Criminal Justice and Courts Bill

Debate between Elfyn Llwyd and Julian Huppert

Monday 24th February 2014 Commons Chamber

[Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC)]

I am pleased to have an opportunity to take part in this debate, although several provisions in the Bill worry me intensely. The Bill has more to do with posturing on the part of the Government than with any real policy initiative. The Justice Secretary has presented it at a time when two other crime-related Bills are still awaiting Royal Assent. Indeed, some of its provisions seem to undermine those set out in the Offender Rehabilitation Bill, which is yet to reach the statute book.

Similarly, the Bill’s proposed reforms to judicial review, as set out in part 4, cut across provisions contained in the Immigration Bill—a point ably made by the Chair of the Home Affairs Committee. Most people would agree that there is a need to introduce a more robust process to weed out the unmeritorious cases, but we must be very careful not in effect to deny individuals who really rely on it. Furthermore, everybody accepts that the review process is a vital component of a healthy democracy: the individual’s right to challenge the over-mighty and to secure justice in properly decided administrative law cases. We limit those rights at our peril.

I will quote from a very interesting article that appeared in last Thursday’s edition of The Times, penned by a Member of the other place, a very experienced Queen’s counsel who has taken judicial review cases on many occasions and defended Governments in such cases as well. He wrote:

“Clause 50 provides that courts and tribunals must refuse to allow a judicial review application to proceed to a full hearing if the defendant shows that it is ‘highly likely’ that the outcome for the applicant ‘would not have been substantially different if the conduct complained of had not occurred’. If the case does not proceed to a full hearing, the court must refuse any remedy to the applicant if that same test is satisfied.

The proposal is objectionable for constitutional reasons. The clause will instruct judges to ignore unlawful conduct and to do so in a context where the government itself is the main defendant.

All governments come to resent the power of the judiciary to identify and remedy unlawful conduct. But until now they have, with greater or lesser enthusiasm, recognised the value of what is central to the rule of law. After all, they will not be in power indefinitely…It tells the Government, and the world, that what has been done is unlawful. Ministers and civil servants know that they must change their conduct for the future, and they do so.”

He concludes the article by stating:

“Over the past 40 years, judicial review has helped to prevent abuse of power by governments of all complexions. It is ironic that judicial review now needs protection from a politician whose reforms would neuter its force by the use of political slogans that have no factual basis and are ignorant of legal and constitutional principle.”

Those are strong words from an expert in the field. I think that we would do well to take them on board and consider their purport.

The timetabling of the Bill is also a little confusing. Although it is having its Second Reading today, we must assume that its introduction has been orchestrated so that it will be carried over at the end of the Session, no doubt to make the Government appear proactive and to mask the fact that so few significant pieces of Government legislation remain.

[Dr Huppert]

The right hon. Gentleman, as ever, is making some interesting points, but is he really saying that the test of a Government is the number of pieces of legislation they pass? I would have thought that he, like me, thinks that Parliament has much more to do than simply pass legislation.

[Mr Llwyd]

No, I am not saying that. In fact, I was a long-time critic of the Blair Administration, who introduced criminal Bills almost every teatime. That is not a test at all. Also, several measures that the Justice Secretary referred to in his opening speech today are rehashes of various things we have seen in the press over the past few months. All I am saying is that when a Government run out of steam, the benchmark is not how many pieces of legislation they pass—otherwise, heaven knows where we would end up.

I am mindful that other Members wish to speak and so will try not to detain the House for long. Part 1 of the Bill creates a number of offences, many of which are considered unnecessary at best and, at worst, vindictive provisions that are likely to increase the prison population considerably. Clause 4 introduces a drastic change to release arrangements for offenders serving extended determinate sentences, who are currently entitled to automatic release after they have served two thirds of their sentence. Instead, they will now be required to appear before the Parole Board so that it can assess whether they are fit to be released on licence.

It is important to note that extended determinate sentences were enacted by the Legal Aid, Sentencing and Punishment of Offenders Act 2012, a very recent piece of legislation. That is not the only example in the Bill of the Government seeking to amend provisions introduced by their own justice Bills. Extended determinate sentences from the outset increased the minimum tariff a person was required to spend in custody from half of their sentence to two thirds. By stipulating that offenders will also have to satisfy the Parole Board before being considered for release, the amount of time that is available for supervision and rehabilitation back into the community is further decreased.

