the points made by the hon. Member for Rotherham in that there is a variation in the enthusiasm that some of those who conduct this work display, on both sides. I was told, for example, that a lad who came from a farming family had thrown his back into it very strongly and was encouraging others to join him. I would add that we do consult with the local community, and many of the jobs that are done in my constituency are at the behest of either a local authority or other local groups.

[Chris Philp]

Wonderful. We would like to see the kind of consultation that already takes place in Scarborough and Whitby take place across the country as a whole, and that is precisely the intention behind clause 130. Where Scarborough has led, the rest of the nation, thanks to this clause, will follow.

Question put and agreed to.

Clause 130 accordingly ordered to stand part of the Bill.

Clause 131

Youth Remand

[Alex Cunningham]

I beg to move amendment 128, in clause 131, page 122, line 12, at end insert—

“(ba) after subsection (5) insert—

(5A) For the purposes of subsections (5) and (6) “recent” is defined as having occurred in the previous six weeks.””

[Alex Cunningham]

I am pleased to speak to amendments 128, 129 and 130 in the name of my hon. Friend the Member for Rotherham and myself. However, before I do that, if the Minister could give me a list of where he has influence, perhaps he could fix a few meetings with Ministers for me as well.

[Chris Philp]

Any time.

[Alex Cunningham]

I thank the Minister very much for that—it will, of course, be on the record, which I am very pleased to note. Before I get into my speech, I would like to thank Transform Justice and the Alliance for Youth Justice for the extremely helpful work they have done on this part of the Bill. I also thank my hon. Friend the Member for Hove (Peter Kyle), the former shadow Justice Minister, who worked extremely hard on these particular issues. I am grateful to him.

Clause 131 amends the legislative threshold for remanding a child to custody. It will mean that remand to youth detention accommodation can be imposed only in the most serious cases, where a custodial sentence is the only option and the risk posed by the child cannot be safely managed within the community. It will introduce a statutory duty which states that courts must consider the interests and welfare of the child before deciding whether to remand them to youth detention. It also imposes a statutory requirement for the courts to record the reasons for the decision.

First, let me say that we are pleased with the direction of travel that this clause indicates, and we are keen for the Government’s work in this area to succeed. We are in complete agreement with the Government that custodial remand should be used only as a last resort for children. However, we do think that there is scope for these proposals to go further in tightening the threshold for remanding a child into custody. I will speak more on that when we discuss our amendments.

The current youth remand provisions were introduced in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and I well remember the Public Bill Committee, where I had the privilege of serving as Parliamentary Private Secretary to Sadiq Khan, now our excellent Mayor of London, and also my good friend. By 2019, the independent inquiry into child sexual abuse noted a significant increase in the use of custodial remand for children. The Opposition warmly welcomes measures which aim to reduce the number of children remanded into custody, especially in light of the fact that in 2018/19 only a third of children remanded to custody or local authority accommodation later received a custodial sentence.

Our concerns about the use of custodial remands for children are compounded by the extreme racial disproportionality on remand, and the record proportion of children in custody who have not yet been tried in court.

Against the backdrop of the record court backlog and the waiting times for trial, there could not be a more opportune moment to address these issues. We particularly welcome the introduction of the statutory duty to consider the welfare and best interests of the child. We believe that, while these proposals can go further—I know that the Minister will listen carefully to our proposals shortly—these changes will help to reduce the number of children who are unnecessarily remanded to custody, so we are pleased to support them.



However, there are a couple of points on which I would welcome the Minister’s thoughts. Has he any further information to share with the Committee on his Department’s considerations of the impact that police remand has on custodial remand? Are there any plans to address that? Research by Transform Justice shows that police remand, where the child is detained by the police until court either in a police cell or in a local authority PACE bed—under the Police and Criminal Evidence Act 1984—is a driver of custodial remand. Transform Justice explains that point:

“This is because any child remanded by the police has to be presented in court within 24 hours, meaning Youth Offending Team staff often don’t have enough time to develop a bail package that will satisfy the court. Children who appear from police custody also usually appear in the secure dock, which can bias courts to view the child as more ‘dangerous’ and therefore more suitable for custodial remand.”

The criteria for police remand are spelled out in section 38 of the Police and Criminal Evidence Act and are very different from those used by the court for remand. In fact, the criteria for police remand of children are almost identical to those for adults, unlike the child-first approach taken in so many other areas of the justice system.

