Police, Crime, Sentencing and Courts Bill

Lord Falconer of Thoroton Excerpts

2nd reading
Tuesday 14th September 2021 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

My Lords, I am obliged to the noble Baroness, Lady Williams, for her clear but inevitably incomplete description of the Bill. Her incomplete description of it is not her fault. We support some of the measures in the Bill, in particular those that seek to increase penalties for sexual and violent crime, but the presentation of the Bill in this form is an affront to the rule of law and the role of Parliament: 177 clauses, 20 schedules, 62 new delegated lawmaking powers and amendments to 39 other statutes. Our constitution requires legislation such as this, particularly because it affects the liberty of the subject, to be properly scrutinised by both Houses of Parliament. With a Bill this size, that is well nigh impossible. Introducing a Bill in this way at this time does not accept, as the Government should, the limitations of time on a parliamentary process.

Quite separately from those complaints that I have about the Bill, the Delegated Powers Committee of this House has delivered a report which makes it absolutely clear that it takes considerable offence to a number of the Bill’s provisions that are giving power to the Executive to pass guidance; in particular, those that will give Ministers undue power because the effect of failing to comply with that guidance will lead to consequences in court, which will have an effect on the citizen. This is not the way to legislate. Yes, there are certain things that need to be done as far as the criminal justice system is concerned, but this Government should prioritise what those things are and then do them.

The Lord Chancellor said in another place that this Bill was designed to increase—or, in his words, restore—faith in the criminal justice system. It does not do that. There were things that he could have done to restore that faith, which is urgently required. I shall identify three things to indicate that. In the year to March 2021, a staggering 21.8% of victims said that they wanted to abandon their criminal case because they were fed up with the system—that is 945,000 cases involving the victims withdrawing their co-operation. A survey by Vera Baird, the Victims’ Commissioner, said that one-third of victims took the view that they would not report a crime again because of the experience they had had in the criminal justice system. As everybody in this House knows, because it has been repeated time and again, the number of complaints of rape goes up every year while the number of rape prosecutions goes down, and the number of convictions goes down as well.

Yes, we do need improvements to the criminal justice system, but a Christmas tree Bill of this size is not the way to deal with it. It is not possible in the time allotted either to me or to any of us to identify every single issue in relation to the Bill, but I will identify 11 issues that may be worth further consideration.

The first is on the policing of protests. The Minister will have seen what the Joint Committee on Human Rights has said in relation to the provisions that have been taken. It says absolutely explicitly that the Government have got the balance wrong between the right to protest and the powers being given to the Executive. To give the Executive the power to ban demonstrations because they make excessive noise is not proportionate; you would expect demonstrations to make noise and we will be looking in some detail at those provisions.

Secondly, there is the issue of unauthorised encampments in Clauses 62 to 64. These go much further than the Minister said. Contrary to what she specifically said, they are an attack on the Roma or Gypsy way of life. It is not necessary and, furthermore, it is not supported by the National Police Chiefs’ Council. It is something the Government have done which goes much further than necessary.

Thirdly, the Bill does not bring into effect right across the country Section 28 of the Youth Justice and Criminal Evidence Act 1999. If that section had been brought into effect, it would have allowed and led to the ability—right across the country—of victims of severe sexual assault to give their evidence straightaway before a judge. They would be cross-examined about it, but the film of that evidence would then be played at the trial at a much later date. That would allow the victim to avoid that awful period as they wait for the trial to take place. But the Lord Chancellor said in another place only that it should be further piloted. Why is it not being introduced right across the country? A reason given is because there are not enough judges to do it, and there would need to be judges to hear the evidence of the victim. Apart from offences leading to death—primarily murder and manslaughter—it is hard to imagine a higher priority for the judiciary than hearing serious rape and sexual violence cases, so the absence of judicial resource does not seem a good excuse. We would strongly urge that it be rolled out and will introduce an amendment to that effect.

Fourthly, I welcome what the Minister said about the extraction of information from the mobile phones of victims of serious sexual assault. Subsequent to the deliberations of another place, I think, a code of practice was produced as to the circumstances in which the extraction of material from mobile phones could be done. We share the concerns that that code of practice does not adequately protect the interests of victims. In particular, it needs some sort of third party to protect their interests in relation to that; again, that will be debated. I would be very interested if the Minister could indicate to me what protections for the owner of the mobile phone are contained in the code of practice, and whether they can be strengthened.

Fifthly, we think that there should be, subject to judicial discretion in appropriate cases, a minimum sentence for rape of seven years. The answer given by Ministers in another place was, “Well, two-thirds of people convicted of rape get seven years or more now, so why do you need a minimum sentence?” The answer is: so that it is clear what the view of the legislature is on the gravity of that crime. There needs to be some degree of judicial discretion, but that could be built in.

Sixthly, we take the view that the Bill should have addressed as a priority the problem of sexually offending behaviour and provided greater protection. Three specific steps were proposed in the other place. First, a whole-life term should be the starting point for a murder that involved the abduction and sexual assault of the victim. Secondly, there should be an independent review of the sentencing code in relation to domestic homicides. Thirdly, there should be a power to sentence offenders for up to two years if they identify an anonymous complainant in a case involving rape or serious sexual assault.

Last Thursday—I may have got the date wrong—the Government announced an independent review of the sentencing structure for domestic homicide. Clare Wade, a Queen’s Counsel, has been appointed to review the sentencing framework. I do not know and have not seen the terms of reference of that framework. Could the Minister set out what they are and indicate what the relationship of that review is to sentencing guidelines and the Sentencing Council?

Seventhly, this is a perfect opportunity to deal with the Vagrancy Act 1825, which makes it a crime, in effect, to be street homeless. Are the Government, who have been broadly supportive of changes to the Vagrancy Act, willing to see it repealed? An argument given in the past as to why it should not be repealed was that you need something to deal with “aggressive begging”. We on this side of the House believe that that is already covered by other legislation.

Eighthly, this is the opportunity to deal with indeterminate public protection sentences. We recognise the problem that there are certain people whom it would be difficult to release, but they should be a very exceptional and small category. Perhaps they should be a category of people upon whom, if there had not been an IPP sentence, a life sentence would have been passed instead of the IPP. It may well be that everybody else—the number is going up, not down, over a definitive period—should be released.

Ninthly, it was said in another place that the offence of assaulting a shop worker would be actively considered. Shop workers have been rightly praised for keeping the country and the economy going during the pandemic. We need a bit more than warm words. The Minister in the other place said that they would consider it. Can the Minister in this place tell us where they have got to in relation to that?

Tenthly, I understand that the Government are going to introduce in this place amendments in relation to the serious issue of pet theft, although I may be wrong. Could the Minister explain the position on that?

Finally, I turn to the issue of the children of mothers in prison. Time and again, prison sentences for mothers victimise their children. The Human Rights Committee of both Houses said that this is a perfect opportunity to deal with that issue, if on no other basis than that proper information and data be collected. I did not give the Minister notice that I would raise this issue, but if she could deal with it when it is convenient—perhaps not today but on another occasion—I would be grateful.

Separately from the things that we think are right—we have no problem with the police covenant or, as I have indicated, some of the strengthening of sentencing—we would like to focus on those eleven areas. I do not treat them as exclusive, and no doubt there are many things I have omitted, but this Bill is simply a scattergun that will not do enough for criminal justice.

I very much hope that, on 27 October, the key thing we will hear in the comprehensive spending review is that the criminal justice system will be properly funded and that recompense will be made for the 25% of funding that has been taken away from it by this Government.

Police, Crime, Sentencing and Courts Bill

Lord Falconer of Thoroton Excerpts

Lords Hansard - part one & Committee stage
Wednesday 27th October 2021 Lords Chamber

Moved by

[Lord Falconer of Thoroton]

78: After Clause 35, insert the following new Clause—
“Domestic homicide reviews
(1) Section 9 of the Domestic Violence, Crime and Victims Act 2004 is amended as follows.(2) For subsection (2) substitute—“(2) The Secretary of State must in all cases which meet the circumstances set out in subsection (1) direct a specified person or body within subsection (4) to establish, or to participate in, a domestic homicide review.”(3) After subsection (3) insert—“(3ZA) The Secretary of State must by regulations set out—(a) the type of data relating to domestic homicide reviews which must be recorded, including—(i) the number of domestic homicide reviews taking place across England and Wales annually; and(ii) the time taken to complete each individual domestic homicide review;(b) that the data must be recorded centrally in a Home Office database; and(c) that the data must be published annually.””Member’s explanatory statement
This new Clause seeks to modify the Domestic Violence, Crime and Victims Act 2004 to force the Secretary of State to automatically direct a domestic homicide review in circumstances as outlined in Section 9 of the Act. The new Clause also aims to improve data collection methodologies around domestic homicide reviews.

[Lord Falconer of Thoroton (Lab)]

This amendment deals with domestic homicide reviews, which are provided for in Section 9 of the Domestic Violence, Crime and Victims Act 2004. Domestic homicide reviews are concerned with where a domestic murder or manslaughter occurs, meaning where somebody over 16, living in the same household as somebody else, is murdered or is the victim of manslaughter, or some other crime, leading to death. The purpose of the domestic homicide review pursuant to Section 9(1) of the 2004 Act is to identify the lessons to be learned from the death. It is envisaged that it will be a multiagency review.

These domestic homicide reviews have proved to be of real value because they have identified the sorts of things which, if they were remedied, could help to prevent subsequent occurrence. The two big issues to emerge, time and again, in domestic homicide reviews are the proper recording of domestic violence complaints and whether the risk that the recording revealed has been properly dealt with, particularly by the police but also by other agencies. The Home Office published what lessons have been learned from a whole range of domestic homicide reviews in a 2016 document. I cannot find any subsequent document that brings together lessons learned.

We seek to do two things by this amendment, and there is a connected issue that I raised with the Minister before coming to this debate today. First, according to Section 9(2) of the 2004 Act, the Secretary of State has a discretion as to whether he orders a domestic homicide review in any case. On this side of the House, we consider that there should be a domestic homicide review in every case. Documents emanating from the Home Office suggest that it believes that there is such a position. Looking at Section 9 of the 2004 Act, it is quite difficult to ascertain whether or not there is an obligation in every case for there to be such a domestic homicide review. We think that there should be, and our proposed amendment to subsection (2) seeks to achieve that. I would very much welcome the Minister telling us what the position is in relation to it and what legal duty exists to ensure that there is a domestic homicide review. If there is any doubt about it, can he confirm that the Government’s position is that there should be a domestic homicide review in every case and that he would consider making the necessary legal changes to ensure that?

Secondly, we take the view that there should be proper recording of all that is learned from domestic homicide reviews, and, in particular, that the information is readily available in a centralised place to determine the sorts of things that lead to domestic homicides, so that it is available to everybody, in particular every police force that is dealing with it.

Thirdly, and separately—this is not specifically covered by the amendment, but I raised it with the Minister beforehand—a domestic homicide sentencing review was commissioned by, I think, the previous Lord Chancellor, on 9 September 2021. This has involved the instruction of Clare Wade of Her Majesty’s Counsel to look into the sentencing of people convicted of a domestic homicide. Will the Minister please say what the terms of reference of Clare Wade’s review are? When is it expected to report, and what will be done with its recommendations?

We start, on this side, from the premise that this Bill does not sufficiently address violence against women and girls in particular. In two-thirds of domestic homicides, of which there are about 150 a year, a woman is the victim. The pattern of sentencing by courts has evolved in such a way that in the case of victims of stabbing outside of a domestic context the courts are guided to give very heavy sentences, while for victims of stabbings in a domestic context the courts are not given such stringent guidance. We think that that needs to be looked at: a domestic killing should not be treated as less serious than one committed outside the home. I would be grateful to hear the Minister’s explanation of the position in relation to the review. I beg to move.

[Baroness Bennett of Manor Castle (GP)]

My Lords, it is a great pleasure to follow the noble and learned Lord, Lord Falconer of Thoroton. My noble friend Lady Jones of Moulsecoomb signed this amendment but is, unfortunately, unable to be in the House tonight and I speak in her place.

Essentially, I agree with everything the noble and learned Lord, Lord Falconer of Thoroton, said. I will add just a couple of points. It is worth noting that the National Police Chiefs’ Council and the College of Policing produced a report on domestic homicide in August, which described it as

“an entrenched and enduring problem.”

The report makes very disturbing reading. It records that just over half of suspects were previously known to police from domestic abuse cases, and another 10% were known for other offences, while 44% of households not covered by those categories were known to some other agency in some way. There is clearly an issue, therefore, with lessons learned.

It is good to have a report such as this: it is very useful and informative. But what is being proposed here is a register—something ongoing that can be a continual source of information and learning. We should make a couple of comparisons here. One is with air safety, where there is an assumption that whenever anything goes wrong every possible lesson will be learned and every piece of information will be extracted from it. We should be looking at domestic homicides in the same way.

Another parallel is with the Vision Zero approach to road crashes which many nations are increasingly adopting. We should be among them, and we should be looking to have zero serious injuries or deaths on the road. We know from the report that in nearly all cases of domestic homicide there has been an opportunity for someone to intervene. We should be looking towards a Vision Zero for domestic homicides.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

I thank the noble and learned Lord, Lord Falconer, for his conversation this afternoon, which was very gracious of him.

As the noble and learned Lord has set out, this amendment seeks to amend the Domestic Violence, Crime and Victims Act 2004 to require the Secretary of State to direct a domestic homicide review to be carried out in circumstances outlined in Section 9 of that Act. The amendment also aims to improve data collection methodologies around domestic homicide reviews. I shall go into that now and, I hope, answer noble Lords’ questions in the course of my remarks.

As the noble Lord, Lord Paddick, noted, domestic homicides are an abhorrent crime. Every death is a tragedy. I will explain some of the measures we are taking to tackle the perpetrators of these crimes, because it is germane to this amendment. In 2020-21 £7 million was awarded to police and crime commissioners to fund 28 perpetrator programmes, including the Drive project, which works with high-harm and high-risk perpetrators. This year we have also allocated £11.3 million to further expand the geographic scale of perpetrator programmes.

I return to the amendment. Domestic homicide reviews are a valuable mechanism for understanding what lessons can be learned from these deaths to prevent further tragedies. We recognise that there is room for improvement in the way these reviews are conducted and the lessons applied.

Domestic homicide reviews should be considered where the death of a person appears to have been caused by someone to whom they are related or had an intimate relationship with, or by a member of their household, with a view to identifying lessons from the death. The statutory guidance dictates that these decisions are to be made by community safety partnerships at local level. The Home Office should be notified of these decisions by the CSP. CSPs comprise representatives from responsible authorities: police, local authorities, probation and health services.

The chair of the CSP holds responsibility for establishing whether a homicide is to be the subject of a DHR by giving consideration to the definition set out in Section 9(1) of the 2004 Act, as noted by the noble and learned Lord, Lord Falconer, and whether the statutory criteria in that section are satisfied. There will be occasions where a CSP may consider it inappropriate to conduct a DHR based on the information before it, either because the statutory criteria are not met, in its view, or for other reasons.

The Home Office expert quality assurance panel reviews all decisions not to proceed with a review. The decision is then ultimately escalated to the Secretary of State, who can exercise her reserve power in Section 9(2) of the 2004 Act to direct a community safety partnership to conduct a review. This was first utilised in the very tragic case of Ruth Williams. Since March 2021, the Home Secretary has made four such directions.

In a very small number of cases, it is possible that the criteria for a domestic homicide review are met, but it is agreed that a review is not the best way to ensure that lessons are learned from the tragic death, for example when there is inadequate information to proceed or when a different safeguarding review would be more appropriate. I reassure the noble and learned Lord that these decisions are taken very carefully by the quality assurance panel and the Home Secretary.

In short, domestic homicide reviews already take place in the great majority of cases where the criteria in the 2004 Act are met. Given this, and the existence of the Home Secretary’s reserve power to direct a review, we are not persuaded that the framework for triggering these reviews is wanting and in need of change.