Furthermore, the Government appear to have drastically underestimated the impact those changes will have on the Parole Board’s resources and the size of the prison population. In their impact assessment, the Government predict that the changes introduced in clauses 1 to 5 will result in an increase of 1,000 prison places and an increase of 1,100 Parole Board hearings per year between implementation and 2030. The Prison Reform Trust has written to Members of Parliament urging us to seek clarification from the Government on how they calculate these figures. After all, the Government of the time underestimated the impact that IPP sentences—indeterminate sentences for public protection—would have on the prison population. When those sentences were first debated in Parliament—I recall the debates—the Government were insistent that the new sentence would increase the prison population by 900 places. By June 2013, 5,620 offenders were still in custody serving the now-abolished IPP sentences, 3,549 of whom were being held beyond their tariff date. The impact on the operation of the Parole Board has been nothing short of overwhelming. In August 2013, the backlog of cases still awaiting hearings by the Parole Board was 1,352, with IPP offenders accounting for 61% of indeterminate review cases. Yet the Government think it apposite to increase the workload of the Parole Board yet again by introducing changes to the automatic release of offenders—and this at a time when Parole Board staff numbers have been reduced by nearly one in five.

The release test for recalled prisoners provided for in clauses 7 and 8 will similarly place an extra burden on the beleaguered Parole Board. At present, recalled offenders serving determinate sentences undergo a fixed-term recall whereby they serve 28 days in custody and are then automatically released. Under clauses 7 and 8, however, these offenders will serve the remainder of their sentence in custody if the Secretary of State determines that an offender is likely to breach a condition of their licence. The Parole Board would need to conduct a release test before certifying that the offender can in fact be released. The Prison Reform Trust has drawn attention to the fact that this pays scant regard to the peculiar circumstances of offenders with learning disabilities and mental health problems, many of whom find it difficult to understand the terms of their licence.

Once again, the Government’s estimate of how many offenders will be affected by this change seems worryingly off the mark. The impact assessment calculates that the change will result in 75 offenders per year being affected and an extra 50 prison places being required. However, this blatantly fails to take into account the likely impact of the changes being introduced concurrently by the Government’s Offender Rehabilitation Bill, still being considered by the other place, which will result in mandatory supervision being given to all offenders serving sentences of 12 months or less. The impact assessment for that Bill estimates that 13,000 extra offenders will be recalled or committed to custody each year, with an increase of 1,600 places in the prison population. I would be grateful if the Minister clarified how the Ministry of Justice has calculated that so few offenders will be affected by the combined impact of this Bill and the Offender Rehabilitation Bill.

Clause 8 gives the Secretary of State the power to use the affirmative resolution procedure in order to change the release test for recalled prisoners serving determinate sentences. I am worried that the Government are proposing to use secondary legislation to implement such a significant change, and I hope that they will reconsider this provision ahead of the Bill’s Committee stage.

Clauses 10 and 11 introduce a new statutory offence of being unlawfully at large following a recall to custody. This would be triable either way and could result in a convicted offender being imprisoned for up to two years. Once again, the Government seem to have omitted any safeguard for vulnerable offenders with learning disabilities or mental health problems that would impair their ability to understand the full terms of their release. It would be beneficial if the Government inserted such a safeguard ahead of the Bill’s later stages. For example, it would be useful if the Bill made a distinction between offenders who abscond wilfully and those who do not report as a result of a misunderstanding or a miscommunication. According to research conducted by the Prison Reform Trust in 2007, between 20% and 30% of offenders were estimated to have a learning disability that affected their ability to cope with the complexities of the criminal justice system and the co-operation expected of them. During debates on the Offender Rehabilitation Bill in the other place, the Government pledged to produce special versions of licence conditions for individuals with learning difficulties. I would welcome the Minister’s assurance that they intend to keep true to that pledge, and indeed any other provisions that they will be making for vulnerable offenders so that they can understand what actions are strictly required of them.

My final point on part 1 concerns the new offence introduced in clause 16 that criminalises the possession of pornographic materials depicting rape and non-consensual sexual penetration. I truly applaud the Government’s efforts in this regard to minimise the use and dissemination of extreme pornographic materials, and particularly the work they are doing to minimise the opportunities for children to come into contact with this filth. In my view, however, there can be no benefit to society or to the individuals involved if persons convicted of sex offences are left languishing in prison without treatment or, worse, released into the community without treatment. I welcome what the Government are doing, but ask them to go one step further in ensuring that these perpetrators are dealt with positively, if that is the right word.

Although the internet sex offender treatment programme is available for offenders on supervision in the community, it is, rather perplexingly, not available in prisons. In relation to the availability of the sex offender treatment programmes which, conversely, are available in custody, I understand that as of July 2012, 21 prisons offered these programmes, despite the fact that offenders are serving time in relation to sex offences in over 100 prisons. This means that a person convicted of a sex offence has roughly only a one-in-six chance of being able to access treatment that would address his or her offending behaviour. I urge the Government to improve their provision of treatment programmes for these offenders before incarcerating yet more for similar offences.