We know that the police remand more children than the courts. Of the 4,500 children who appeared in court from police custody in 2019, only 12% went on to be remanded by the court. Some 31% of those remanded by the police went on to be discharged, dismissed or have their case withdrawn, while 37% went on to get a fine or community sentence. The figures illustrate that police use of remand is seriously out of synch with the courts already. This clause may further widen that gap.

Is the Minister not concerned that the police may continue to overuse post-charge detention, undermining the positive efforts of the clause to reduce unnecessary custodial remand for children? Will the Government consider updating the police remand criteria, so they are in line with the new court remand criteria, to ensure consistent decision making across the whole criminal justice system?

I am greatly supportive of the provision in the clause that requires courts to record their reasons for remanding a child, not least because it will provide valuable data on the use of remand, which will enable us to continue to make improvements in this area. For that to be most effective in informing future policy decisions, we would need to have some sort of centralised monitoring system. Will we have such a system? It would mean that the need to record reasons would not only focus the mind of the court in a specific case; it would also benefit the system as a whole, as each case can inform our ongoing learning process about the use of remand and its effectiveness. Has the Minister considered the possibility of such a centralised monitoring system?

It has been suggested that the obligation on the court to record reasons would be most effective if courts had to specify why non-custodial alternatives were deemed unsuitable and how each of the custodial remand conditions has been met. Is that the kind of detail that the Minister envisages the obligation should entail? I am sure we all agree that it would be helpful for that level of information to be provided, so I am interested to hear the Minister’s thoughts.

Turning to the amendments, as I said earlier, the reforms to the threshold for remanding a child in custody are welcome, but there are a couple of areas where we believe they should go further. The Opposition amendments, if adopted, would get us closer to the goal of custodial remand being used only as a truly last resort.

Amendment 128 seeks to tighten the history test by defining a recent history of breaching bail or offending while on bail as having been committed within the last six weeks. The clause currently makes provision to amend the history condition so that the previous instances of breach or offending while on bail must be “significant”, “relevant” and “recent”. In order to reduce the number of children held unnecessarily on remand, it would be helpful to amend the clause so that there is a clear definition of “recent”.

In defining recent, we have to be mindful of what that means to a child. As the Alliance for Youth Justice notes:

“If we are to take a child-centred approach, we must consider how children experience time, and recognise the well-established principle that children change and develop in a shorter time than adults.”

The Youth Justice Board for England and Wales has recommended that “recent” be no longer than within a six-week period. I hope that the Minister will agree that clarity on that point would be of great assistance to the courts. I would be interested to hear from him what discussions his Ministry of Justice colleagues have had regarding defining a time limit for this condition.

Amendment 129 is a straightforward amendment to the necessity condition that would again help achieve the aim of using custodial remand for children only as a last resort. Although we welcome the strengthened wording of the necessity condition included in the Bill, which would require remand to be used only when the risk posed by a child cannot be safely managed in the community, we share the concerns of the sector that the benefits arising from this change may be undermined by its drafting. The amendment would therefore tighten and strengthen the wording. Transform Justice says that these benefits of the current proposed change to the necessity condition

“will be undermined by the loose wording of one of the other necessity conditions: that remand to YDA is necessary to prevent further imprisonable offences. This condition is highly subjective and casts a wide net, which may be widened further by youth sentencing provisions elsewhere in the bill.”

We share the concern expressed by the Alliance for Youth Justice that

“the latter part of the condition (to prevent the commission of an imprisonable offence) sets such a low threshold for meeting the Condition as to render the first threshold (to protect the public from death or serious personal injury) somewhat redundant.”

The amendment would tighten the latter part of the condition by ensuring that it applies only to serious imprisonable offences, which we think better reflects the intention of the clause.

Finally, amendment 130 would compel the court to record the age, gender and ethnicity of a child remanded in custody in order to provide better data on remand, particularly on disproportionality. We believe that this could be a helpful tool in addressing the deeply concerning and increasing levels of disproportionality at this point in our justice system. The numbers beggar belief. Nine out of 10 London children who are remanded are from black, Asian and minority ethnic communities. A deeply comprehensive report that was published by the Youth Justice Board in January shows that race alone is a factor in remand outcomes for children. The researchers gathered data on thousands of English and Welsh cases, and information provided in practitioner assessments. Even when other related factors were controlled for mixed ethnicity black children, they were, as the Youth Justice Board notes,

“still more likely to be remanded in custody and, if not remanded, more likely to be subject to restrictions on bail.”