Turning to the second aspect of the noble and learned Lord’s amendment, I accept that there are concerns about the collection of data relating to domestic homicide reviews. This is why the Home Office has undertaken to create a central repository to hold all domestic homicide reviews. Funding has been secured for this and it is expected to go live next year. Once introduced, all historical reports will be collected to ensure that there is a central database on domestic homicides.

Furthermore, I should add that Section 17 of the Domestic Abuse Act 2021, which comes into force on 1 November, will amend Section 9 of the 2004 Act to make it a requirement for CSPs to send all completed DHRs to the domestic abuse commissioner as soon as reasonably practicable after completion. This will be a useful source of information from which the commissioner can drive forward change.

To go on to the noble and learned Lord’s final question about the sentencing review, the Government recognise the legitimacy of the concerns around the sentencing of domestic homicide cases raised by the families of Poppy Devey Waterhouse and Ellie Gould and those highlighted by the Victims’ Commissioner and domestic abuse commissioner. That is why we are conducting a review into such cases. It will be a targeted review of how domestic homicide cases—specifically those involving fatal attacks on intimate partners or ex-partners—are dealt with by our justice system, and will take account of sentencing outcomes and available data. The first stage of this review, an analysis of data and relevant sentencing for cases of domestic homicide tried between 2018 and 2020, is now complete.

As the noble and learned Lord noted, Clare Wade QC has since been appointed as the independent expert to conduct the second and final stage of the review. This will involve the consideration of both internal findings and existing external analysis carried out by academics and campaigning organisations, followed by the identification of potential options for reform. The expectation is that Ms Wade will report back to the Secretary of State before the end of the year.

In conclusion, I hope that the ongoing work in the Home Office on domestic homicide reviews and the domestic homicide review repository that I have described reassure the noble and learned Lord that the objectives he seeks through this amendment are already in place or under way. On that basis, I hope that he will be content to withdraw his amendment.

[Lord Falconer of Thoroton (Lab)]

I am grateful to the noble Baroness, Lady Bennett, and the noble Lord, Lord Paddick, for speaking in the debate. I am also grateful to the noble Lord, Lord Sharpe, for his very comprehensive answer, though I find the answers that he gave quite concerning for three reasons.

First, he did not give a coherent basis for why there are domestic homicide reviews in some cases but not others. I completely accept that there might be cases where it was not appropriate, but the set-up of the statute gives no real indication in relation to that. He indicated that the Secretary of State had intervened on a few occasions, but did not give the basis. It would be helpful to know how many domestic homicides had a review and how many did not in the last two years and what was the basis for the selection. If he feels able to write, that would help me in considering what to do with this next.

Secondly, on the centralisation of information, he did not really come forward with a proposal for how one would improve the information in relation to that. I need to consider what he said on that. Thirdly, I may have missed it—I will need to read Hansard—but he did not say what the terms of reference are for Clare Wade’s review. Are they written down somewhere? Could somebody let us see them?

At this stage, of course, I withdraw my amendment.

Amendment 78 withdrawn.

Police, Crime, Sentencing and Courts Bill

Lord Falconer of Thoroton Excerpts

Lords Hansard - part two & Committee stage
Wednesday 27th October 2021 Lords Chamber

It is clear that safeguards are needed to ensure that confidential material is not extracted inappropriately and that authorised persons consider the likelihood of a device containing this material, and any relevance to the inquiry, before any exercise of these powers. As I said, in the light of the Delegated Powers Committee’s report, we are considering whether to make suitable provision in the Bill rather than in regulations.

[Lord Falconer of Thoroton (Lab)]

I apologise for intervening. The Minister has been very helpful with this comprehensive response, but she said that the Government were not going to respond to the Delegated Powers Committee’s report until “the next stage”. It would be wholly unsatisfactory if they did not respond to that detailed report, which was issued weeks ago, until just before Report, because we have submitted a range of amendments. The House trusts the Minister, so could she do a bit better than “the next stage” and respond before Committee is over?

[Baroness Williams of Trafford (Con)]

My Lords, I will do my damnedest. I will take back the noble and learned Lord’s comments and see what is in the art of the possible. I can do no more than promise that, if he is happy with that—or rather, if he will accept it.

I will move on swiftly to Amendment 107, which seeks to remove immigration officers from Schedule 3, so that they can no longer exercise the powers in this Bill. Immigration officers play a vital role in protecting vulnerable people, in particular those who may be victims of trafficking, and it is important that they are able to obtain information that may be vital to these and other investigations. I therefore do not accept that immigration officers should not have access to these powers, subject to the same safeguards that apply to other authorised persons.

Finally, Amendment 106A relates to third-party material, an issue highlighted not just by the noble Lords, Lord Rosser and Lord Anderson, this evening, but by the Victims’ Commissioner, Dame Vera Baird. The amendment highlights a very important issue around the proportionality of requests for third-party material relevant to a victim. This material can be highly sensitive—for example, medical records. We agree that such material should only ever be sought where there is a reasonable line of inquiry, but we are aware that this is not always the case. There are examples where such requests cannot be justified, and this has a detrimental impact on the confidence of victims.

The noble Lord, Lord Rosser, also talked about written information given to victims. The police forces will use the digital processing notices developed by the NPCC for this purpose. The DPN, in layman’s terms, explains how the police extract the information, which information might be extracted, for how long it might be retained—that question was raised by the noble Baroness, Lady Chakrabarti, and answered in part by my noble friend Lord Hayward—and what happens to irrelevant material found on the device. The DPN makes clear that investigators must respect individual rights to privacy and must not go beyond reasonable lines of inquiry.

The Government wholeheartedly agree that there needs to be a consistent approach to ensure that requests for third-party material are made with the victim’s right to privacy in mind and to ensure that the victim is fully informed. This principle is key to a number of actions in the Government’s end-to-end rape review, which we published in June.

Moving on to the points made by the noble Lord, Lord Anderson, on Amendment 106A, our understanding is that the NPCC agrees in principle to the need for legislation but has not taken a view on a particular legislative solution. As I have indicated, this issue requires further examination, so I thank the noble Lord. I understand that the CPS similarly accepts the need for appropriate controls on access to third-party material.

The police and the CPS are working on new guidance for the investigators and victims which can be finalised after the Information Commissioner’s Office publishes its report on data in rape cases, which is due imminently. We will also consider whether a change is required to the Attorney-General’s guidelines. This will give us an opportunity to consider the broader landscape with regards to proportionality in requests for evidence from victims and whether further steps should then be taken. In terms of DPNs and involvement of the Victims’ Commissioner: yes, she has been involved with the development of the digital processing notices.

I apologise again for the length of my remarks to the Committee. The Committee has raised important issues in respect of the privacy of victims and witnesses, and it is very important we get the framework in the Bill right. I hope noble Lords will agree that we have listened to the concerns that additional safeguards should be set out in the Bill and will be content to agree the government amendments in lieu of their own. I say to the noble Lords, Lord Paddick and Lord Beith, that we will consider further their Amendments 97 and 103, and to the noble Lord, Lord Rosser, that we are very alive to the issues around third-party material. For now, I ask the noble Lord, Lord Rosser, to withdraw Amendment 79.

Police, Crime, Sentencing and Courts Bill

Lord Falconer of Thoroton Excerpts

Lords Hansard - part one & Committee stage
Monday 1st November 2021 Lords Chamber

In summing up, I reiterate that my view is not that primary carers should never be sentenced to a custodial sentence, but the Government must use the timely opportunity provided by this Bill to consider the big picture and ensure that the rights of children and the impact on their lives are brought to the fore. Doing that would of course also enable the Government to make progress on their own ambitions to radically reduce the number of women in prison, included in their female offender strategy and their national concordat on women in the criminal justice system as well as in the recommendations of the Farmer review on women. I ask noble Lords to support these amendments, and I beg to move.

[Lord Falconer of Thoroton (Lab)]

My Lords, it is a pleasure and a privilege to follow the right reverend Prelate. My name comes after hers on this amendment, and I strongly support what she has said. This is a very important set of amendments and I really hope the Government will take the opportunity that they give. The right reverend Prelate is not saying that those who have primary caring responsibility, or where an unborn child is involved, would get a free pass in relation to the sentencing regime or the bail regime. She is saying, with these carefully thought-out amendments, that there have to be proper arrangements for the courts to take these matters into account and recognise that they are a significant factor in many cases in determining a sentence.

If I could just take the Committee through these amendments, Amendment 110 says that where a court is considering whether to grant bail to somebody—that is, somebody who is not convicted of any criminal offence—they should have regard to the impact of not granting bail on a child for whom the defendant is the primary carer, or an unborn child, and that the court should presume, subject to victim impact or other relevant considerations, that it is in the best interests of the child or unborn child for bail to be granted. The right reverend Prelate is saying, “Weight the scales in favour of granting bail where there is a child for whom the defendant is the primary carer, or there is an unborn child.” That is sensible and should be the approach anyway.

Coming to the right reverend Prelate’s four other amendments, Amendment 215, which comes after Clause 131, says that the court should be under an obligation, through pre-sentencing inquiries, to discover whether the defendant is a primary carer for a child. That is obviously sensible, and no court would want to be in ignorance of that should it be sentencing somebody who is a primary carer. Amendment 216 says that where the defendant is a primary carer, the court must give reasons as to how it has dealt with the issue of primary caring. Again, that seems to be common sense. Amendment 217 says that where a court is considering imposing a custodial sentence on a primary carer or a pregnant woman, it must consider the impact of a custodial sentence on the child or unborn child and presume it will be detrimental to them. Amendment 218 would make sure that proper data is collected so that the criminal justice system is aware of the extent to which primary carers are imprisoned.

These amendments would mean that the interests of the child of which the defendant is the primary carer, or an unborn child, have to be explicitly considered and they are a weight—in many cases, a very considerable weight—in the scales. If we put these amendments into the Bail Act 1976 or the Sentencing Act 2020, which is where the right reverend Prelate is proposing they go, it will have an impact on sentencing. It is not enough, and it is a complacent view, as the Human Rights Committee found, to say, “Don’t worry; the judge has already taken it into account, it is referred to in the sentencing guidelines.” The evidence before the Human Rights Committee is that that was not the case. Put it into the Sentencing Act, as these amendments propose, and we will find that it then becomes a much harder thing for a court to avoid; it should be thinking of the rights of the child of which the defendant is the primary carer, or an unborn child. This is a significant opportunity for the Committee to make this Bill better, and I strongly support the right reverend Prelate.

[Baroness Massey of Darwen (Lab)]

My Lords, the amendments in this group are about ensuring the best interests and welfare of the child. We must remember that children are those under 18, not just little ones. The arguments have been admirably set out by the right reverend Prelate the Bishop of Gloucester and my noble and learned friend Lord Falconer. It is an honour to follow them both.

--- Later in debate ---

[Lord Carlile of Berriew (CB)]

My Lords, I agree entirely with my noble and learned friend who has just spoken that there is a principle here that needs to be considered rather than the granularity of these amendments. Indeed, I would say to the noble Viscount that, although we should try to achieve the protection of all people who are vulnerable, you cannot do everything at once. It is the whole of the life of the child in front of them that is affected if a parent is in prison.

The right reverend Prelate moved these amendments eloquently. I will say, very respectfully, that I think she omitted one or two key elements. These may lead one to the conclusion that we do not need quite complicated amendments but can achieve her aims, which I share, by a simpler method that is more evolutionary in its process. I might perhaps raise a couple of specifics. First, the information that the right reverend Prelate referred to is sometimes simply not before the court. That is because legal aid does not now provide solicitors with the earning potential—and it is not a high earning potential—to go out and investigate the reality of a child’s position. This means that the necessary information may not get in front of the court at all.

I had a conversation some time ago with somebody who was working as a manager of excluded primary school children in one of the London boroughs. She told me that she often rang the solicitors for 11 year-olds right at the top of the primary sector, or sometimes when they had just moved from the primary sector, to ask if they were aware of certain aspects of the child’s life—and they had no idea. They do not have the resources to make those inquiries. Furthermore, when cases come before the court, it is nowadays very rare in the Crown Court for a solicitor to be there instructing counsel in such cases, and, in the nature of the profession and the fees payable, counsel may have received the brief only the night before, and it may be a very junior counsel. These are the practical issues that judges encounter all the time.

I want also to say something about judges; I have a family interest in this, which I will not go into in great detail, despite the urgings of my noble and learned friend Lord Garnier. It is this: judges should be given credit for understanding the problems that the right reverend Prelate raised; she perhaps did not quite get there. Judges, many of whom are mothers themselves, hear these cases and understand perfectly well. They do not need a statute to tell them that it is not in the interests of a child for that child’s mother to be sent to prison .They do everything they can—on the basis of the information they are given, which may give rise to the real problem—to ensure that, if at all possible, a woman who has primary caring responsibility for a child is not sent to prison.

[Lord Falconer of Thoroton (Lab)]

I apologise for interrupting. The right reverend Prelate’s Amendment 215 says:

“A court must make inquiries to establish whether the offender is a primary carer for a child”,


and, if those inquiries suggest that the defendant is a primary carer, then, according to the amendment, the court has to direct a pre-sentence report on the circumstances of the child. Does the noble Lord object to that burden on the courts?

[Lord Carlile of Berriew (CB)]

I do not object to that burden on the courts, but I am surprised that it has to be placed upon the court. My view is that that sort of report should be part of the process when a young mother, for example, appears before the court. Mechanisms already exist that can ensure that such information is given. I am saying that we can achieve the same purpose more simply—for example, by the use of the Sentencing Council, if it is asked to concentrate on these issues.

I simply add this. The last statistics I have seen for women in prison, for 2020, show that 3.4% of prisoners are women. This is the lowest percentage it has ever been, and it is continuing to fall because the courts absolutely understand what those who tabled these worthy amendments are saying.

When the Minister replies, I hope he may be able to provide reassurance that the ends of these amendments will be achieved but in a more flexible way that can evolve over time, rather than by slightly clunky statutory provisions that, in my view, should not be necessary. Do we really need an Act of Parliament to ensure that courts give proper account to the paramount interests of children, which my noble and learned friend referred to a few moments ago?

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[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)]

My Lords, perhaps I should first begin by apologising to the noble Lord, Lord Marks of Henley-on-Thames, for standing up at the same time as him. I am not sure whether I stood up too quickly or the noble Lord stood up too slowly, but we got there at the same time.

This group of new clauses relates to primary carers in the criminal justice system, and first I thank the right reverend Prelate and noble Lords for tabling these amendments. I know they were proposed in a recent legislative scrutiny report on the Bill by the Joint Committee on Human Rights, and this topic has been an area of interest to the Joint Committee during this and previous Parliaments. As set out during debates on the Bill in the other place, the Government support the principle behind these amendments. I hope, therefore, I will be able to provide to the House the reassurance that the noble Lord, Lord Carlile of Berriew, asked for. I can assure the noble and learned Lord, Lord Falconer of Thoroton, that we do take these points very seriously. More generally, I can assure the noble Baroness, Lady Massey, that when it comes to our sentencing reforms, we do consider the impact on children. However, the reason the Government do not propose to accept these amendments is that they do not consider them to be necessary, for reasons I will seek to explain.

When sentencing or considering the grant of bail to a defendant who is a primary carer of a child or who is pregnant, courts will consider principles established in relevant case law. There is a wealth of case law on this point. We have heard the contribution from the noble and learned Lord, Lord Thomas of Cwmgiedd, and I am reluctant to get into the details of criminal law in his presence. But it can perhaps be conveniently found in a case called R v Petherick in 2012—let me give the reference for Hansard: “EWCA Crim 2214”.

In that case, a single mother with a boy of 16 months was convicted—she pleaded guilty—of causing death by dangerous driving and driving with excess alcohol. The court set out nine points of specific and clear guidance—nine principles—which had to be taken into account with regard to sentencing. If I may summarise those in a sentence or two with no disrespect to the court, they make clear that the aims of custody have to be balanced against the effect that a sentence can have on others. That is the case both with regard to sentencing and with regard to pretrial detention. When I say, “on others,” this point is not limited to children, as a number of contributions to this debate have highlighted—particularly those from my noble friend Lord Hailsham, the noble Baroness, Lady Jolly, and, again, the noble and learned Lord, Lord Thomas. It does have broader application, and the court will obviously want to consider the effect of custody or pretrial detention on others who are dependent on the person who might go to prison. This is a point, therefore, with more general application.