In summary, the changes in part 1 will result in greater overcrowding of the prison estate and a greater burden being placed on the Parole Board, despite no mention being made, at least as yet, of any extra resources being allocated to deal with this increase. The proposals appear to be rushed and ill thought out, and I hope they do not end up being shambolic, but I would not be surprised. I urge the Government to reconsider the motivation behind these new offences before the Bill reaches its later stages.

I wish to make a few remarks about the changes to youth custody introduced in part 2. The proposal to introduce new secure colleges for children aged 12 to 17, which would be implemented by the passing of clauses 17 to 19, was first published in a recent consultation entitled “Transforming Youth Custody”. I agree with the views posited by the Howard League for Penal Reform and the Prison Reform Trust that the introduction of secure colleges may result in an increase in custodial sentencing for young offenders and longer sentences being handed out. I am particularly concerned that clause 18 would allow for these secure colleges to be contracted out to private companies, and that under the terms of schedule 4 those companies will be granted the opportunity to use reasonable force and restraint to enforce “good order and discipline”.

Stalking

Debate between Elfyn Llwyd and Julian Huppert

Thursday 21st November 2013 Commons Chamber

[Mr Llwyd]

The right hon. Lady is absolutely correct and I agree with every word she has said. The group’s strength is the fact that it is all-party, so Politics—with a capital P—plays no part in our deliberations.

The reason that stalking is hard to delineate is that it consists of a catalogue of incidents that, when taken alone, can seem innocuous enough to begin with. It is only when they are taken together that their cumulative and sinister effect can be seen. In many stalking cases the perpetrator will never issue an overt threat, but rather plagues his or her victim with flowers, phone calls, letters and gifts. It is thought that victims tend to wait until the 100th incident of stalking before reporting the matter to the police.

The advent of the internet also provides perpetrators with far greater opportunities to attack their victims—for example, on social media websites such as Twitter and Ask.fm and on online forums. Individuals can shield their true identity by adopting pseudonyms and hiding their IP address. More and more, the phenomenon of internet trolling is becoming an issue of concern. Multiple individuals can target a victim by sending them abusive messages, sometimes hundreds at a time. The recent examples involving Caroline Criado-Perez and the hon. Member for Walthamstow (Stella Creasy) are cases in point.

[Dr Julian Huppert (Cambridge) (LD)]

I congratulate the right hon. Gentleman on raising this subject so consistently—the House will miss him greatly when he stands down in a year and a half. He is right to make the point that a huge number of victims do not always realise that they are victims, whether online or offline. There were about 120,000 victims last year, most of whom were not recorded by the police and probably were not recognised. How can we encourage people to realise when stalking behaviour is starting so that they can spot the problem early?

[Mr Llwyd]

The hon. Gentleman is right, because part of the campaign we are running is about making people aware of the cumulative nature of this insidious offence. It is important that not only the people who might suffer it, but professionals in the field, get into training as soon as possible so that we can plug the gap properly.

Research conducted by Lorraine Sheridan in 2005 found that half of stalking victims had to give up social activities as a result of stalking, while half saw their performance at work affected and 98% reported emotional affects such as distrust, appetite disturbance, insomnia, agoraphobia, self-harm and even suicidal thoughts. Research by Laura Richards in November 2011 revealed the horrendous long-term nature of stalking behaviour, as well as the effect that has on victims. One in every two victims who took part in the survey had been stalked for longer than 18 months, and 42% were stalked for more than 24 months. With protracted stalking campaigns there is a real risk of escalation. Offenders can ultimately go on to attack, rape, cause serious harm or even murder their victims.

Our inquiry panel was in little doubt that victims were not getting enough support and that the prevalence of the crime far outstripped police investigations, arrests and charges brought against perpetrators. Indeed, almost all of those who have evidence to us were persuaded that the 1997 Act was not doing an adequate job of protecting victims of the crime. The Act was passed with the best intentions—I was here at the time and played a small part in it—but the wideness of its provisions was in many respects its weakness.

In his foreword to “An evaluation of the use and effectiveness of the Protection from Harassment Act 1997”, David Moxton stated:

“The Act came into force in June 1997 and was intended to deal with the overt problem of stalking.”

But in her summary of the same report, Jessica Harris noted:

“One of the Act’s aims was to tackle the problem of stalking, but it also covered a range of behaviour which might be classed more broadly as harassment of one kind or other... The Act is being used to deal with a variety of behaviour other than stalking including domestic and inter-neighbour disputes and rarely for stalking itself.”