This is a serious injustice in our system that needs to be urgently addressed. More needs to be done than this amendment makes provision for, but it would be a helpful tool in breaking down the disproportionate outcomes that we are seeing. The amendment would at the very least provide accurate data to help understand this disparity, in line with the “explain or reform” principle outlined in the Lammy review, which I think is an eminently sensible step in the right direction. I hope that the Minister agrees and look forward to hearing his thoughts. I would also be grateful if he could share with the Committee any other initiatives his Department is working on to address this flagrant disproportionality in youth remand.

--- Later in debate ---

We have to be aware that, under successive Tory Governments, youth services budgets have been cut by 73%, which is nearly a £1 billion since 2010, and we have to consider the impact that is having, particularly in my area of Rotherham, where the early interventions that could put children on the right path to a successful future are just not there any more. Now, rather than preventing the crime, we are looking at heavy-handed ways to punish it. I urge the Minister to speak to us and consider what his Government are doing to address those early intervention gaps to make sure that the measures in this legislation apply only in exceptional circumstances.

[Chris Philp]

As the shadow Minister said, clause 131 aims to ensure that children are remanded into youth detention accommodation only where absolutely necessary and as a last resort. As the hon. Member for Rotherham and the shadow Minister said, that is something that we can all agree on. We do not want to remand children into custody prior to conviction unless it is absolutely necessary.

The hon. Member for Rotherham said that prevention was important, and of course we agree, although it is outside the scope of these clauses. Money is being invested, significantly, in serious violence reduction units that aim to prevent, but also to divert young people who might otherwise get into serious crime on to a better path.

We are mindful that over a third of children in custody are on remand and that, of those, only around a third go on to receive a custodial sentence. While custodial remand is perfectly justified in some cases, the threshold for confining an unconvicted child to a secure environment must, rightly, be set very high indeed. It sounds like we broadly agree on these principles, and that is why we are amending the provisions of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which sets out the test that the courts must satisfy when deciding whether to remand a child into custody. I think everyone agrees with the aim of the clause, which is to make sure that remand custody for a child is an absolute last resort. The shadow Minister welcomed this direction of travel and the steps that are being taken.

The clause introduces a statutory duty for the court to consider the welfare and best interests of the child when making remand decisions and a statutory requirement for the court to record its reasons for imposing custodial remand to ensure that the welfare of the child is at the forefront of the court’s mind and promote a child-first approach to decision making. We are also strengthening the sentencing condition to ensure that the mere possibility of a custodial sentence would not on its own necessarily warrant custodial remand. Similarly, a relatively minor or fairly recent breach should not, on its own, justify remand. We are reinforcing the history condition so that only a recent, significant and relevant history of breaching while on bail should be taken into account to justify custodial remand. The current tests already require the court to satisfy itself that a child can be remanded to custody only where it is necessary to protect the public from death or serious harm. We are reinforcing that necessity condition by making it clear that it means when the risk posed by the child cannot be managed safely in the community. These measures, taken together, significantly elevate and strengthen the test for child remand to custody.

[Alex Cunningham]

Will the Minister confirm whether there is likely to be some form of time limit relating to the recent history of the child?

[Chris Philp]

The shadow Minister leads me to his amendment 128, to which I was going to speak in a moment, but I shall address it now as he has raised it. There will not be a hard or specific time limit in the way that his amendment specifies six weeks. We think that a hard-edged limit of six weeks specified so precisely would unduly fetter judicial discretion. The judge should be able to make a judgment in the round, taking into account all the considerations. A hard cut-off of six weeks is too binary. It is made clear that the judge needs only to look at circumstances where there is a history of breach or offending while on bail that is recent, significant and relevant. That is quite a high test, but we do not propose to go as far as amendment 128 does in specifying six weeks. We do not support the amendment for that reason, although, in spirit, our clause as drafted is pushing in a very similar direction. We just think that six weeks is too precise and that the judge should have some residual discretion.

Before moving to amendments 129 and 130, I would like to touch on a question that the shadow Minister raised about whether police remand almost inevitably and inappropriately leads to custodial remand. He said that could be because there is not enough time to consider bail arrangements and that it could create a sense of bias because, if the judge sees the person in the dock, it may lead them to believe that they are a more serious offender. I do not accept either argument. The statistics that he himself gave a minute or two later support that. He said that only 12% of children going into police remand end up in custodial remand. That demonstrates that 88% of children on police remand do not go into custodial remand, which suggests that there is not a strong linkage in the way that he feared there might be.