I have talked about sentencing and remand in custody. When it comes to sentencing, the principles I have just set out, in broad terms, are reflected in detailed sentencing guidelines issued by the independent Sentencing Council. Courts are required by law to follow those guidelines, and the guidelines specify that being a “Sole or primary carer for dependent relatives” is a mitigating factor when sentencing an offender. The effect, therefore, is that the fact that the primary carer is such can tip the scales. What would otherwise have been a proportionate sentence if it was a sentence to custody can, if the person is a primary carer, become disproportionate. It can tip the scales.

As we heard from my noble and learned friend Lord Garnier, to whom I am grateful for his kind words, recorders and judges give—to use his word—anxious consideration as to whether a custodial sentence is required. Again, the position in law can be summarised like this: a custodial sentence can be imposed only where the court is satisfied that an offence, or combination of offences, is so serious that neither a fine alone nor a community sentence can be justified. Even where a court is of the opinion that the seriousness of an offence would ordinarily warrant a custodial sentence, it still has discretion to impose a community sentence after taking into account wider considerations. Community sentences are part of the important background to this debate. I think we will come to them later on in the Bill and I look forward to the thorough endorsement of the noble Lord, Lord Marks, of our proposals on community sentences, given what he said in this debate. That is the position with regard to sentencing.

On defendants awaiting trial, there is a general right to bail unless it is necessary for the protection of the public or the delivery of justice that the defendant be remanded in custody. A defendant accused of an imprisonable offence can be refused bail only where there is specific justification for that refusal, as specified in legislation. A number of noble Lords talked about the information which is available to the court about the personal circumstances of the defendant. The bail information report includes information about the direct effects on an individual and any dependants, should they be remanded in custody.

With regard to pre-sentence reports, which were also mentioned, guidance was introduced in 2019 for probation practitioners, in addition to the legislation already in place, which sets out that a request to the court for an adjournment in order to prepare a pre-sentence report is considered mandatory in cases involving primary carers with responsibilities for children or other dependants, and for those at risk of custody. An aide-memoire highlighting key areas for practitioners to consider when assessing the diverse needs of women in the context of offending was also issued in 2019 to assist probation practitioners to prepare those pre-sentence reports on women. We are currently running a pilot in 15 magistrates’ courts that specifically targets female offenders, as well as two other cohorts which have specific needs, for fuller written pre-sentence reports.

The noble and learned Lord, Lord Falconer, spoke about the importance of the courts giving reasons why they were refusing bail, for example, or sentencing somebody to custody. That duty is, with respect, unnecessary to impose on courts because they are already required by law to state in open court their reasons for deciding on a sentence. Moreover, where there are dependent children, sentencing guidelines, as I have said, require the courts to consider the impact on them at various points in the sentencing process. That is the effect of Section 52(1) and (2) of the Sentencing Code.

I turn to data, about which the noble Baroness, Lady Massey, my noble and learned friend Lord Garnier and the noble Lord, Lord Bradley, made points. I underline the point again from the Dispatch Box that data is critical. My noble and learned friend was very kind, but the fact is that I am quite keen on data. I am not the only person in the Government who is, but I certainly am.

I assure the noble Baroness, Lady Massey, that we have already committed to improving our work on data collection concerning primary carers in prison. That work is already under way. We already collect information on parental responsibilities but the current questions do not identify dependent children of primary carers using the correct definitions. We are therefore making changes to the questions to enable us to identify prisoners with primary carer responsibilities on their entry to prison, and to enable access to that information centrally—a point made, I think, by the right reverend Prelate.

We are already looking at how we can deliver our commitment to improve national data collection through changes to what is called the basic custody screening tool. That is completed shortly after somebody goes into prison and we want to capture more robust and reliable data on parental responsibilities. Responding to earlier reports from the Joint Committee, the Government have committed to collecting more data centrally and using that to inform policy and improve our services for prisoners with primary caring responsibilities.

[Lord Falconer of Thoroton (Lab)]

The first report of the Joint Committee on Human Rights in 2021 details in section 2 the concern expressed by the committee in 2019 that there was no data about carers who were in prison. The Government gave an assurance that they would do something about it in 2019. The committee produced another report in 2020, saying “You’re still not collecting that material”, and a Minister gave another assurance. In 2021, the committee wrote a third report—this report, containing these suggestions—saying that none of the previous assurances has been complied with. Why should we accept the assurances the Minister is now giving in relation to the 2021 report, when all previous assurances given to that committee have not been complied with, as detailed by the committee in its report, and as the Ministry of Justice has not denied?

[Lord Wolfson of Tredegar (Con)]

Work still has to be done, of course, but I hope that the noble and learned Lord will accept that we are doing more than we have done before. As I have tried to explain, we have put in place a process to identify what we need to collect and how we are going to do it. One must also take into account—the noble Lord who made this point will forgive me for not remembering who did so—that it can be difficult to get this information from people in prison. Some people do not want to provide information about dependent children and others who rely on them. I am not using that as an excuse, but one has to be alive to that point as part of the data collection service. All I can say to the noble and learned Lord is that I have this firmly in my sights. In this part of the criminal justice system, as, I would say, in others, data is really important and I am certainly focused on it.

I was going to make one other point on data, which I hope the noble and learned Lord will be pleased to hear. We will also consider not just the collection of data but what data can be published. It might be that not all data we collect can be published because of confidentiality issues, but we will certainly ensure that we publish what we can.

[Lord Falconer of Thoroton (Lab)]

This is a separate point. Amendment 215 would require the court to

“make inquiries to establish whether the offender is a primary carer for a child”

and, if it discovers that the defendant is, to then order a pre-sentence report about the circumstances of that child and the impact. Is the Minister asserting that that provision is currently in the sentencing guidelines?

[Lord Wolfson of Tredegar (Con)]

I hope I made that clear earlier; let me go back to my notes. I do not want to mislead the noble and learned Lord. As I understand it, the position is this: guidance was introduced in 2019 for probation practitioners, in addition to the legislation in place, which sets out that a request to the court for an adjournment in order to prepare a pre-sentence report is considered mandatory in cases involving primary carers with responsibility for children or dependants. The noble and learned Lord shakes his head—

[Lord Falconer of Thoroton (Lab)]

I am not disputing what the Minister says, but I read him as saying that that position is not reflected in guidance. He is saying something different: that if somebody asks for an adjournment to make inquiries, one has to be granted. That is obviously different from the amendment.

[Lord Wolfson of Tredegar (Con)]

I was going to come to the detail of pre-sentence reports a little later. Let me come to that and if the question is still alive, I will give way again.

I think I had completed what I was going to say about data, apart from one point. The right reverend Prelate asked about pregnancy data. In the time I have had available, I have been able to get the following response, but I am obviously happy to continue the conversation. In July this year, we published a national figure—for the first time, as I understand it—for self-declared pregnancies in the women’s estate and the total number of births that took place during the period in three categories: prisons, transit and hospital. That is found in the HMPPS Annual Digest. I do not know whether that has fully answered the question from the right reverend Prelate on specific data. If it has not, I am very happy to continue the discussion.

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[Baroness Jones of Moulsecoomb (GP)]

My Lords, I rise to support these amendments. We are now getting into the stuff that I will fight tooth and nail over. As an archaeologist and activist, I feel that I have a little bit of insight into this whole situation and perhaps into the ridiculous law that the Government are trying to introduce here. Instead of debating and discussing it and coming to a sensible resolution, this is part of a battle in a culture war, which is absolutely ludicrous.

History is important, but it is not fixed. People like to think that we all know what it is and it is in all the books, but, actually, as an archaeologist, I know that we reinterpret it all the time and are constantly making new discoveries. Just in the last week or so, we found Roman statues in a totally unexpected place. This is what happens: we change our minds about history and it gets rewritten.

The problem is that we have some very ugly history, which is littered with powerful and wealthy white men who, behind a thin veneer of toffish respectability, did some quite nasty things and were responsible for atrocities such as the enslavement of millions of people, genocides, war crimes and the grabbing of wealth from some of the many nations that we now call “developing nations”. Our statues ignore this history and pretend that it was benign and that these were good guys, which is simply not true: they were slavers and pillagers, and we ought to recognise that. Having their so-called heroism set in stone is actually quite offensive. There is no hint in many of these statues that they did some evil deeds.

People—many members of the public—do not like this, and they are showing their dissatisfaction with celebrating people who really should not be celebrated. They raped and pillaged, and the fact that they then spent a lot of money on universities, libraries or parks does not really make it all all right. So the question of what we should do with these monuments is important, but not easy. It should force us to confront the evils within our history and reflect on how they carry through to the social and economic conditions of our present.

Instead of leading on this quite important dialogue, the Government simply storm in with a new criminal offence, which I find so ludicrous that I feel I ought to go and speak directly to the Home Secretary about it. They are trying to put their fingers in their ears, sing “Rule Britannia” and pretend that all of this did not happen and that it was all okay—but it was not. Councils all over the country and the Government have to realise that statues are not something that we cannot change or remove. The fact is that some of these statues celebrate evil deeds, and the Government should recognise that.

I have more to say, if noble Lords wish.

[Lord Falconer of Thoroton (Lab)]

I apologise for not standing up promptly—I was expecting the noble Baroness to say more. I will deal with two issues in relation to this group. First, I will deal with the points made by the noble Lord, Lord Paddick, in relation to what is in effect an increase in the penalty for certain sorts of criminal damage. We on this side completely understand that certain sorts of criminal damage—for example, to the gravestone of a much-revered and loved person—that cause very little financial damage nevertheless absolutely cut to the heart of a community or an individual. Our view is that it should be possible, in certain circumstances, for that to be dealt with somewhere other than a magistrates’ court.

This absolutely over-the-top provision is not necessary to ensure that something like that, which does merit a Crown Court trial, should be dealt with in the Crown Court. I would have thought that a much more targeted amendment could have dealt with that, but this, which deals with absolutely every sort of thing, is unnecessary. You do need a provision to make sure that protection is provided in relation to things that are deeply offensive, such as the desecration of a grave—but, beyond that, the law works, by and large.

I also agree that a lot of thought has gone into this, but there is practically nothing in the Bill—except for one or two increases in sentences for violence—that deals with the protection of women and girls. Instead, there has been this very complicated provision. But, as I say, we accept that it will be appropriate in certain cases to allow for a trial in the Crown Court.

Our Amendment 115, which comes after Clause 46, is designed to deal with a practical issue in relation to criminal damage: the effect of vandalism on safety equipment. This amendment was moved in the other place by Sarah Champion MP, and it reflects a campaign that has been run by Simon and Gaynor Haycock, whose son, Sam Haycock, went swimming in Ulley reservoir in Rotherham in May 2021, on the very day that he finished school, aged 16. He went to help a friend who was in trouble. At the reservoir, a throw line that has a safety belt on it, which you can throw into the water to try to assist someone, is behind a locked cupboard. You can access the throw line only by ringing 999 and getting a PIN number from the police in order to get the line out. The delay in getting the throw line out may well have had tragic consequences on this occasion. The reason that it is behind a locked door with a PIN number is because of the vandalism of safety equipment. I wonder whether the Government could spend their time focusing on something that has a practical effect, rather than engaging in rather divisive culture wars. I very much hope that the Minister will feel able to say something to help Simon and Gaynor Haycock in their campaign.

The amendment proposes that it is made a specific offence to intend

“to destroy or damage any property which is considered life-saving equipment, including life-belts, life jackets, or defibrillators.”

Of course, it would already be an offence to do that, but it matters a lot to indicate that this is something that the law regards with particular hostility because it costs lives, including the life of Sam Haycock. I very much hope that the Haycock family will hear good news from the Minister tonight.

--- Later in debate ---

[Lord Falconer of Thoroton (Lab)]

It is very helpful of the Minister to tell us what the law is—accurately, I am sure. I do not think it is well known that if you damage life-saving equipment, you might be falling foul of Section 1(2) of the Criminal Damage Act—that is, you might be recklessly endangering life—because generally you will not intend to do that. That is why it is important to have a provision that makes it clear in the Bill, because most people do not have the benefit of the noble Lord, Lord Wolfson, to tell them what the law is.

[Earl Attlee (Con)]

It seems pretty obvious that if you get hauled before the courts for damaging life-saving equipment, you are going to be in deep trouble. What you do not know is what the penalties are.

Police, Crime, Sentencing and Courts Bill

Lord Falconer of Thoroton Excerpts

Lords Hansard - part one & Committee stage
Wednesday 3rd November 2021 Lords Chamber

Moved by

[Lord Falconer of Thoroton]

125: After Clause 54, insert the following new Clause—
“Offence of pet theft
(1) The Animal Welfare Act 2006 is amended as follows.(2) After section 2 (“protected animal”) insert—“2A Definition of pet A protected animal is a “pet” for the purposes of this Act if it provides companionship or assistance to any human being.”(3) After section 8 (fighting etc.) insert—“8A Pet theftA person commits an offence if they dishonestly appropriate a pet belonging to another person with the intention of permanently depriving that other person of it.”(4) In section 32 (imprisonment or fine) before subsection (1) insert—“(A1) A person guilty of an offence under section 8A (pet theft) (as inserted by section (Offence of pet theft) of the Police, Crime, Sentencing and Courts Act 2021) shall be liable—(a) on summary conviction to imprisonment for a term not exceeding 51 weeks, or a fine, or to both;(b) on conviction on indictment to imprisonment for a term not exceeding 4 years, or to a fine, or to both.(A2) When the court is considering for the purposes of sentencing the seriousness of an offence under section 8A it must consider the following as aggravating factors (that is to say, a factor that increases the seriousness of the offence)—(a) the theft caused fear, alarm or distress to the pet, the owner or the pet or another person associated with the pet;(b) the theft was for the purposes of commercial gain.”(5) In section 34(10) (disqualification) after “8,” insert “8A,”.”Member’s explanatory statement
Combined with two other proposed amendments after Clause 54, this new clause seeks to create a new offence of pet theft.

[Lord Falconer of Thoroton (Lab)]

My Lords, I approach our deliberations in this Committee with some degree of despondency today. We are addressing the rule of law in this; we are, in effect, saying that the law is not being sufficiently complied with in order to get better compliance with the law for our citizens. The key aspect of the rule of law is that it applies to everybody. Approximately 45 minutes ago, in the other place, as a result of a government-whipped vote, somebody who had been found guilty of a breach of the conduct obligations of the House of Commons was, in effect, let off. The Government used their majority to let him off. It is very difficult for the citizens of this country to take Parliament seriously as an enforcer of the rule of law if the position is that, when one of the Government’s own looks like they are in trouble, they use their majority to let them off. The whole point about a code of conduct enforced independently is that it applies to whatever political party you are in. I look at these deliberations in Parliament, therefore, with a degree of real, personal despair. It is about much more than simply the conduct of the Government: it is about how the public will view Parliament.

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[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)]

My Lords, I rise to respond to an amendment about pet theft, but I will start by saying a few words about amendment theft. The noble and learned Lord, Lord Falconer, stole some of the Committee’s time to give us a lecture about the rule of law. I regard the rule of law as a matter of supreme importance, but let us remember what it is and is not.

First, it is not a law; it is a constitutional principle. Secondly, we can have a debate about the scope of the rule of law. The rule of law as adumbrated by Lord Bingham, for example, has a different scope from that set out by Lord Justice Laws in his book; there are different views as to the breadth of the rule of law. But everybody agrees that one has to abide by the law as set out by a court. There was no court in the circumstances set out by the noble and learned Lord. The only court involved is the court of Parliament and, with great respect, the other place was quite within its rights both legally and, I suggest, morally to set out its own procedures.