Those are problems we saw. Answers to parliamentary questions asked by members of the panel gave various pieces of important information. For example, we discovered that in 2009 4,365 persons were found guilty under section 2, the offence of harassment, but that the number receiving a custodial sentence was only 565—13% of those found guilty. Our research also showed that it was highly unusual for persons to be found guilty of the section 4 offence, which is putting a person in fear of violence. In 2009, 786 persons were found guilty, of whom only 170 were given a prison sentence—22% of the total. Our report states:

“The number of persons found guilty of breaching a restraining order under Section 5 of the Act was 1,463 in 2009 and the percentage of those jailed was 32%. However if the figures are taken as a percentage of all the offences recorded during 2009 then only 2% were jailed and 10% were fined or dealt with in other ways.”

What was so concerning about the fact that so few perpetrators were given custodial sentences was not simply that victims were denied justice, but that the individuals involved were not being given treatment to address their obsessive behaviour. Stalking is undoubtedly a characteristic of obsessive behaviour. The evidence we compiled for our report showed that most perpetrators of stalking commit multiple breaches of restraining orders over their criminal “careers”. Some individuals breach four or five times. Examples submitted to the inquiry showed that some individuals breached their order more than five times and still received either a fine or another form of non-custodial sentence.

We also heard evidence of numerous perpetrators being charged with offences that were less serious than stalking and focused on only one incident of abuse, rather than the whole pattern of behaviour. We were persuaded that it was essential that courses of conduct should be taken into account. If offences of this nature are not taken seriously and properly prosecuted and if the perpetrators are not treated, the underlying problems prompting that behaviour will never be properly addressed.

To be fair, the Government acted quickly on many of those recommendations and passed legislation in March 2012. However, despite the new 2A and 4A offences coming into force in November 2012, there are concerns that the new laws are not being used widely enough and that many police forces have not held training on the new offences.

Anti-social Behaviour, Crime and Policing Bill

Debate between Elfyn Llwyd and Julian Huppert

Monday 14th October 2013 Commons Chamber

[Dr Huppert]

My right hon. Friend is absolutely right, highlighting why it is important to have this provision.

Since I first saw the Bill in its pre-legislative form in the Home Affairs Committee, I have been extremely concerned about clause 17. This disapplies section 49 of the Children and Young Persons Act 1933 for both IPNAs and CBOs. It disallows the rules that say that children should not be named and shamed publicly. We should all be extremely alarmed about that because children make errors. They may do something very silly when they are 14. Particularly in today’s age when data is freely available, what they have done could stay with them for the rest of their lives, and there is very little that anybody could do to stop that. That makes it hard for them to rehabilitate, to grow up and to become someone who regrets what they did when they were 14, as so many people will do.

I have heard the Government comment that the intention is to apply this only in rare circumstances, so that judges would not automatically name and shame young people, but do so only where it was an essential part of the order. The guidance must be absolutely crystal clear on this—on minimising the naming and shaming. This should be disapplied only where it is necessary to do so rather than applying it willy-nilly. Otherwise we will breach the UN convention on the rights of the child and a lot of other provisions.

On dispersal powers, my right hon. Friend the Member for Bermondsey and Old Southwark said that in response to the Select Committee report the Government have protected peaceful picketing and public processions, but I think it would be good to go even further to ensure that we do not prevent peaceful protest when we deal with antisocial behaviour. I agree with the amendment on that.

Lastly, I agree with the comments made by my right hon. Friend and the hon. Member for Hayes and Harlington about clause 91, which deals with riot-related offences. These have arisen from the time of the riots and the Prime Minister’s reaction to them. Now, however, we have calmed down and recovered from those awful events, so it is time to reflect on whether we need this special sanction. As right hon. and hon. Members have said, these provisions deal with a situation for which solutions are already available, so we do need to deal with the problem in the way proposed. The JCHR’s report says that it recognises

“the seriousness of riot-related offences”,

but questions whether we need a special rule for riot-related antisocial behaviour, because it looks like

“a punishment rather than a genuine means of preventing harm”.

I therefore hope that the Government will reflect on whether the clause is still needed.

Overall, the Bill has been improved, but I hope it can be improved even further. I am very excited at the role that my hon. Friend the Minister will be able to play. I look forward to hearing his response to the amendments, which I hope, in the fullness of time, he will be able to recommend.

[Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC)]

I agree with what the right hon. Member for Bermondsey and Old Southwark (Simon Hughes) and the hon. Member for Hayes and Harlington (John McDonnell) said about amendment 158, and indeed about other amendments. Objectivity is vital. In the absence of objectivity, the police officer will be judge and jury, deciding everything on the spot, and—with the best will in the world—in a difficult, fraught situation on a busy Saturday night, things could go badly wrong. If we do not bring some objectivity to bear, we shall be on a very dangerous and slippery slope. I hope that the Government will consider this reasonable amendment.