[Alex Cunningham]

We need some clarity around the 12% and the 88%. My point is that the police are remanding into custody a very high proportion of children who do not then go on to receive a custodial sentence. That is the problem, not the other way round.

[Chris Philp]

I think that the shadow Minister also pointed out to the Committee that there is a 24-hour time limit on police remand for children, so it is an extremely short period of time. For that very short window before the court appearance, it ensures that the police do not lose control of the person in their care. Clearly, if that was going on for days or weeks, it would be a matter of concern, but it is a very short time window, as he said.

The shadow Minister’s amendment 129, on the necessity condition, proposes the insertion of the single word “serious”. I contend that any imprisonable offence is in itself serious but, more broadly, we are again relying on judicial discretion. We do not want to unduly fetter the judge’s discretion. The provisions in clause 131 as drafted will send a fairly clear signal to the judiciary that this is something that should be taken very seriously in making these decisions and that Parliament does not want children remanded to custody lightly or inappropriately. The clause as drafted makes that pretty clear. It also makes it clear that not only do the conditions that we have talked about have to be met but, in the opinion of the court, the risk posed cannot be managed safely in the community. Clause 131 as drafted sends a very clear message that custodial remand should indeed be a last resort.

Amendment 130, proposed by the shadow Minister, would require the court to state in open court the age, sex and ethnicity of a child remanded to custody. In all honesty, we believe that the amendment is unnecessary because the data is already collected and published, so the information is there already. The important point about the new record being created is that the reasons for custodial remand have to be spelt out expressly to ensure that the court is properly considering those things. We can then be absolutely assured that the court has to consider those matters and record them so that they are there to look at subsequently and be reviewed, not forgotten in the rush of a court appearance. The substance is captured already by the requirements in clause 131. It seems that both sides of the Committee broadly agree on this, so I do not think that amendments 128 to 130 are particularly necessary, although I do understand the spirit in which they are moved.

[Alex Cunningham]

I am grateful to the Minister for his response. I am prepared to withdraw amendment 128, given his explanation, but I ask that he look seriously at time limits, whether in some form of guidance from the Department or otherwise.

On police remand, I am still very concerned that the police are far, far more likely to remand a child in custody than a court is. I ask that the Minister think again and review the advice given to police officers to try to reduce the number of children who are automatically remanded to custody. I am content with the Minister’s explanation on amendment 129 and I will not press it.

When it comes to data, as the Minister will know because I assume that he signs them all off, I get lots of answers to written parliamentary questions saying that the information cannot be provided because it is not available or it can be provided only at disproportionate cost. If we do not gather the data, I will get more of those answers from the Minister, so I intend to press amendment 130. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: 130, in clause 131, page 123, line 3, at end insert—

“(aa) after subsection (4)(b) insert—

“(c) state in open court the age, gender and ethnicity of the child.””––[Alex Cunningham.]

Question put, That the amendment be made.

--- Later in debate ---

[Chris Philp]

We want a youth justice system that recognises the unique needs of children, tackles the underlying reasons why children offend and intervenes early to provide support and divert them where possible. There is a distinct and separate sentencing framework for children aged 10 to 17, which recognises that children have their own specific needs that require a different and tailored approach.

The clauses and schedule amend existing legislation to enable us to make the necessary changes to the most common youth custodial sentence, the detention and training order, or DTO. The changes are to make the DTO more flexible, fairer and more in line with other youth custodial sentences.

In that spirit, clause 132 amends the sentencing code to remove the fixed lengths of the DTO, meaning that any length of DTO between four months and 12 months can be given. The court can pass the right sentence instead of being constrained to give only sentences of DTOs of four, six, eight, 10, 12, 18 or 24 months. Removing those very fixed lengths does not change the maximum or minimum sentence but just means that any length of sentence can be given between the limits of four and 24 months. Removing the fixed lengths also means that the reductions made for time spent on remand that we have just been talking about, or bail, which is subject to a qualifying curfew condition and an electronic monitoring condition, and for a guilty plea, will be more accurate. At the moment, there is not always a DTO length that directly fits once remand, bail or guilty pleas have been considered, and the court must instead refer the sentence to one of the fixed lengths of four, six, eight, 10, 12, 18 or 24 months. With the proposed changes, the court may go between those sentence lengths, if it needs to, to fit in with the reductions for time spent on remand and so on. It is a fairly straightforward change, which makes a great deal of sense.