[Lord Falconer of Thoroton (Lab)]

Do I understand the Government’s position to be that there is no element of the rule of law engaged in complying with the court of Parliament, and in particular the requirements of Parliament?

[Lord Wolfson of Tredegar (Con)]

What happened today was Parliament complying with the rules of Parliament, because ultimately Parliament regulates itself. That is how it works. The phrase “rule of law” in the normal sense means a Government or an Executive abiding by the rule of a court. The only relevant court here is the court of Parliament.

However, I now turn to pet theft. I am sure we will come back to the rule of law, and perhaps the human rights issues, when we discuss the Judicial Review and Courts Bill. On pet theft, I thank the noble and learned Lord for tabling this amendment. As he set out, on this point there is actually very little between us. The topic of pet theft caused some consternation in the other place, and—again I agree with the noble and learned Lord on this—quite rightly so. Pets should not be seen as just property; that is at the heart of this issue. Pets are cherished members of the family, so it is right that we take time to consider, as the Government are doing, what measures we can and should take to tackle this abhorrent behaviour.

The Government’s Pet Theft Taskforce reported on its findings in September. It recommended a number of measures to address this crime, including a new offence of pet abduction. Your Lordships might ask why we should create such an offence when a simple pet theft offence might suffice. In that regard, I note that the noble and learned Lord’s amendment in large part mirrors the wording in the Theft Act 1968. However, I suggest to the Committee that we need to reconsider how pets are treated in law, because they are not just possessions or chattels. Therefore, I respectfully suggest that the wording of the Theft Act is inapt; it does not encompass the issue sufficiently. As the noble Baroness, Lady Bakewell of Hardington Mandeville, set out, that is particularly the case now we have seen so many cases of pet theft during the Covid period. We recognise that animals should therefore be treated as more than property. We are already bringing forward legislation to crack down on puppy smuggling and other cruel crimes, and I hear the points made by the noble and gallant Lord, Lord Craig of Radley, and my noble friend Lord Attlee.

In the new offence of pet abduction, we will seek to bring into focus not merely the taking of a piece of property or a chattel but the impact on the animal and its welfare when a stranger takes a pet away from its carer. This new offence, alongside the other recommendations from the task force, will make it harder for thieves to abduct and sell pets, make it easier for the police to catch them, and ensure that any welfare concerns can be appropriately reflected in the punishment given to offenders.

I will pick up two shorter and, I accept, more minor points which are relevant to this issue. First, the noble and learned Lord’s consequential amendment expands the scope of Section 17 powers under PACE. That section allows a constable to enter and search premises for the purpose of arresting a person for specified offences, and the amendment would include the new pet theft offence in that. We suggest that this is unnecessary. Because the amendment proposes to make the offence triable either way, the Section 17 powers would already be available.

Secondly, the noble and learned Lord has tabled an amendment in respect of Scotland. The Committee will be aware that crime and justice are devolved. Therefore, it would be for the Scottish Government and Scottish Parliament to consider whether they wanted a specific offence under the distinct operation of Scots law.

Coming back to the main issue, the Government have announced that they will take appropriate action. I am afraid I cannot put a date on that today, but I hear the strength of feeling on this issue. The Government have made their intentions clear, and I hope that, whatever future debates we may have on the rule of law, the noble and learned Lord will withdraw his amendment.

[Lord Falconer of Thoroton (Lab)]

Are the Government intending to table an amendment to this Bill to deal with pet theft?

[Lord Wolfson of Tredegar (Con)]

I cannot commit to that, but, as I say, I have heard the strength of feeling and what the noble and learned Lord has said on this topic. I am sure we can have future discussions on this point.

--- Later in debate ---

[Lord Falconer of Thoroton (Lab)]

My Lords, I am very grateful to everybody who has spoken in the debate, with considerable force. There was a universal view around the Committee. I am disappointed to hear that there appears to be a retreat from what was promised in the Commons. I am grateful to the Minister for the points he made on my amendments, which we will take into account when we bring them back on Report. I anticipate that if he does not, we will, and will almost certainly seek the opinion of the House in relation to it.

On the broader point, I am absolutely amazed that the Minister thought that killing off the tribunal when one your friends had been found guilty by it was not a breach of the rule of law. I beg leave to withdraw the amendment.

Amendment 125 withdrawn.

--- Later in debate ---

However, this is not a health debate, but a police Bill debate. I am totally in support of the amendment that will stop this abominable voyeurism.

[Lord Falconer of Thoroton (Lab)]

My Lords, we have witnessed a rather remarkable half an hour in the House where an overwhelming case was made. I pay a special tribute to the noble Baroness, Lady Hayman. I thought her case was overwhelming until I heard the noble Baronesses, Lady Brinton and Lady Cumberlege. I then thought, “Goodness me, there are more reasons than those which the noble Baroness, Lady Hayman, has given.” My mind then moved to the possibility of legal difficulties and whoosh, the noble Lord, Lord Pannick, came in and dealt with them all.

What is the reason for not doing this? The noble Lord, Lord Pannick, gave two possible reasons. He dealt with what might be the arguments in relation to the breadth of the amendment, and I completely agree, but if the Government have some good reasons for why this amendment should be changed, I am sure that the House will deal with them. The other reason given was the Law Commission. As the person responsible for the Law Commission over a long period of time, over 50% of its reports never see the light of day. It takes a long time to get there.

I ask myself another question. Can you imagine any provision or suggestion that the Law Commission would make which would cut across this amendment? I cannot. I would expect the noble Lord—sadly not the noble and learned Lord—the Minister, to give reasons why this will not happen, because like the noble Baroness, Lady Cumberlege, I was encouraged by the extract that she read of what sounded to be an incredibly understanding speech by Victoria Atkins in the other place, which was then dashed. The Law Commission is manifestly not a legitimate excuse. It should be treated with utter contempt if it is advanced as a reason. From the point of view of the Government, the work has been done by the campaigners, Stella Creasy and the crack squad of amenders that we have just heard from, so it costs the Government nothing to put it into the Bill. There will be some additional costs to the criminal justice system, and the police will deal with a number of cases, though I suspect not many, so there is not much public expenditure. The question for the Minister is: why not?

[Lord Wolfson of Tredegar (Con)]

My Lords, my noble friend Lord Attlee indicated that I should come along quietly. I am not going to do that; however, I hope that I will come along realistically and clearly in setting out the Government’s position. There is no dispute in this Committee that the behaviour we are talking about is absolutely abominable and indefensible. I therefore appreciate why a proposed new clause on this distressing subject of breastfeeding voyeurism has been tabled for debate. I start by expressing my unequivocal support for the mothers who have experienced this sort of appalling behaviour.

As the noble and learned Lord, Lord Falconer, said, we have heard a number of really outstanding speeches, some of which were very personal in terms of people’s history and families. I respectfully endorse the point made by the noble Baronesses, Lady Hayman and Lady Brinton, that this is not just a matter of protecting privacy or preventing distress; it is also important because we want to promote the very real benefits of breastfeeding. I take all the points made in that regard on board; I also take on board the point made by the noble Baroness, Lady Jolly, on the bonding time—the quiet time, if I can put it that way—that breastfeeding provides. On whether breastfeeding also benefits fathers because we do not have to get up at night, on that I will—if, as a Minister in a UK Government, I am allowed to dip into a foreign legal system for a moment—plead the fifth amendment.

To pick up a point made by the noble Baroness, Lady Hayman, I assure the Committee that, depending on the specific circumstances, it may be possible—I underline “may” because I accept that it will not be possible in all circumstances—to capture this sort of disgusting behaviour under some existing offences, including public order offences and offences dealing with harassment and stalking, along with the common-law offence of outraging public decency. However, this is not a complete answer; I do not put it forward as such. We recognise that the law in this area is not always clear, and that consideration should be given to improving it. That is why we asked the Law Commission to review the law around the taking, making and sharing of intimate images without consent, to identify whether there are any gaps—or, rather, what the gaps are—in the scope of protection already offered to victims. The review looked specifically at voyeurism offences and non-consensual photography in public places, including whether the recording and sharing of images of breastfeeding should be included in the scope of “intimate” images for the purposes of any reformed criminal law.

However, a change in the law here will not be straightforward. I will explain why in a moment. With an amendment such as the one moved by the noble Baroness, there may be a variety of situations in which it is still not an offence to take a picture of a person breastfeeding. That is why the Law Commission’s review is looking into intent, the definition of “image” and other circumstances relevant to this issue. As the Committee is already aware, the Law Commission’s work has gone at some pace. It obviously has an important eye for detail; that is why it is there. It intends to publish its recommendations by the spring of next year, so we are certainly not trying to kick this ball into the long grass. We are proactively considering what more can be done to tackle this behaviour and protect mothers now, ahead of the Law Commission’s recommendations for reform of the law in this area.

However, I respectfully disagree with the noble Baroness, Lady Hayman, that this issue is clearly defined in her amendment. I want to pick up on the point made by the noble Lord, Lord Pannick, if I may; we have had the benefit of some discussions. A number of points look like drafting points but are not, because they really go to the question of the scope of the proposed amendment and what it is seeking to encompass. Let me give a couple of examples, without turning the Committee into a legislative drafting session. Here is example A; I will try to use the initials from the amendment. A takes a photo of his wife, partner or girlfriend on a beach in her bikini, intending to use that image for his own sexual gratification. Another woman, B, is on the same beach, breastfeeding her baby, and is unintentionally caught by A in the picture. I heard what the noble Lord, Lord Pannick, said, but I respectfully suggest that this would be caught by the proposed amendment. A would have no defence as, first, he intended the picture for sexual gratification and recorded the image for that purpose. Secondly, he would have no defence of consent by B because B did not consent. A would also not be able to have the second defence of reasonably believing that she was giving consent because he had no idea at all that she was in the picture.

That is one example, but this goes further than drafting. Let us say that A was aware that B was caught in the background of the photo but was not aware that she was breastfeeding. Again, A would not be able to say that B had consented or that he reasonably believed that she had consented. Further, would an image of someone breastfeeding that did not actually include the act of breastfeeding—for example, a photograph capturing only a breastfeeding mother’s face—be captured under this amendment? What parts of the body, if I can put it that way, would we require the image to capture? As the noble Baroness, Lady Brinton, explained, this is different from the upskirting offence because the law there condescends to particular parts of the body that must be captured in a photo. Would we wish to capture images taken of breastfeeding regardless of whether it is in a private, semi-private or public setting?

I underline to the Committee that I do not raise these matters as drafting points or to be difficult. On the contrary, it is because this issue is so important that we must get the nature, boundaries and scope of the offence absolutely correct.

[Lord Pannick (CB)]

Does the Minister accept that his second potential problem would easily be dealt with by a drafting amendment to make it clear that the offence relates to a photograph or video of a breast? It would not be difficult to draft that. In relation to his first concern, which, as I understood it, was that if someone takes a photo of their wife or girlfriend breastfeeding for the purpose of sexual gratification and there is some other woman in the background—oh, I am sorry, have I misunderstood?

[Lord Falconer of Thoroton (Lab)]

Before the Minister answers that question, does he not also agree that we have perhaps seven or eight weeks before we get to Report, so the pettifogging points he is making could plainly be dealt with if we all sat round a table and agreed a draft?

[Lord Wolfson of Tredegar (Con)]

In drafting legislation, the first thing we need to do is make sure that we agree on the nature and scope of the amendment. I have tried to make it clear that I am not putting these points forward as pettifogging points of drafting. There are important points underlining this about what we want the amendment to cover. I do not know whether the noble Lord, Lord Pannick, was about to rise again; should I give him an opportunity to do so?

Police, Crime, Sentencing and Courts Bill

Lord Falconer of Thoroton Excerpts

Lords Hansard - part one & Committee stage
Monday 8th November 2021 Lords Chamber

I considered whether Amendment 155 in the names of the noble and learned Lord, Lord Hope, and my noble friend Lady Randerson would address the problem with Clause 66 by redefining “careless driving” for the purposes of this offence, by referring to the foreseeability of serious injury. We are back to Caldwell: does foreseeability play any part in it? I do not think so. Not only would that introduce an intermediate standard of driving—a kind of “careless driving plus”—which would be unnecessary, but it would be unjust. When a driver emerges from a private drive or a side road into the path of an oncoming vehicle entirely by mistake and is involved in an accident, whether or not there is serious injury is just chance. It is obvious to anyone that pulling out into the road in the path of another car is likely to cause serious injury, so a conviction of a Clause 66 offence, even as amended, would follow. Should such an offence be imprisonable? In my view, no. The only way to achieve a just result is to remove Clause 66 entirely from the Bill.

[Lord Falconer of Thoroton (Lab)]

The noble Lord has made a very interesting speech, but is it right that negligence and the harm that it does cannot be reflected in imprisonment for any criminal offence? What is the position in relation to health and safety at work? My understanding of the law is that once someone is convicted of what is in effect negligence in relation to providing conditions at work, the court can take such matters into account—for example, if they were negligent and someone lost an eye, that would increase the penalty, and imprisonment would be a possibility. I might be wrong about that.

[Lord Thomas of Gresford (LD)]

That is an interesting point. Manslaughter can obviously be by negligence.

[Lord Falconer of Thoroton (Lab)]

Gross negligence.

[Lord Thomas of Gresford (LD)]

Gross negligence, yes—although it is interesting that the word “gross” is put before it. But these are different offences, and it may be that I should confine my criticism to the road traffic situation and not extend it as a general principle of English law.

Police, Crime, Sentencing and Courts Bill

Lord Falconer of Thoroton Excerpts

Lords Hansard - part two & Committee stage
Monday 8th November 2021 Lords Chamber

Moved by

[Lord Falconer of Thoroton]

169D: Clause 77, page 72, line 31, at end insert—
“(6A) Before this section (other than this subsection) may be commenced the Secretary of State must by regulations amend subsection (6) to list all excluded offences on the face of the Act.(6B) The Secretary of State may by regulations amend the list of excluded offences.”Member’s explanatory statement
This, along with another probing amendment to Clause 99 in the name of Lord Falconer of Thoroton, would list the excluded offences on the face of the Bill.

[Lord Falconer of Thoroton (Lab)]

We move to Part 6 of the Bill, which is important. It creates two new types of caution: diversionary cautions and community cautions. These are described by the Government as

“the least onerous types of disposal a person can obtain for offending.”

Both types of caution must have one or more conditions attached to them. These can include requirements to do unpaid work, attend a specified place for a specified purpose, and pay a financial penalty.

This is an important part of the Bill. We are reaching this stage of the debate at 11.12 pm, which is one hour and 12 minutes after our normal stopping time. We have, I am very happy to say, the noble Baroness, Lady Finlay of Llandaff, in the Chair, but she is not permitted to speak on issues; she may only call speakers and announce whatever the Motion may be. There is not one Cross-Bencher here, apart from the noble Baroness. There is only one Back-Bencher here for this debate on the introduction of two important new measures into the criminal justice system. It is a mockery of proper consideration.

The proper way for the Government to deal with this is not by extending the debating hours to a point where very few noble Lords take part. They should instead make extra days available. That is the consequence of having a Bill like this, which lays open to debate the whole criminal justice system. We should not do this. I understand that it is proposed that on Wednesday the Committee sit for another three hours beyond its normal stopping time. If the Government wish to hold the reputation of the House up for scrutiny, they should not do this; they should make proper arrangements.

Turning to the amendment itself, the first group we deal with in Part 6 relates to the delegated powers. I remind the Committee, which has been told this on a number of occasions, that the Delegated Powers and Regulatory Reform Committee took a very unfavourable view of this.

--- Later in debate ---

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)]

Just for the record, and because the officials have worked extremely hard, I have a WhatsApp group with them. In fact, I have been doing all this work without officials there. They are on the ball; they are online; they are providing assistance.

[Lord Falconer of Thoroton (Lab)]

I am very glad to hear that. It is the first time in my experience—and I am not complaining, because the officials have worked incredibly hard on this—that the Box is entirely without officials.

To go back to the debate about delegated powers, this is what the Delegated Powers Committee said in general about this:

“We are particularly concerned that the Bill would … allow Ministers—and even a non-statutory body—to influence the exercise of new police powers (including in relation to unauthorised traveller encampments and stop and search) through ‘guidance’ that is not subject to Parliamentary scrutiny; … leave to regulations key aspects of new police powers—to restrict protest and to extract confidential information from electronic devices—that should instead be on the face of the Bill; and …allow the imposition of statutory duties via the novel concept of ‘strategy’ documents that need not even be published … We are disappointed that the inclusion of these types of delegations of power—on flimsy grounds—suggests that the Government have failed when preparing this Bill to give serious consideration to recommendations that we have made in recent reports on other Bills.”


In relation to this group of amendments, the committee makes complaint about three sets of delegations. The first is in relation to what could be suitable for community cautions. As I indicated, community cautions are for less serious offences. The Bill provides that they cannot be given for the most serious, indictable-only offences, but it gives the Secretary of State power to determine by affirmative procedure regulations the other offences for which they cannot be given.

The Government put forward a memorandum to justify this approach which said as follows:

“The list of offences which may not be suitable for”—


a community caution—

“is likely to change regularly”

and

“will be subject to continual updating and changing which makes it more suitable for secondary legislation”.

The Delegated Powers Committee report states:

“The Memorandum acknowledges that excluding offences from a community caution disposal ‘will have a significant impact on offenders, victims and the public’. It states that the affirmative procedure ‘is considered appropriate as it enables Parliament to debate the details of the restrictions [on community cautions]’.”


The Delegated Powers Committee report says that the Government are relying on a comparison with Section 130 of the Sexual Offences Act 2003 and then establishes, clearly rightly, that comparison with that Act is misguided and wrong. It says that the Government should follow the 2003 Act, but accurately and not inaccurately. What the Sexual Offences Act 2003 does is put in the Bill the excluded offences but gives power for them to be amended from time to time. Our amendments would follow the Delegated Powers Committee’s recommendations. I hope that the Government will feel able to accept that. If the noble Lord could indicate that, it would shorten that bit of it—sadly not.

The next group of problems is the conditions that are attached to a caution. A diversionary caution or a community caution must have one or more conditions attached to it. These can include requirements to carry out unpaid work, to attend a specified place for a specified purpose, and to pay a financial penalty. The complaint that the Delegated Powers Committee makes about this is that you need only the affirmative procedure where you are increasing the penalties but not when you are decreasing them.

The Delegated Powers Committee report says:

“We consider that the Government’s justification for its approach”—


applying only when penalties are increasing and not when they are decreasing—

“is flawed because it focusses solely on the impact of increases or decreases on the rights of offenders and on operational resources and fails to take into account the significant effect that decreases are capable of having on the way in which the policy works—and that making the new cautions less onerous forms of disposal may be something about which stakeholders (including victims of crime) and members of both Houses may have legitimate concerns.”

Again, we agree with that. The committee continues at paragraph 75:

“Accordingly, we consider that both increases and decreases in the maximum number of hours of unpaid work or attendance, or the maximum financial penalty, that may be attached to a diversionary caution or a community caution merit the same level of scrutiny”.


That is simply to quote what the Delegated Powers Committee says.

The final group relates to Clause 129 and Schedule 13, which gives the courts power

“to review community and suspended sentence orders, and … to commit an offender to custody for breach of”

such orders. The memorandum that the Government presented to the committee says that

“the aim… is to improve offender compliance with community orders and suspended sentence orders and to reduce reoffending. This is achieved through a multi-agency approach with links to wider support services, one element of which is providing for close oversight by a court of particular sentences being served in the community”.

The intention is to pilot for an initial 18-month period, and that may be applied to different cohorts throughout the country.

The committee report points out:

“The Secretary of State is given power to specify, by negative procedure … categories of community orders and suspended sentence orders that qualify for the review process”—


and it sets out certain things they can take into account in relation to it. The report continues:

“Where regulations specify a category for the first time, there must be an initial pilot period of 18 months … Both regulations that specify a category for the purposes of a pilot … are subject to the negative procedure … The Government’s justification for this is that ‘the principle of the provisions is made clear on the face of the legislation, and the power is limited by the legislation such that it may only be used to apply the provisions to different courts and cohorts of offenders … These matters are administrative in nature’.”


That is what the Government said in their memorandum.

The Delegated Powers Committee disagreed with that, saying that

“the categories of persons and the offences to which the review process will apply go to the heart of the underlying policy. The power gives the Secretary of State maximum discretion … but with minimal scrutiny … We therefore consider that regulations that provide for a category of community orders or suspended sentence orders to be subject to the review process on an indefinite basis should be subject to the affirmative procedure.”

That is what our third set of amendments does in relation to that.

I apologise for taking so long to go through this, but these are important issues.

[Lord Paddick (LD)]

My Lords, I agree with the noble and learned Lord about the importance of this part of the Bill. Although the noble and learned Lord has just apologised for the length of his opening remarks on this group, I must warn the Committee that that was nothing compared with my opening remarks on the next group, if the Government wish to go there this evening.

The noble and learned Lord, Lord Falconer of Thoroton, is right to demand that the list of excluded offences for which the police cannot give a community caution is in the Bill. This is yet another example of why this Bill is a shell, lacking in sufficient detail for noble Lords to give their consent to it. The Delegated Powers Committee agrees, as the noble and learned Lord has said.

He is also right that any changes to the maximum number of hours of unpaid work or attendance, or the maximum financial penalty that may be attached to a diversionary or community caution, should at least be subject to the affirmative resolution. But as the noble and learned Lord has said on previous groups, the House still has no ability to amend such an order. I will have more to say on that issue in a later group. Again, the Delegated Powers Committee agrees, as the noble and learned Lord has said.

Amendment 214B is about community orders and suspended sentence orders, and has, as far as I understand it, nothing to do with police cautions—I look for reassurance. I have no idea why it is in this group of amendments, other than that it is also covered by the Delegated Powers Committee’s report. I have no doubt that the noble and learned Lord is absolutely right about that as well, and the Delegated Power Committee agrees.

We support these amendments, mostly because they are right, and, in the case of Amendment 214B, because the noble and learned Lord is usually right.

[Lord Wolfson of Tredegar (Con)]

My Lords, I recognise that this group of amendments in the name of the noble and learned Lord, Lord Falconer of Thoroton, has come about because of recommendations from the Delegated Powers and Regulatory Reform Committee in its sixth report of the Session. It is a pleasure to discuss this matter, even at this hour. As to timing issues, I am sure the noble and learned Lord knows better than me with whom to take that matter up; I am not sure I am the correct post box for that.

I can assure the Committee that, even as the noble and learned Lord was speaking, I received a WhatsApp—I am not waiving privilege on all my WhatsApp messages—from the Bill team: “To reassure, we are here.” The team cannot answer back, but I can. I regret the way that the team’s their work ethic was impugned, unintentionally, I am sure.

[Lord Falconer of Thoroton (Lab)]

I made it absolutely clear that I was not for one moment impugning the Bill team’s work ethic. I was saying, quite legitimately, that they are not here because it is so late at night. My learned friend the Minister makes a poor point in suggesting that I was impugning them. I have nothing but the greatest admiration for that Bill team, and he should not try to distract attention from the problems of debating this at this time of night with a remark like that.

[Lord Wolfson of Tredegar]

It has nothing to do with the hour. On every Bill I have done, I have had the Bill team on WhatsApp, whether it was the Domestic Abuse Bill at 3 pm or this Bill at 11.29 pm. The fact they are on WhatsApp and I deal with them remotely has nothing to do with the hour.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

We can move on. We do not need to raise the temperature at 11.30 pm. We have other things to argue about.

Let us get to the substance of this. The committee proposed a number of changes relating to the cautions and problem-solving courts measures in the Bill, as elaborated by the noble and learned Lord and the noble Lord, Lord Paddick. I shall make the central point that I want to make, because it goes to all the points that have been put down. I can assure the Committee, and in particular the noble and learned Lord, that the Government are looking at all the committee’s recommendations, which underpin these amendments, as part of our wider response to the committee, and we will revert to it in due course. I therefore hope that as time goes on, if I can put it that way, these issues will be highlighted, and I hope resolved to the noble and learned Lord’s satisfaction, but, if not, we can continue to discuss them.

I shall highlight just one matter, because I want to leave time for the noble Lord, Lord Paddick, to give us his full oration on the next group, if we have time for it. On Amendment 169D, on excluded offences in respect of community cautions, the committee, as the noble and learned Lord explained, recommended that these offences are listed in the Bill rather than set out in regulations. As he explained, regulations would then be made where further amendments became necessary.

With respect to the committee, we maintain the position that the offences that are to be excluded for the purposes of community cautions are to be made by regulations. We point out that this approach of using regulations to identify excluded offences mirrors the approach taken in the Criminal Justice and Courts Act 2015, which sets out that the simple caution, if I can call it that, may not be used in respect to offences specified by order made by the Secretary of State by secondary legislation. Just as there, so also here we believe that secondary legislation is the appropriate place for setting out the list of excluded offences, as the level of detail required may not be appropriate or suitable for the Bill. We suggest that that approach also allows sufficient time for essential engagement with stakeholders to identify those offences and to enable future changes to be incorporated without primary legislation.

I point out that the secondary legislation that we are talking about here is subject to the affirmative procedure, so the transparency that comes with that procedure will be maintained. I suggest that it would be a little bit clumsy and rare to use primary legislation for what has to be a fairly flexible approach to listing offences that should not be cautioned. We will of course discuss this carefully with stakeholders. The aim will be to bring an SI to Parliament that will be acceptable. I apprehend that I have not responded to the underlying point made by the noble and learned Lord, because I said that we will respond to the committee, but I hope he understands the thrust of my response and that for present purposes he is able to withdraw the amendment.

[Lord Falconer of Thoroton (Lab)]

First, in the light of the evidence given by the noble Lord, Lord Paddick, I unreservedly withdraw the suggestion that we are in any way disadvantaged by the officials not being in the Box. I thank the noble Lord, Lord Paddick, for bringing that to our attention.

What a disappointing response that was on the substance. First, I am grateful to the noble Lord, Lord Wolfson, for saying that there might be something more coming, although he did not indicate what that might be. We have had the report since September. Why has it taken so long to get to this? Secondly, in relation to the point which the noble Lord, Lord Wolfson, did address—about the offences that would be excluded from community cautions—the Delegated Powers Committee is saying, “Put your initial cut in the Bill”.

The noble Lord, Lord Wolfson, gave no reason why that was not to be done. He referred to the 2015 Act to which the Government had not referred when they put their memorandum to the Committee. I have not had a chance to look at the 2015 Act. It has only been mentioned now. Changing defence, as the noble Lord is doing, is always an indication of shambles on the part of the Government. What is the reason for not giving the Commons and the Lords the opportunity to debate the initial cut? It does not make the Bill too cluttered. It would not add much more than half a page. It is a ridiculous defence.

I hope that the Minister will have the time to think about it for when he comes back with the Ministry of Justice’s conclusions on this absolutely damning Delegated Powers Committee report. I beg leave to withdraw my amendment.

Amendment 169D withdrawn.

--- Later in debate ---

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I want to say something from the Back Benches about my experience of sitting on scrutiny committees, which the noble Lord has just spoken about. I have sat on scrutiny committees for reviewing out of court disposals for both the British Transport Police and the Metropolitan Police. In my experience, they are good committees because they bring together a range of interested parties on whether out of court disposals are appropriate—magistrates, probation, CPS, police, YOTs and sometimes, in addition, there may be housing, education and health people from local government to review the appropriateness of out of court disposals.

In my experience, this system is extremely erratic and not systemised in any particular way. My experience is that the results of reviewing out of court disposals are not fed up through the Home Office, so when I have asked questions of both the MoJ and the Home Office, there is no way of reviewing whether out of court disposals have been appropriately used or of collating the numbers, because the use of scrutiny committees varies so much across the country—that is my understanding. I was interested to listen to the noble Lord, Lord Paddick, talk about the amendment tabled by the noble and learned Lord, Lord Thomas, and whether he is trying to introduce a code of practice to try to regularise these out of court disposal scrutiny committees. They are a good idea, but they need to be standardised across the country.

[Lord Falconer of Thoroton (Lab)]

I am very much obliged to my noble friend Lord Ponsonby of Shulbrede for that intervention, which goes to an incredibly important point raised by the noble Lord, Lord Paddick, and the noble and learned Lord, Lord Thomas of Cwmgiedd, which is that there needs to be proper scrutiny of the police being given a power to, in effect, punish people and impose conditions. There are two aspects to that, which the noble and learned Lord identified in his speech, so beautifully read by the noble Lord, Lord Paddick, even though it is so late: first, that the code of practice is complied with and, secondly, that there is consistency throughout the country in relation to the application of out of court disposals. I would be very interested to hear what the Minister has to say on how that point will be dealt with. We support the amendment proposed by the noble and learned Lord, Lord Thomas of Cwmgiedd.

I also agree with Amendments 170, 171 and 190, which seek to ensure that a person may be authorised to give a discretionary or community caution only if they have been authorised by a prosecuting authority for those purposes and a prosecuting authority must be satisfied that that person has received adequate training and is suitable to carry out those functions. Amendment 190 is a consequential amendment on that. I support these amendments and am very interested to hear what the Ministry of Justice has to say about them. I cannot think that it would not agree with this; some level of quality must be required for somebody who is going to give that caution.

Finally, the noble Lord, Lord Paddick, made points to the effect that this will be more expensive. He did not mention, because he is too kind—or he may have done, but I missed it—the additional £13 million that the Commons paper identifies for the cost of introduction, in addition to the £105 million and £15 million. We are going to spend all this money to achieve no greater victim satisfaction and without any evidence that it reduces reoffending. Why?

[Lord Wolfson of Tredegar (Con)]

My Lords, the amendments we are talking to cover a little area and I will take them in turn if I may. I start with Amendments 170, 171 and 190. They remove the authority of a constable or investigating officer to be able to give a diversionary or community caution and in turn propose a set of preconditions that require that a prosecution authority be satisfied of the suitability, capability and training of a person before they are designated to issue a diversionary or community caution.

The position at the moment is that cautioning is mostly but not, it is fair to say, exclusively carried out by police constables. Cautioning by police dates back nearly 100 years and the police have become experienced in the application and use of cautions. At the moment, there are statutory restrictions around the use of simple cautions by the police and an existing statutory framework for their use of conditional cautions.

The framework provides a role for the DPP to authorise the use of cautions in particular circumstances. Police and prosecutors share responsibility for dealing with out of court disposals. The noble Lord, Lord Paddick, already knows this, but where police decide that an indictable-only offence should be dealt with by means of an out of court disposal, the case must be referred to a prosecutor to determine whether there is sufficient evidence for a realistic prospect of conviction and that it is in the public interest to deal with the case in this way.

These clauses do not change the approach set out in the director’s guidance and we believe this provides a necessary safeguard to the use of cautions for more serious offences. We believe that the police should be empowered as professional decision-makers, while being given clear statutory guidance as to the use of cautions. The question of the adequacy of training to fulfil those functions, which underpins these amendments, is really one for the policing authorities.

In that regard, coming to the point made by the noble and learned Lord, Lord Falconer of Thoroton, we believe that the code of practice is the appropriate place to set out any safeguards, checks and balances that should be in place before any caution under the new two-tier framework is given.

[Lord Falconer of Thoroton (Lab)]

What is the method of scrutiny of that code of practice by Parliament?

[Lord Wolfson of Tredegar (Con)]

I will come to that point. I will try to answer that question, but if I do not, I know the noble and learned Lord will remind me. However, I think I will come to it. I was just making the point that there will be safeguards, checks and balances under the new two-tier framework, an example of which may be a review by an officer of a higher rank before a decision to issue a caution is made.