Clause 133 amends the sentencing code and the Criminal Justice Act 2003 to fix a current inconsistency in relation to early release. That inconsistency means that different lengths of early release are available for offenders sentenced consecutively to a DTO and another sentence, depending on the order in which they receive those sentences. The change means that where an offender is serving a DTO and another sentence consecutively, the offender may benefit from the same amount of early release, regardless of the order in which sentences are given. I think that is a fairly innocuous and sensible technical change to the 2003 Act.

Clause 134 introduces schedule 15, and that schedule amends the 2003 Act and the sentencing code, so that time spent on remand and bail, where that bail is subject to a qualifying curfew condition and an electronic monitoring condition—a tag—is counted as time served and credited accurately against the custodial part of the DTO. That is a change to the current approach, where time on remand or bail is taken into account when determining the length of the DTO, rather than being credited as time served. The schedule also makes further amendments where an offender is given two or more sentences, of which one is a DTO. Those sentences are treated as being a single term for the purposes of crediting the days spent on remand or bail. The schedule also makes changes to the Armed Forces Act 2006 to make sure that there is consistency.

Those are relatively technical and, I hope, relatively straightforward changes.

[Alex Cunningham]

We all recognise that DTOs are the most common custodial sentence for children. Between 2010 and 2019, 20,000 offenders under the age of 18 were sentenced to a DTO. It is important that we get this right. We are tentatively supportive of the proposals in the clauses, and I look forward to the Minister’s response, which will I hope will be able to allay some of our concerns.

As the Minister has outlined, DTOs currently have to be of a fixed length. I have some sympathy with the Government’s view that having such fixed periods restricts the courts in deciding the most appropriate length of sentences. Clause 132 will address that by removing the fixed length and providing that a DTO must be for at least four months and no longer than 24 months. We agree with the Government that is important that the minimum period for a DTO is retained to ensure that extremely short, unhelpful and, indeed, counterproductive custodial terms are not given out.

I do wonder, however, whether four months is still too short, and I question the real benefits of such a short sentence. Clause 133 provides that where an offender is given two or more sentences, one of which is a DTO, those sentences are to be treated as a single term for the purposes of crediting days spent in custody, or in qualifying for bail. The explanatory notes state that this clause is intended to

“fix an existing discrepancy in relation to early release which meant that different lengths of early release were available for offenders sentenced to a DTO and another sentence consecutively, depending on the order in which they received those sentences.”

The clause aims to ensure that

“where an offender is serving a DTO and another sentence consecutively, the offender is able to benefit from the same amount of early release regardless of the order in which the sentences are given.”

Clause 134 and schedule 15 provide that time spent on remand or bail subject to a qualifying curfew condition and an electronic monitoring condition is counted as time served and credited against the custodial part of the DTO.

Taken together, the clauses increase the flexibility in the system for sentencers and should mean that the sentence length can accurately account for remand episodes already served, electronically monitored bail or a guilty plea, rather than nearest permissible length based on the fixed tariffs that currently exist.

I note that the Youth Justice Board for England and Wales broadly welcomes these proposals as well. It notes that the changes may help to solve the issue whereby the fixed lengths of the DTO sentences held the potential to create a barrier to resettlement—for example, where a fixed sentence length would mean that a child would be released just after September and therefore miss out on the intake of a new school or college year. In this instance, the fixed terms would push children out of education for longer than necessary. The more flexible approach proposed here by the Government can help to address such issues.

On the face of it, these reforms seem sensible, and like something we would support. However, the impact assessment contains some concerning projections, on which I would welcome the Minister’s thoughts. The impact assessment notes an unfortunate adverse impact of removing the fixed-term nature of DTOs, in that individuals who receive early guilty plea discounts under the current system may receive longer sentences than they currently do. While there will be no additional children sentenced to DTOs under this option, the Youth Justice Board has said that it anticipates that the increase in average sentence length may lead to a steady-state increase in the youth custody population of around 30 to 50 places, costing around £5.3 million to £8.5 million per year. It has said that there would also be an equivalent uplift in the number of children supervised in the community at any one time at a cost of around £0.4 million to £0.6 million a year.