Police, Crime, Sentencing and Courts Bill

Lord Falconer of Thoroton Excerpts

Lords Hansard - part two & Committee stage
Wednesday 10th November 2021 Lords Chamber

Moved by

[Lord Falconer of Thoroton]

195: After Clause 101, insert the following new Clause—
“Minimum sentence for an offence under section 1 of the Sexual Offences Act 2003
(1) This section applies where—(a) an individual is convicted of an offence under section 1 of the Sexual Offences Act 2003, and(b) the offence was committed after the commencement of this section and at a time when the individual was aged 18 or over.(2) The court shall impose an appropriate custodial sentence (or order for detention) for a term of at least the required minimum term (with or without a fine) unless the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify it not doing so.(3) In this section “appropriate custodial sentence (or order for detention)” means—(a) in the case of an offender who is aged 18 or over when convicted, a sentence of imprisonment, and(b) in the case of an offender who is aged under 18 at that time, a sentence of detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000. (4) In this section “the required minimum term” means seven years.”Member’s explanatory statement
This amendment would ensure those found guilty of abduction, sexual assault, and murder would receive a Whole Life Order as a starting sentence.

[Lord Falconer of Thoroton (Lab)]

My Lords, this group contains three amendments in my name, and a Clause 103 stand part debate in the names of my noble friend Lady Massey and the noble and right reverend Prelate the Bishop of Derby, neither of whom appears to be here at the moment. The amendments fall into two categories, but I make no complaint about them being grouped together. Amendments 195, 196 and 197 are based on the deep concern on this side of the Committee that the Government have not done enough in the Bill to mark their animosity to violence against women and girls.

Amendment 195 proposes a minimum sentence for an offence of rape under Section 1 of the Sexual Offences Act 2003. That minimum term—of seven years—applies unless the court is of the opinion that there are exceptional circumstances relating to the offence or the offender which justify it not doing so. I propose that minimum term for rape without one iota of apology.

The framework for sentencing by the courts has to be set by Parliament. The way Parliament does this—as the two former Lord Chief Justices made clear—is by setting a maximum sentence, and the courts then reflect on what they conceive to be the justice of the case, as determined by the maximum. In exceptional cases—I use that word advisedly—it is appropriate for there to be minimum sentences as well. If there is a minimum sentence, the judge’s discretion is removed, but that is because Parliament is saying that particular offence merits a minimum sentence except in exceptional cases.

I strongly agree with the proposition that one should keep those sentences to the minimum. I also strongly agree with the noble and learned Lord, Lord Thomas, that, where Parliament says “exceptional circumstances”, for all the impressive sophistry of the noble Lord, Lord Wolfson, it is definitely saying, “We want the norm to be whatever the minimum is, and as few cases as possible should not be in the norm”. There is nothing wrong with Parliament doing that. Rape, in our view, is one of those cases.

--- Later in debate ---

[Viscount Hailsham (Con)]

My Lords, I have a feeling I am going to be in a minority in this Committee. As much as I like and admire the noble and learned Lord who has just spoken, I disagree with at least two of his amendments. I disagree with Amendment 195 on the minimum sentence for rape, partly because of the general point that I have made about judicial discretion already, which I am not going to repeat, and partly because—I draw now on my own experience as a criminal barrister; perhaps not a very distinguished one, but I was a genuine lawyer for quite a long time —rape is a broad spectrum of offence, from ones which one can comprehend to the truly awful. There is a spectrum here, and it is wrong to fetter the judicial discretion to the point envisaged by this amendment.

The other amendment I do not agree with would make the murder cases of the class described by the noble and learned Lord in Amendment 197 a whole life offence. I personally shrink from whole life sentences if they are mandatory. There are many cases where they are proper, but I would leave it to the judge. I very much dislike the concept of sending lots of people to mandatory whole life sentences with no prospect of rehabilitation.

[Lord Falconer of Thoroton (Lab)]

The noble Viscount may be assuaged by the fact that what I am talking about is the starting point. Therefore, it is not a mandatory whole life term, it is a mandatory life sentence, and it is for the judge to indicate what the position is. The effect of my amendment is to say that the starting point is a whole life term.

[Viscount Hailsham (Con)]

We have been here before in previous debates. The effect is to make it mandatory unless there are some very powerful arguments against. If the noble and learned Lord will forgive me, having read his Amendment 197, I recognise that in many cases falling within that classification a whole life sentence would be appropriate: abduction, yes, murder, of course, but sexual assault? One needs to keep in mind that is a fairly broad offence from the relatively trivial to the very serious. I am not at all happy about including that as a triggering element which makes the whole life sentence the starting point. But I know I am in the minority on this point and the Committee will doubtless take a different view.

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[Lord Marks of Henley-on-Thames (LD)]

My Lords, we have heard which amendments are in this slightly disparate group. On Amendment 195, I am in agreement with the noble Viscount, Lord Hailsham, and in disagreement with the noble and learned Lord, Lord Falconer, I am afraid, because it would require the courts to pass a minimum sentence of seven years for rape in the absence of exceptional circumstances. I fully accept that this amendment is motivated by a determination to respond strongly to the completely horrible offence of rape, and by a desire to be seen to be determined to tackle and reduce it by bringing offenders to justice and dealing with them with the full force of the criminal justice system through long sentences of imprisonment. Nevertheless, I cannot support the amendment.

On these Benches, we will take lessons from no one on how serious a crime rape is. Members on these Benches have spoken repeatedly of the need to increase the rates of reporting rape, the approach to investigating rape, ways of increasing rates of prosecutions and the rate of successful prosecutions for rape, and ensuring that courts, juries and the public—young and old—are fully aware of the meaning of consent. But we do not believe that a minimum seven-year sentence for rape will increase the number of victims prepared to report offences—particularly in cases where the assailant is known or related to them—or reduce the difficulty for the police in investigating rape, securing the co-operation of parties close to the case, securing witness statements or getting witnesses to give evidence in court. Nor do we believe that such a sentence would make it easier to secure convictions from juries, particularly in cases they might regard as borderline, against the background of appallingly low conviction rates.

We have heard many times about the background of failure to bring rapists to justice. In the year to March 2020, nearly 59,000 cases of rape were recorded by police in England and Wales. Of those, there were only 21,000-odd prosecutions and an appallingly low 1,400-odd convictions. We have also heard many times that in 57% of cases investigated by the police in that year, the victims withdrew their support for the prosecution. There is no evidence at all relied upon by the noble and learned Lord, Lord Falconer—or, I suggest, in existence—that minimum sentences of seven years, or of any figure, would improve that position.

Every lawyer, investigator or judge who has ever had anything to do with criminal courts knows the extent to which one case of rape differs from another. The noble Viscount, Lord Hailsham, is right about that. Although every case represents an egregious abuse, a standard minimum sentence cannot be justified. That brings me back to the points I made in the previous group about the importance of judicial discretion and the inappropriateness of a test requiring a judge to find exceptional circumstances before being permitted to pass less than the minimum sentence.

There is a minor point as well about the drafting of the amendment: it is unclear as to the age of the offender. Proposed new subsection (1)(a) applies the clause to offenders “aged 18 or over” at the date of the offence, while proposed new subsection (3)(a) applies to an offender under 18 at the date of conviction. There is an internal inconsistency which the noble and learned Lord may wish to consider.

Rape is a scourge. We must address it, reduce it and bring offenders to justice, as well as change the culture in our society that tolerates it and, as the noble and learned Lord said, does not control the appalling epidemic of violence against women and girls. But minimum sentences will do none of that.

Amendment 196 seeks to increase the sentence for naming a complainant. The noble and learned Lord is absolutely right that this offence can do great harm by removing anonymity; it can cause considerable distress and often psychological damage as well. Increasing it to a two-year maximum on indictment or 12 months on summary conviction is a sensible change to the law, which we support.

Amendment 197 would add

“the abduction, sexual assault, and murder of a person”

to the offences in Schedule 21 to the Sentencing Code for which a whole-life sentence is a starting point. I take it to mean that the whole-life sentence would be a starting point if all three elements were present: the abduction, the sexual assault and the murder.

[Lord Falconer of Thoroton (Lab)]

That is correct.

[Lord Marks of Henley-on-Thames (LD)]

The only reason I make that point is that there was a misunderstanding—not inherent in the noble Viscount’s speech, but that might have arisen from his speech—where he talked of sexual assault as being a very varied offence; of course it is, but here it is combined with abduction and murder.

I think the starting point argument made by the noble and learned Lord is valid because the starting point applies on the statute if the court considers that the seriousness of the offence, or a combination of the offence and one or more offences associated with it, is exceptionally high. It is only a starting point: it does not mean that judicial discretion is removed or even significantly fettered if particular circumstances applied to make that an inappropriate or unjust sentence. I see no reason why that should not be added to the list, which we already have, of heinous offences for which a whole-life order is a starting point. But I fully agree with the noble and learned Lord that we need to keep whole-life orders to a very restricted class of cases because they are sentences without hope.

Finally, the noble Baroness, Lady Massey, and the right reverend Prelate the Bishop of Derby—whose position was eloquently expressed by the right reverend Prelate the Bishop of Durham in the earlier group—oppose Clause 103 because new Section 321(3B) of the code would permit whole-life orders for those aged 18 to 20. We agree, for all the reasons they gave, and the reason that the noble and learned Lord, Lord Falconer, gave, that that is inappropriate. Whole-life orders should not be imposed in such cases.

[Lord Wolfson of Tredegar (Con)]

My Lords, this is obviously an important set of amendments. I thank all those who spoke on the arguments put forward. We agree across the Committee that sexual violence is a devastating crime that can have lifelong impacts on victims and survivors. The noble Lord, Lord Marks of Henley-on Thames, used the word, “scourge”. I do not disagree with that. He was also right to say that a change in culture is part of the solution here but also that these crimes have to be punished with sentences that match the severity of the offence.

As the noble and learned Lord, Lord Falconer, said, the group of amendments encompasses a number of such crimes. Let me take each one in turn. I will start with the Amendment 195, which would require the court to impose a minimum custodial sentence of at least seven years for a rape offence committed under Section 1 of the Sexual Offences Act 2003 unless, as stated in subsection (2), there are exceptional circumstances that justify not doing so. I respectfully agree with the noble and learned Lord that there is an important point here. He was making, it is fair to say, substantially the same point that I was making to the noble and learned Lord, Lord Judge, about the roles of Parliament and the courts. Just as the noble and learned Lord, Lord Falconer, has nothing but respect for the courts and judges, so do I. I should also say that my wife is a judge but she does not come anywhere near to sentencing anybody, so perhaps I do not have to make that declaration.

We agree on the principle that there are some cases in which it is right for Parliament to set out a minimum sentence with an exception, and other cases where it is appropriate to have greater judicial discretion. The real question is how we respond to each case, bearing in mind the scope of the sentences available to the sentencing judge.

Against that background, we have to remember that the maximum penalty for rape is life imprisonment. Quite rightly, rape offenders already receive significant sentences. I remind the Committee that in 2020, the average—I underline “average”—custodial sentence given to adult offenders for a Section 1 rape offence, where the victim was 13 or over, was almost 10 years. That represents an increase of almost 15% over the past decade. Also in 2020, over two-thirds of those offenders received a custodial sentence of over seven years.

Also, in certain circumstances, where offenders are convicted of a repeat serious sexual offence, including rape, the law already provides for a minimum sentence of life imprisonment. I should underline that the original offence, when we are talking about the repeat offence category, may not necessarily have been rape but one of a number of serious sexual and violent offences. In addition, in this Bill, and through legislation in the past year, the Government are ensuring that rape offenders sentenced to over four years must spend two-thirds of their sentence in prison, as opposed to being released at the halfway point.

However, as the noble and learned Lord, Lord Falconer, recognised in his Second Reading speech, it is important that we maintain judicial discretion for the court to consider the facts of the case before it and decide on the appropriate sentence. Perhaps I can provide some support on this point —or perhaps the noble Viscount may give me some support. It is important that, given the complex nature of this offence and the wide range of circumstances the court may need to take into account, we maintain that role for judicial discretion. We may both lack the appellation “learned” but I hope that that does not detract from the strength of the point we are making.

Although the sentence lengths for rape have increased, we have a serious problem. We have long recognised that the decline in the number of effective trials for rape and serious sexual offences is a cause for serious concern. I have said that from the Dispatch Box before. Let me take the opportunity to mention briefly some of the wider action we are therefore taking to support rape victims and improve the way rape cases are handled by all criminal justice partners.

We published the End-to-End rape review on 18 June. This sets out our ambitious plans to improve numbers of rape cases being referred by the police, charged by the Crown Prosecution Service and reaching the court. On 21 July, we published the cross-government Tackling Violence Against Women and Girls Strategy, to help better target perpetrators and support victims of crimes which disproportionately affect women and girls. As to sentencing, the maximum penalty for rape is life imprisonment, and it is already the case that the courts impose significant sentences. For the reasons that I have set out, we believe it is proper that the courts retain discretion to ensure that they can impose the appropriate sentence based on the facts of the individual case.

Turning now to Amendment 197 on the abduction, sexual assault and murder of a person, I read it as the noble and learned Lord intended, that it is all three. The amendment would expand the circumstances where a whole-life order would be the starting point to include cases of murder involving the abduction and sexual assault of a single person. While this Government obviously greatly sympathise and understand the concerns that underpin this amendment, I respectfully disagree with what is proposed. All those convicted of murder already receive a mandatory life sentence. For murders involving sexual or sadistic conduct, the starting point for the minimum term in prison is 30 years. Judges are able to increase or decrease a minimum term from this starting point according to the circumstances and relevant aggravating or sometimes mitigating factors. In addition, and as was demonstrated by the sentencing of Wayne Couzens for the horrific abduction, assault and murder of Sarah Everard, there is also an existing discretion to impose a whole- life order if the seriousness of the individual case is exceptionally high.

We are committed to ensuring that serious sexual and violent offenders serve sentences that reflect the severity of their crime. However, I believe that our current sentencing framework, a crucial component of which is judicial discretion, responds correctly at present to these horrendous cases. The courts can, and indeed do, impose extremely robust sentences where appropriate that fully reflect the gravity of this offending and the appalling—often lifelong—harm that it causes.

As I am on the topic of whole-life orders, I will go slightly out of turn chronologically to address the notice given by the noble Baroness, Lady Massey, and the right reverend Prelate the Bishop of Derby that they oppose Clause 103 standing part of the Bill. Clause 103 makes it possible for people aged 18 to 20 to receive a whole-life order where the crime committed is extremely serious. Clause 103 has to be read together with Clause 102, which expands the range of circumstances where a whole-life order must be the starting point to include the premeditated murder of a child. The current position is that whole-life orders can be imposed only on offenders aged 21 and over. This acknowledges the utmost seriousness of this punishment and its overwhelming effect on an offender’s future. We recognise, however, that there may be some rare cases where it may be appropriate to impose a whole-life order on offenders aged 18 to 20. We propose, therefore, to give judges the discretion to impose a whole-life order on an offender aged 18 or over, but under 21, in those cases.

We have set out an important clarification or criterion for when that sentence would be available. Clause 103(2)(b)(3C) makes it clear that the sentence will be warranted for offenders in the 18 to 20 year-old cohort only where the crime was extremely serious even by the standards of the crimes which would normally attract a whole-life order. We anticipate that this discretion would be exercised rarely. The expectation is still very much that offenders aged under 21 would not receive a whole-life order, but the change will allow judges to impose these sentences for these younger offenders, who are of course still adults, where that is necessary.

Let me turn finally to Amendment 196 which the noble and learned Lord, Lord Falconer, set out. As was stated in the other place, we are sympathetic to the objective of this amendment. The unlawful naming of people whose identity is protected by law ought to be appropriately punished. It is a crime which can have serious consequences and cause serious upset, concern and more.

However, with respect, our view is that the amendment does not go far enough. It is limited to breaches of Section 5 of the Sexual Offences (Amendment) Act 1992. That Act applies where an allegation of a sexual offence is made, and it imposes an automatic prohibition on publishing any material likely to lead to the identification of the complainant. It also covers alleged victims of human trafficking. This amendment would cover those types of victims, but there are many others whose identity is also legally protected, where the existing penalty for breach would be unaffected.

Sometimes the protection is automatic, for example for victims of female genital mutilation and forced marriage, where the breach offence is the same as that in the 1992 Act, or victims, witnesses and defendants under the age of 18 in youth court proceedings, something which I know the noble Lord, Lord Ponsonby, will be familiar with. In addition, reporting restrictions can be imposed at the discretion of a court, for example in relation to underage participants in a Crown Court trial or vulnerable adult witnesses. Since one reason for imposing these discretionary restrictions may be to protect the subject from injury, one should not assume that the discretionary imposition of restrictions is any less serious than the automatic ones.

Contempt of court may overlap with specific breach offences in circumstances where there is a potential impact on the justice process; that would have a two-year maximum. Therefore, we believe there is a strong case for examining this area of law as a whole, rather than amending legislation piecemeal. My right honourable and learned friend the Attorney-General has invited the Law Commission to undertake a review of the law of contempt of court, with particular reference to the interface between that and the criminal law, including the specific breach offences under discussion today. If the Law Commission takes on that task, it would provide a sound basis to look at this area properly and provide some real improvements in the protection the law offers to participants in the criminal justice process.

For the reasons I have set out, I invite the noble and learned Lord to withdraw his amendment and invite the Committee to allow Clause 103 to stand part of the Bill.

[Lord Falconer of Thoroton (Lab)]

I am obliged to everybody who took part in the debate. There was widespread support around the Committee for the increase in the penalties for the naming of an anonymous complainant. I thought the speech from the noble Lord, Lord Wolfson, was cruel, because it appeared to support it and then talked about the Law Commission. That is years away, so I think we will come back to this on Report. If the Minister would be willing to help me, we could expand the range if he thinks that is appropriate.

In relation to the question of a minimum sentence for rape, as far as the Government are concerned, there is already a minimum sentence of seven years for third Class A drug trafficking offences, a minimum of three years for third domestic burglary and a minimum sentence for offences of threatening with weapons or bladed articles. I am broadly in agreement with the proposition that minimum sentences should be exceptional, but if they are to apply to any case, rape must be the appropriate case.

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Moved by

[Lord Falconer of Thoroton]

196A: After Clause 101, insert the following new Clause—
“Duty to inform victims and families of the Unduly Lenient Sentencing Scheme
(1) The Criminal Justice Act 1988 is amended as follows.(2) After section 36, insert—“36A Duty to inform victims and families of the Unduly Lenient Sentencing Scheme The Secretary of State must nominate a Government Department (“relevant body”) to inform victims and their families of their rights under the Unduly Lenient Sentencing Scheme, and such information provided must include the type of sentence and the time limit for application, and advise that applications must be made to the Attorney General.””

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[Lord Falconer of Thoroton (Lab)]

This is about a completely new topic that we have not addressed before, which is the unduly lenient sentence scheme. The scheme allows the Attorney-General to refer to the Court of Appeal a sentence which he or she regards as being unduly lenient. Only the Attorney-General can do it, there is a 28-day period for referral from the date at which the judge has passed the sentence which is impugned by the unduly lenient sentence application, and it applies only to particular identified serious crimes. From time to time, there is a review of which crimes to which it refers, and the crimes have been changed from time to time—always increased, not reduced. It does not apply to the crimes to which it applies if they are tried in the youth court.

One of the great campaigners for change in relation to this is Tracey Hanson, whose son Josh was brutally stabbed to death in October 2015. The person who committed the murder absconded in a private plane, and many years went by before he was finally arrested and charged, convicted of murder and given a life sentence with a minimum sentence of 26 years. Josh’s mother took the view, completely understandably, that this was an unduly lenient sentence. She knew nothing about the unduly lenient sentence scheme until she was told about it on the 28th day. She got in touch with the Attorney-General’s chambers, who said that it was out of office hours and too late to make an application. It would have had to be the Attorney-General who made it, not Tracy Hanson, so the opportunity was completely lost.

Amendment 196A proposes that the Secretary of State for Justice would nominate a government department —almost certainly the CPS—to inform victims and their families of the type of sentence that has been passed, the time limit for an application to be made by the Attorney-General, and that an application by a victim or their family for an increase in the sentence should be made to the Attorney-General, so you do not end up in a circumstance where the victim finds out only at the very last moment that this right exists.

Amendment 196B would allow in very exceptional circumstances the time limit of 28 days which applies to the ULS scheme to be extended. It should be extended only in exceptional circumstances. Those circumstances should include but not be limited to where the relevant body which is obliged to notify the victim or the victim’s family of the existence of the scheme fails to do so. If there was this limited discretion to extend the 28-day period, that would avoid the feeling of injustice that Josh’s mother and the rest of her family experienced.

My Amendment 196C says that, within 12 months from the date upon which the Bill becomes law, the Secretary of State shall undertake a review of the offences to be included within the scope of the ULS scheme to allow consideration of whether other offences should be added. Amendment 196D seeks to render cases tried in the youth court, where they are for one of the index offences, also subject to the ULS scheme. I beg to move.

[Baroness Brinton (LD) [V]]

My Lords, I am pleased to support the noble and learned Lord, Lord Falconer, on Amendments 196A to 196D, and I thank him for so ably and eloquently presenting the importance of these changes. I am sorry that the noble Baroness, Lady Newlove, has been unexpectedly called away, but, as your Lordships’ House knows, she was the Victims’ Commissioner, and, through her work with victims, she has asked me to say that she is extremely supportive of this group.

I think that most people are aware of the fundamental right in our justice system to appeal a sentence handed down by a judge. Following a sentence hearing, a convicted offender will meet with their lawyer to discuss what comes next and what their rights are with regard to an appeal. This is a fundamental and correct part of our process, and we should hold it in high regard. But what many are not aware of—and this leads me to the necessity of these amendments—is the unduly lenient sentence scheme, which provides the right for anyone to appeal a sentence. This right is of particular importance to the victims of crime and bereaved family members, and the scheme is recognised as a key entitlement in the victims’ code of practice. Operated by the Attorney General’s Office, it provides this fundamental right, which is an important process for victims and bereaved families and can bring comfort and increased confidence in the justice system.

However, as we heard from the noble and learned Lord, Lord Falconer, these rights are not equal in policy or practice, and many victims find themselves learning of their rights by chance, too late or not at all, all of which can have a devastating impact on a victim’s recovery. The scheme, like an offender’s right of appeal, has a time limit of 28 days. This limit provides some assurance for those involved, which we think is important. However, this is where the parity between victim and offender ends, and the amendments tabled by the noble and learned Lord, Lord Falconer, would rectify the problem. While offenders are told of their right to appeal almost immediately following the sentencing, we know that many victims are never informed of their rights at all.

I will briefly tell you about someone who has been denied her rights under this scheme. Claire, a loving mother to a young daughter, was stabbed repeatedly and had her throat slashed by her ex-partner. Thankfully, Claire survived this most horrific of attacks, which was carried out in the presence of her daughter. The offender in the case was arrested and charged, and plead guilty to attempted murder earlier this year. He was handed a life sentence but with a minimum term of just eight years. No justice agency told her of the unduly lenient sentence scheme, and it was only while speaking to Tracey Hanson, whom the noble and learned Lord, Lord Falconer, referred to, that she became aware of it. She spoke to the police about it, and they incorrectly told her that she could not appeal due to the offender having received a life sentence.

The problem is the lack of clarity about this scheme, and the lack of responsibility for telling a victim meant that Claire was unable to request that the sentence be appealed within the 28 days. And so the man who slashed her throat her in front of her young daughter may be released in as little as eight years. We must stop failing victims who bravely come forward to bring offenders to justice and whom we repay with this appalling treatment and injustice.

The revised victims’ code of practice, which came into force in April and codifies the rights and entitlements of victims of crime, assigns this responsibility for informing victims to witness care units. While this is useful and important, it fails to realise that many victims and bereaved family members will have no contact at all with witness care units, leaving many still unaware of their rights. So we must ensure that victims and bereaved families are informed in good time after sentencing, because it is absolutely vital that they are able to use their right to appeal if they so want.

These amendments also seek that the Secretary of State conduct a review of eligibility under the scheme, opening up the possibility of including further serious offences, with the aim of delivering this vital right to more people. Gareth Johnson, MP for Dartford, speaking in the other place, talked passionately of the experience of his constituents: the family of Gemma Robinson, who was brutally beaten by her partner, who was the subject of a restraining order following a previous assault against her. Following this, her partner was arrested and charged with Section 18—grievous bodily harm—an offence recognised under this scheme. Tragically, Ms Robinson took her own life prior to his appearance in court and the charge was reduced to Section 20, malicious wounding. This offence, as it stands, is ineligible for the unduly lenient sentence scheme, so Ms Robinson’s family could do nothing as a sentence of just 3.5 years was handed down.

I thank the London victims’ commissioner, Claire Waxman, and her office for their tireless work in pushing for reform to the unduly lenient sentence scheme. I thank the noble and learned Lord, Lord Falconer, for tabling these amendments and making the possibility of reform a reality. I urge the Minister to support this amendment, not just for those whom the system has failed but for those whom it can stand to benefit in future—those victims and families who feel that in their case justice was not done.

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A youth court can sentence a child to up to two years’ detention only. For all sentences over two years—as we heard from the noble Lord, Lord Paddick, I think, earlier—a youth case must be passed to the Crown Court. In serious cases, a youth court can decide to send a child to the Crown Court for trial, or a child can be committed to the Crown Court for sentence. Therefore, the ULS scheme already applies to serious youth offences worthy of the greatest scrutiny because those sentences are handed down in the Crown Court where the ULS scheme would be available. That reflects the intention of Parliament when setting up the scheme: that it is reserved for the most serious cases. Therefore, it is not necessary or appropriate to include offences tried in youth courts in the ULS scheme. For those reasons, I invite the noble and learned Lord to withdraw his amendment.

[Lord Falconer of Thoroton (Lab)]

I express my gratitude to the noble Baroness, Lady Brinton, and, through her, to the noble Baroness, Lady Newlove, for their support on these amendments. I also thank the Minister for his careful reply.

Again, very briefly, it is disappointing that, in relation to whether there should be a duty on the Secretary of State to get a government department to be under a duty to tell victims of the possibility of going to the law officers, the Minister’s answer was that the witness care units have a code of practice that tells them they should do that, and it is in a pamphlet produced by the CPS. With respect, I take the noble Lord to be accepting that somebody should tell them. If we really want that to happen, we should impose a duty on the Secretary of State to do that. So I am not sure that we are necessarily at odds on the outcome, but I think that, if one is serious about it, this is the way to do it.

In relation to the time-limit point, the defendant can have his time extended, which brings a degree of uncertainty to victims. In my respectful submission, there should be a similar parity of protection for the victims who wish to question the sentence. Again, there can be limits on that exception, and I am more than happy to entertain any limits that the Minister thinks should be put in—but there must be some means of extending it because of justice.

In relation to the other two, I do not think that I can achieve much by referring to them, except to confirm that my intention in relation to Amendment 196D was to deal only with offences that would otherwise be subject to it in the adult court.

I beg leave to withdraw the amendment.

Amendment 196A withdrawn.

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Lastly—I accept that this is a drafting point, but we are in the business of drafting—subsection (13) of the new clause proposed by the noble Lords provides the word “would”: the High Court concludes that there would be a significant risk to the public. I question the word “would”. A word such as “might” would seem to be much better because, if the High Court has asserted that there “would” be a risk, that seems to prejudge the issue as it comes before the Parole Board, which might have some difficulty in concluding that there was no risk. So I acknowledge that it is a drafting point, but I would like the word “might” or something like it to be inserted rather than the word “would”. That said—and I hope I have not been too pedantic—I do think that this is a very important proposal articulated by two of the noble Lords who put their names to it, and I strongly support it.

[Lord Falconer of Thoroton (Lab)]

My Lords, this is a very interesting proposal. I think we all agree, across the House, that where somebody is entitled to automatic release at half or two-thirds of their sentence, if there is proper material from which the conclusion can be reached that the defendant poses a significant danger to the public, then the automatic release date should not apply, and presumably the defendant should then be kept in prison until the end of the nominal sentence. As the Bill is currently drafted—putting it shortly—if there are reasonable grounds for the Secretary of State to believe that the defendant might pose such a risk, the Secretary of State can refer it to the Parole Board to decide.

What the noble Lord, Lord Carlile of Berriew, wants is that, if the Secretary of State forms that view, he or she should refer the decision to the High Court. The High Court would then make a determination on the substance of the issue: whether the prisoner constitutes a danger. The noble Viscount, Lord Hailsham, called it a drafting point, but as I understand the drafting here, if the High Court forms the view that the prisoner does constitute such a danger, the High Court does not determine whether or not the prisoner is released but refers the matter to the Parole Board. In his opening speech on the amendment, the noble Lord, Lord Carlile, said he believes that the operative decision should be made by the Parole Board, not the High Court.

Necessarily, that ends up with a situation where what the High Court is deciding, one way or another, is whether there are proper grounds for the Secretary of State’s belief that the prisoner may pose a risk. It would be necessary to amend the amendment to say that, because otherwise the operative decision is plainly being taken by the High Court, not the Parole Board—and the noble Lord, Lord Carlile, wants the decision to be taken by the Parole Board, which I understand. Once you get to that point—namely. whether there are proper grounds for the Secretary of State’s belief—then it is judicial review, so I am not sure what is added by this proposal.

I do not wish to give away any secrets, but I am sure there are Secretaries of State who, under press or political pressure, would refer such a decision to a body with the power to determine whether or not somebody should be released at the automatic release date. Whether the reference is to the Parole Board or to the High Court, honestly, Secretaries of State will still be guided by political considerations. As far as the Secretary of State is concerned in the notional example given, if they want to make a political point they will refer it to whoever the statute says they should, irrespective of their precise state of knowledge, for political reasons. The noble Viscount, Lord Hailsham, and the noble Lord, Lord Carlile of Berriew, are saying that they will be pushed into it by politics. Well, under his amendment, they will be pushed into referring it to the High Court, and under the Minister’s position they will be pushed into referring it to the Parole Board, which is where the noble Lord, Lord Carlile of Berriew, wants it to end up anyway.

I am not sure that this amendment achieves much, as it pushes you back into judicial review, which is where we are already. I am sympathetic to the position adopted, but—I put this advisedly—if the noble Lord, Lord Carlile of Berriew, was willing to put his money where his mouth is, surely the end point should be that the High Court decides. That would provide a much more effective safeguard. This does not quite get there.

[Lord Wolfson of Tredegar (Con)]

My Lords, we have had a very interesting debate. The last few speeches have highlighted the problems with the approach that I was going to set out. In short, where we end up on this amendment is, in effect, the High Court taking the decision and not the Parole Board. I shall come back to the “would” point made by my noble friend Lord Hailsham, which I was going to make as well and is absolutely right.

The amendment would require the Secretary of State first to refer high-risk offenders to the High Court. They could then be referred to the Parole Board only with the court’s approval. That is the structure that we are dealing with. The structure in our clause is that the Secretary of State refers directly to the Parole Board. If referral to the High Court is put in as an intermediate process, it would mean two things. First, the High Court may reject the referral from the Secretary of State if it did not agree that the offender would pose a risk of serious harm. My concern is secondly that, if the High Court did consider that the offender would pose a risk of serious harm, it would roll the pitch in a very serious way for the Parole Board.

I therefore have concerns about both the necessity and the benefit of involving the High Court in this process, but nothing I am going to say is intended to undermine two points on which I agree with the noble Lord, Lord German; first, on the importance of due process and, secondly, that we should limit arbitrary power. I suggest that the court does set out due process and limits arbitrary power.