The Government’s impact assessment predicts that the proposals will increase the steady-state number of children in custody by up to 50 children by 2023-24, costing the youth custody service between £38.6 million and £61.4 million. That is of very serious concern to the Opposition. We share the Government’s stated vision of reducing the number of children in custody, and there has been great progress in that area over the past decade. The number of children in custody has decreased by about 75%, for which the Government ought to be applauded. It would be a terrible shame if we were to roll back any of the progress that has been made in this area, especially as I know how proud the Justice Secretary is of the work that has been done.

I would be grateful for the Minister’s thoughts on how these proposals can be introduced without increasing the number of children in custody. Let us remember that it is the Youth Justice Board that is saying this will happen. Does the Department intend to introduce any safeguards in this area? The Opposition would like safeguards to be put in place to help to avoid the possibility of children spending longer than necessary in custody, which could also mean an increase in the number of children in a secure establishment at any one time.

I would also welcome a reassurance from the Minister on a further point raised by the Youth Justice Board in its briefing. It notes that the impact assessment states:

“Time spent on remand will be taken away from time to serve in custody as opposed to from the overall sentence length. There will be some individuals that spend longer on supervision in the community under this option, which would incur additional YOT costs. It has not proved possible to quantify these additional costs.”

We recognise that it might be beneficial for children to spend longer with the support of the youth offending team as opposed to being in custody, but there is of course an attendant impact on youth offending team budgets, which are already stretched. The Youth Justice Board says:

“Some children may spend longer on the community part of the order which gives youth offending teams more time to work with them but there is no evidence to support this as a benefit.”

The Youth Justice Board also notes that a cost-benefit analysis of these proposals, in terms of the additional spend for youth offending teams, would be helpful. Will the Minister provide such a cost-benefit analysis? Will he also confirm whether youth offending teams will be provided with appropriate further resource to handle any increased workload as a result of these proposals?

[Chris Philp]

I am glad that the shadow Minister welcomes the broad thrust of these changes. That is very welcome indeed. In response to his questions about the impact assessment, it is important to say that it makes it clear on the second page that

“there will be no additional children sentenced to DTOs”.

The question therefore arises: why, then, will there be this very slight increase in the population, of between 30 and 50 places? The reason, as far as I can see, is that where the DTO sentence length falls between the two fixed points, at the moment it gets rounded down to the lower of the two, whereas under these proposals it can be calculated precisely. No additional people will be subject to a DTO; however, we will no longer have this rounding-down effect. In a sense, when we account for the time served and so on, and particularly the early plea discount, at the moment there is an inappropriate rounding down, because of the fixed points, which will now be eliminated. The time served will therefore better reflect the law and the court’s intention, and that will lead to a very slight increase in the number of people subject to these orders at any given point. However, the total number receiving the order will not change.

[Alex Cunningham]

I accept that the total number receiving the orders will not change, but does the Minister not accept, and regret, that these proposals will lead to some children—it might only be a handful—being subjected to more time in custody than they would be under the current system? If he does accept that, what will he do to try to change it?

[Chris Philp]

It is more that, owing to an anomaly in the current system that is a consequence of the fixed points, people are being let out slightly early. This change really means, among other things, that the law as written can be fully implemented, rather than this little rounding anomaly occurring. However, I stress that the effect is very slight.

[Alex Cunningham]

One child is too many.

[Chris Philp]

By the way, I should take this opportunity to thank the shadow Minister for his earlier commendation of the Government’s record on reducing unnecessary child imprisonment.

In answer to the shadow Minister’s last question, which was about youth offending teams and longer time potentially being spent under their care, clearly it is our hope and expectation that youth offending teams will be effective—indeed, they are effective—in helping to divert young people on to a better path in life. We are generally increasing resources in this area, and I hope that that will have precisely that effect.

Question put and agreed to.

Clause 132 accordingly ordered to stand part of the Bill.

Clauses 133 and 134 ordered to stand part of the Bill.

Schedule 15 agreed to.

Clause 135

Youth rehabilitation orders

Question proposed, That the clause stand part of the Bill.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 122, in schedule 16, page 255, line 26, at end insert—

“(2A)After sub-paragraph 4(1) (Duty to give warning or lay information relating to breach of order), insert—

“4 (1A) For the purposes of this paragraph, a reasonable excuse for breach of an electronic compliance monitoring requirement shall include design faults in any necessary electronic apparatus, including (but not limited to) poor battery life; but shall not include intentional failure by the offender to charge necessary electronic apparatus.””

This amendment would introduce a safeguard to prevent children from being criminalised due to design faults, including poor battery life, on electronic monitoring devices.

Amendment 120, in schedule 16, page 258, line 34, at end insert—

“24(1) Paragraph 35 of Schedule 1 (Further provisions about youth rehabilitation orders) of the Criminal Justice and Immigration Act 2008 is amended as follows.

(2) In sub-paragraph (1), for “The Secretary of State may by order” substitute “The Secretary of State must by order”.

(3) In sub-sub-paragraph (1)(a), omit “enable or”.”

This amendment would make panel reviews of youth rehabilitation orders routine by amending Paragraph 35, Schedule 1 of the Criminal Justice and Immigration Act 2008.

Amendment 121, in schedule 16, page 258, line 34, at end insert—

“24(1) Paragraph 3 of Schedule 1 (Further provisions about youth rehabilitation orders) of the Criminal Justice and Immigration Act 2008 is amended as follows.

(2) At end insert—

“(6) The Secretary of State shall take steps to ensure that there are sufficient resources in place to allow for a court to make a youth rehabilitation order with intensive supervision and surveillance in all appropriate cases.””

This amendment would require the Secretary of State to ensure that intensive supervision and surveillance is available in all youth offending areas.

That schedule 16 be the Sixteenth schedule to the Bill.

I call the Minister.

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I look forward to the Minister’s response.

[Chris Philp]

As we have said previously, and as I think the Opposition would agree, we believe that, wherever possible, children who offend should be managed in the community, as it is better for their rehabilitation and therefore wider society, as it is less likely that they will reoffend. In that spirit, clause 135 introduces and refers to schedule 16, which makes amendments to YRO provisions set out in the Criminal Justice and Immigration Act 2008 and in the sentencing code, which we believe will give the courts and the public confidence in YROs as an alternative to custody. The amendments are listed in schedule 16 and include the introduction of a new electronic whereabouts monitoring requirement and changes to the YRO with intensive supervision and surveillance, ISS, a high-intensity alternative to custody, with mandatory extended activities, supervision and curfew requirements.

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[The Chair]

Before we move on, it has come to my attention, courtesy of the Whips, that there will be a vote in the House at 4.30 pm. I am sure that none of you want to come back afterwards. It is up to you if you do, but I thought I would bring the Whips’ discussion to a wider audience, so we know what their ambition is for the Committee.

Clause 136

Abolition of reparation orders

Question proposed, That the clause stand part of the Bill.

[Chris Philp]

Given your suggestion, Sir Charles, I will place a premium on brevity. Clause 136 is straightforward. We believe that restorative justice is an important part of the justice system. However, the reparation order itself has been made redundant, having been overtaken by the evolution of the wider youth justice sentencing framework. Instead, referral orders and youth rehabilitation orders now provide a wider range of interventions, including elements of restorative justice, and are more flexible than a reparation order. They have essentially replaced reparation orders.

Also, reparation orders cannot be given in conjunction with a referral order or a youth rehabilitation order, which significantly reduces the circumstances in which they can be used. As a consequence, reparation orders have dropped out of usage—they dropped by 98% over the last decade because the other disposals have taken up the slack. Only 51 have been handed down in the year to March 2020. It is by far the least-used non-custodial disposal. Therefore, in the interests of clarity and simplicity, the clause abolishes the reparation order to enable those other forms of disposal to be used, as they are used anyway.

[Alex Cunningham]

As the Minister explained, the clause would abolish reparation orders, which require the child to make practical amends to the victim or other affected party. The Government White Paper noted that the orders are little used, probably as they have been replaced by some of the more widely used sentencing options, and so have become redundant.

Reparation orders are the least used orders in the children’s sentencing regime, too. Between 2010 and 2019, around 5,000 offenders under the age of 18 were sentenced to reparation orders. The number of reparation orders handed down fell in each year during that period. In 2019, 66 of those sentences were passed, compared with 2,400 in 2010. In the year ending March 2020, there were just under 16,900 occasions where children were sentenced at court; only 51 of these were reparation orders.

While it is not clear why the use of the order has fallen so sharply, it has been suggested that it is as a result of changes in the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which removed restrictions on the use of cautions and conditional cautions, which means that children who may have proceeded to court are possibly now receiving out-of-court disposals, which is a good thing. Do the Government plan to do any research to confirm this suggestion? I think it could be helpful if they did so, since this is quite a significant change in sentencing patterns, and it would be helpful to better understand how restorative justice processes are now manifesting themselves, given that usage is low and that reparation can also be included in other sentences, such as the referral order and youth rehabilitation order.

We support the removal of reparation orders and support the clause.

Question put and agreed to.

Clause 136 ordered to stand part of the Bill.

Clause 137

Temporary release from secure children’s homes

Question proposed, That the clause stand part of the Bill.

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[The Chair]

The vote might come at quarter past 4, although the Whips will be better informed of that than me, and the Whip cannot move the adjournment while someone is speaking, I just remind him of that.

[Chris Philp]

With that thought in mind, I will try to deal with the important points raised as quickly as I can.

We recognise that young people in detained accommodation or in custodial settings need a lot of support. Secure schools are being developed to do precisely this.

To support this, we think it is important that secure schools are provided by people who have a certain level of autonomy. Many charities have the necessary skills to do this. That is why, starting with clause 138, we are ensuring that providing a secure 16-to-19 academy can be counted as a charitable activity, enabling charitable secure school providers to improve outcomes in youth custody.

We always take changes to charities law seriously. We have to ensure that charities are properly regulated. The Ministry of Justice has worked closely with the Charity Commission and the Department for Digital, Culture, Media and Sport to make sure that is done in a way that preserves the integrity of charity law.

Clause 137 ensures that there is a clear statutory power to enable providers to allow for temporary release where someone is sentenced to custody, which applies to secure schools as well. It is important that these children can be released into the community as part of the rehabilitation that we want to do with them. This clause puts that release provision on a statutory footing. We think that temporary release provisions are an essential tool in the rehabilitation journey, and this makes sure that can happen.

The Youth Custody Service and secure children’s homes that make temporary release decisions always do so subject to proper risk assessments. The YCS will develop formal guidance for SCH managers, outlining the necessary steps to be taken when making a balanced temporary release decision. Both these measures are helpful in ensuring that charities are able to come into this space to provide these services and that temporary release can be facilitated as part of the rehabilitation package, all of which is important.

Amendments 123 and 133 speak to the inspection regime. Like other academies and children’s homes, secure schools will be jointly inspected by Ofsted and the Care Quality Commission. They will also be inspected monthly, not annually, by independent visitors. As co-commissioners for secure schools, the Youth Custody Service and NHS England will be responsible for ensuring high standards of performance. The minimum frequency of inspection is also set out in the regulations.

As secure 16-to-19 academies will fall under the definition of a children’s home in the Care Standards Act 2000, they will be inspected on an annual basis in any case. The definition of children’s home in the Children’s Home (England) Regulations 2015 makes it clear that they will fall under the frequency of inspections regulations, so they will be annually inspected in any case, making amendment 123 unnecessary.

We have consulted HMCIP on the question of inviting it into the inspection regime, and it agrees with the Government’s position. Although secure schools are a secure environment, they are essentially schools and children’s homes, and so should be inspected by Ofsted and the CQC. Involving the prisons inspectorate in these institutions would run counter to the ethos we are trying to develop.

In speaking to amendment 146, the hon. Member for Rotherham made a compelling contribution on some of the failings that have occurred in the past, which we all agree we want to avoid. We are clearly talking about the new secure 16-to-19 academies. I want to speak to the concern about the profit motive, which amendment 146 addresses. As part of the existing academies legislation, an academy trust is, by definition, a not-for-profit charitable company, so I can confirm to the hon. Member and other members of the Committee that because academy trusts have to be not-for-profit by their nature, this new provision does not open up the possibility of introducing the profit motive into the provision of these secure schools.

I hope that my remarks achieve the twin objectives of giving commitment and assurance on these clauses, as well as avoiding a clashing with a vote that may be imminent.

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[The Chair]

Minister, are you willing to do that?

[Chris Philp]

Yes.

[The Chair]

Excellent.

Question put and agreed to.

Clause 137 accordingly ordered to stand part of the Bill.

Amendment proposed: 123, in clause 138, page 126, line 40, at end insert—

“(8) A secure 16 to 19 Academy will be subject to annual inspection by Her Majesty’s Chief Inspector of Prisons.”—(Alex Cunningham.)

This amendment would make secure 16 to 19 academies subject to annual inspection by Her Majesty’s Chief Inspector of Prisons.

Question put, That the amendment be made.