The important point to bear in mind is that the new power is not a re-sentencing exercise. It is not the Secretary of State extending the detention of the prisoner. I fully accept the point made by the noble Lord as to the important boundary between Secretary of State and judge, between Executive and judiciary. I also want to have a strong and independent judiciary; I believe we do. That principle is not contravened by this clause, because it is the independent Parole Board that will make the final decision as to whether an offender is safe to be released early. The Secretary of State has the power to make a referral, but he or she must have a sound basis for doing so and must give the prisoner notice, which must include the grounds for making the referral and give the prisoner the opportunity to make representations to the Secretary of State.

As for the criteria in play, we will closely monitor and record how the power is used. We will publish a policy which clearly outlines the threshold that must be met and the principles which will underpin the Secretary of State’s decision-making procedure in determining whether to refer a case to the Parole Board.

Police, Crime, Sentencing and Courts Bill

Lord Falconer of Thoroton Excerpts

Lords Hansard - Part 1 & Committee stage
Monday 15th November 2021 Lords Chamber

I have never resiled from wanting people who have committed heinous crimes to be put away for a very long time, or from having tough sentences where they are needed. But this situation cannot go on. We have to do something for the sake of the individuals and their families, and for the safety of the community, because the longer they are in prison on a suspended animation sentence or on licence, the more likely they are to find themselves unable to rehabilitate and live a normal life. When that happens, they are more likely to commit a crime. I got it wrong. The Government now have the chance to get it right. I beg to move.

[Lord Falconer of Thoroton (Lab)]

I commend the speech of my noble friend Lord Blunkett. I agree with every single word of it. I am as culpable as he is in relation to this. I was a junior Minister in the Home Office at the time, and the Lord Chancellor did not foresee the consequences of what the noble and learned Lord, Lord Brown, who I am glad to see in his place, described as

“the greatest single stain on our criminal justice system.”

Our purpose on these Benches is to participate in a coalition of people with a view to persuading the Government to make sensible changes to the regime to get rid of this injustice that the noble and learned Lord, Lord Brown, and my noble friend Lord Blunkett, have referred to. The amendments before the Committee today provide a number of sensible options, but we put them forward, or support them as part of that coalition, with a view to reaching agreement with the Government to do something about them.

I may try the patience of the Committee too much, but I will speak to the amendment to which my name is put, and then I will speak again indicating the Labour Party’s position on the whole range of amendments. The amendments I speak to at the moment, therefore, are Amendments 208A and 208C, which deal with the position in relation to those IPP prisoners who have been released, and what the Government should be doing about them. I add my thanks to those of my noble friend Lord Blunkett to the Prison Reform Trust, which has provided an incredibly valuable briefing to the whole House. I also thank the Howard League for Penal Reform, which has done the same; Frances Crook, who has, over a very long period, provided real guidance to policymakers on these issues; and UNGRIPP, a group of friends and prisoners who have suffered as a result of this regime.

I turn now to the probing Amendments 208A and 208C, which are in my name and that of my noble friend Lord Blunkett. He gave the figures. The basic proposition is that to reduce reoffending, energy and resources need to be devoted to ensuring that IPP prisoners who secure their release are able to live successful lives thereafter, avoiding recall to prison. That is what is best for society and for them. Without this, the current incidence of recall will soon, as my noble friend said, lead to a situation in which the number of people serving the IPP sentence may start to grow rather than decrease. From 30 September 2015 to 30 June 2021, the number of never-released IPP prisoners fell by 61%, from 4,431 to 1,722.

However, at the latest date for which I have figures, which is June 2021, there were 1,332 people back in prison having previously been released—more than double the number of five years ago. Recalled IPP prisoners who were re-released during 2020 have spent an average of 20 further months in prison before re-release. The hopelessness and despair that engenders is incredibly effectively described in the Prison Reform Trust’s report No Life, No Freedom, No Future. Its findings are based on data provided from Her Majesty’s Prison and Probation Service on recalls and re-releases and on interviews with 31 recalled IPP prisoners. A briefing from the Prison Reform Trust said:

“The report found that IPP prisoners’ life chances and mental health were both fundamentally damaged by the uniquely unjust sentence they are serving. Arrangements for their support in the community after release did not match the depth of the challenge they faced in rebuilding their lives outside prison. Risk management plans drawn up before release all too often turned out to be unrealistic or inadequately supported after release, leading to recall sometimes within a few weeks of leaving prison, and for some people on multiple occasions. The process of recall also generated strong perceptions of unfairness.


At its worst, the report found that the system … recalled people to indefinite custody”


for what appeared comparatively trivial matters,

“defined needs (e.g. mental health) as risk factors … ignored the impact of the unfairness of the sentence on wellbeing and behaviour … could not provide the necessary support; and … provided no purpose to time back in custody or a plan for re-release.”

Not all IPP recalled prisoners endured that, but it was common enough to say that the system needed looking at overall. As I indicated, many IPP interviewees suggested that the recall decisions were taken too lightly. At most, 23 of the 31 participants had not been convicted of a subsequent offence when they were recalled.

What to do about it? To prevent the current situation continuing—and I am dealing only with people being recalled—there are basically eight things to do. First, the process for licence review should be automated, and the qualifying period reduced from 10 years to five. That is in line with Amendment 208D. Secondly, the test for recall should be changed. It should be that there is imminent risk of the person committing an offence causing serious harm, and that that risk cannot be managed in the community. For other things, such as not staying at the address named in the conditions, other measures should be thought about—for example, adjusted reporting requirements, use of electronic tags and curfews. Thirdly, where a person has been charged with a further offence, the normal criminal justice processes should apply, with a court considering whether remand in custody is appropriate for the new alleged offence. Fourthly, if a person is convicted of a further offence, the court should decide what happens to that person, not an official. Fifthly, if a person is convicted of a further offence and the court decides to recall them under the provisions of their IPP sentence, the Parole Board should be required to consider release alongside any considerations of discretionary release that attach to the new sentence—for example, an extended determinate sentence. Sixthly, IPP prisoners who have been recalled, not having received a new custodial sentence and not being re-released on the papers by the Parole Board, should have the right to an oral hearing if they so wish. Seventhly, if the Parole Board panel upholds the decision to recall, it must set a fixed date for a further review. Eighthly, all recalled prisoners should be entitled to annual reviews of their continued detention at an oral Parole Board hearing with free legal representation.

We, on this side of the Committee, are very much aware that proper measures need to be in place to provide public protection, but that has to be balanced against a system where once people on IPP are released, they are not recalled except when something significant has happened and there is proper and serious support. I commend these amendments to the Committee.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, first, I commend, as others have, all those who have, in recent times, been building the road on which we are set today—none more so than the noble Lord, Lord Blunkett. For many years, I have urged, with no success thus far but with great hopes today, the reform of what remains of the IPP sentencing regime. It is in no way hyperbole to describe it, as I already have, as the greatest single stain on the justice system. Indeed, it is a deeper, growing stain because of the situation with the recalls.

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[Lord Falconer of Thoroton (Lab)]

My Lords, I have already spoken once. I speak very briefly to say two things. First, what an impressive debate this has been. I draw attention in particular to the speeches of my noble friends Lord Blunkett, Lord Hunt of Kings Heath and Lord Bradley, the noble Lords, Lord Moylan, Lord Ramsbotham and Lord Hogan-Howe, and the noble Baroness, Lady Burt. I draw attention to them because they are not lawyers; they are people who have had contact in other ways with this system and come to the conclusion that it should end.

Secondly, we on this side of the House support all the amendments. Some are alternative ways of dealing with a particular problem, but we support all the proposals. We are not, in the amendments before the House, going as far as some of the speeches went. We are not suggesting the immediate abolition of the sentence. We are saying: support for those in prison to try to get released; support for those who are released to get proper help; and an easier process of having consideration of the licence being got rid of.

As the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said, the one with the teeth is Amendment 208F. It says you get rid of these licences and release the person if they have served more than the sentence for the offence. If you have been sentenced to five years in prison, and that is the maximum sentence, once the maximum is reached, unless the detaining authority can prove that you are still a risk, you get released. If you are still below the maximum sentence for the offence for which you were convicted, but you have been in for 10 years, the same principle applies. It is an incredibly sensible way of ensuring the sentence goes for those who have got it, but you keep inside those who represent a severe danger, as long as the detaining authority can establish that they remain a danger.

I very much hope that the Minister will be able to give some words of comfort to the effect that these very moderate proposals will be taken up by the Government. If there are amendments to these proposals, of course, everybody in the House will consider them, but it is time for a change. These modest proposals require consideration for this Bill, because the biggest disappointment would be to be told that it is coming at some later stage.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)]

My Lords, Amendments 208A to 208H relate to offenders serving sentences of imprisonment for public protection commonly known as IPPs. The noble Lord, Lord Pannick, who was very kind about my work as a Minister, invited me to put away the departmental brief. I am not going to do that, not least because it might mean that my work as a Minister here ends somewhat prematurely. But that is not inconsistent, I hope, with making it clear to the Committee that I have listened carefully to the debate and to the points raised around the Chamber. I will reread the debate in the Official Report as well.

Of course, I feel the mood of the Committee—that would be impossible to miss. The speeches have been powerful and sometimes heartfelt. Without wishing to ignore others, may I say the contributions from the noble Lord, Lord Blunkett, and the noble and learned Lord, Lord Woolf, about their personal part in the genesis of IPPs have been unusual and moving. This politician, may I say to the noble Baroness, Lady Chakrabarti—although I see myself still as a lawyer, not a politician—certainly is trying to get this right. I do not think this is an issue which admits of easy analysis. To use the words of the noble and learned Lord, Lord Judge, it is something of a puzzle, which requires looking at carefully and solving.

I am grateful to those noble Lords who have met with me and discussed the issue. I am sure we will have further discussions between now and Report. I should say that I read Matthew Parris’s column at the end of July as well.

I will go through the amendments and set out the Government’s position, then I will come back at the end to some more general points. Four of the amendments, Amendments 208A to 208C and 208E, the latter from my noble and learned friend Lord Garnier, would require the Government to conduct a review on matters such as sentence progression, resettlement and supervision of prisoners serving an IPP sentence, and to lay a report before both Houses of Parliament.

The Government recognise that work needs to be done in relation to this group of prisoners. I will set out the work that has been done so far. We have put together what I think has been a successful action plan dedicated to the rehabilitation and risk reduction of IPP offenders. We continue to work to increase opportunities for IPP offenders to progress through their sentences via this plan. A qualified psychologist leads a review of the case of every IPP prisoner who is not making the expected progress. Between July 2016 and September this year, which is about five years, just under 1,700—1,679—reviews were completed; 440 prisoners were subsequently released and a further 474 secured a progressive move to more open conditions.

My noble and learned friend Lord Garnier commented on the availability of courses for IPP prisoners to help them make that progress. It is right that during the pandemic there were fewer places on some group interventions. We asked offender managers to look at other sorts of interventions to draw evidence from them for the parole reports. However, we have now been able to ramp up the provision again. Not all IPP prisoners will require the same interventions, of course, but we try to make sure that each prisoner has a suitable pathway, as it is called, to a future safe and sustainable release. That is the focus of the programme. There is a range of interventions, including places on progression regimes, other accredited programmes and places in open prisons. Where a programme is not available for an offender, the prison offender manager would seek to have the prisoner transferred to a prison where the programme is available, subject to a risk assessment and available places. In the meantime, other work would be identified so that the prisoner could undertake that work.

We believe that the action plan is working. High numbers of IPP prisoners are being released each year and the proportion of positive Parole Board decisions remains high. I do not think anybody mentioned this, but let me put it on the record that the Justice Select Committee in the other place has recently launched an inquiry into IPP sentences. Its stated aim is to examine

“the continued existence of IPP sentences and to identify possible legislative and policy solutions.”

The Select Committee will scrutinise what the Government are doing. I have no doubt that it will provide recommendations, which the Government look forward to hearing. I therefore underline that we are doing work in this area. We do not believe that a separate government-led review is necessary at this time.

I turn to Amendment 208D from my noble friend Lord Moylan. Currently, an IPP offender may apply to the Parole Board to have their licence terminated once 10 years from their first release from custody has elapsed. To do that, the offender must give their permission to the Secretary of State to apply to the Parole Board for licence termination on their behalf. The first part of this amendment would therefore remove the legal requirement for the offender to give their permission. Instead, offenders would be automatically rereferred for consideration each year, were they unsuccessful. The second part would change the time period from 10 to five years.

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Offenders are already able to apply to the Parole Board to have their licence terminated once 10 years since their first release from custody have gone past. The Parole Board is then to determine whether it is safe for their licence to be terminated. We believe that terminating their licence automatically, without any consideration by the Parole Board, would present an unacceptable risk to the public, and for that reason we do not propose to accept that amendment as drafted.

[Lord Falconer of Thoroton (Lab)]

None of the amendments would mean that there would not necessarily be a consideration by the Parole Board, including Amendment 208G, which is the two-year automatic end unless the Government made an application to the Parole Board, so I am not quite sure what the basis of rejection of that one is.

[Lord Wolfson of Tredegar (Con)]

I am not basing it only on what I have called automatic termination. The scheme set out in Amendment 208G would represent a very different approach to management on licence and, for the reasons I have set out, that is not a form of management which we think provides adequate protection to the public. I may come back to that.

Amendment 208H creates a power for the Secretary of State to release an IPP offender who has been recalled to prison, so long as the Secretary of State is satisfied that it is not necessary for public protection for the offender to remain in prison. The position at the moment is that the Parole Board has a responsibility to assess whether offenders are safe to be released into the community, even after an IPP offender is recalled to prison. They can take a decision to rerelease from only 28 days after the offender is recalled. We believe that the Parole Board’s expertise in determining whether offenders serving indeterminate sentences are safe to be released is, as I said, an essential tool of public protection.

If I may, I come back to where I started, with the words of the noble Lord, Lord Pannick. Again, I am grateful for his kind words. I agree that there are certainly problems with the current system; we are looking at it. We believe that our IPP action plan has achieved significant results and we keep it under constant review. The noble and learned Lord, Lord Judge, in what I have learned to be his habit of putting his finger on the point at issue, asked, “Well, what is going to be done?” I hope that I have made it clear that I have listened to the debate very carefully, and that I have no doubt of the mood and the strength of feeling of the Committee. I am also sufficiently acquainted with the ways of this House to anticipate what might or might not be moved on Report as and when we come to it. I can say this afternoon that I will continue to work on this issue—a number of noble Lords know that I have been working on it already—and to listen to the debate, but for the moment, I ask noble Lords who tabled this amendment to withdraw it.

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[Lord Falconer of Thoroton (Lab)]

My Lords, I support this amendment, and very much hope that the Government will either accept it or explain what they are doing in response to the report of the Prisons and Probation Ombudsman on the case of Miss A and her baby. The noble Baroness, Lady Burt, has explained the facts; it is worth looking at them in a little more detail.

Miss A, as she is called in the report, was remanded in custody on 14 August; she was pregnant. It does not say in the report whether the court knew that she was pregnant, but that is not what this amendment deals with. On 19 August, she was seen by a safeguarding midwife, who said that her estimated delivery date was between 24 September and 14 October. On 26 September, she was put on extended observation, which means she would be seen by a nurse in the morning, at lunchtime, in the evening and twice overnight. On that very day, 26 September, she went into labour. At 8.07 pm, 8.32 pm and 8.45 pm, she called for help and, in particular, called for a nurse. All three calls for help were ignored. At 9.27 pm and 4.19 am that night, she was inspected—I assume through a cell hatch—for a regular roll call, and nothing untoward was spotted. At 8.21 am the next morning, other prisoners reported that there was blood in her cell, and at 9.03 am an officer identified that she had given birth overnight and that the baby had died.

It is an absolutely terrible story, as the ombudsman describes. As the noble Baroness, Lady Burt, said, the ombudsman made specific recommendations, which are reflected in proposed new subsections (1) and (2) of her Amendment 209. It says that the Secretary of State must provide “appropriate midwifery care” within the female prison estate, and then defines “appropriate midwifery care” as meaning

“midwifery care that is appropriate to a custodial setting … maternity services that are suitably resourced to provide … an appropriately qualified midwifery lead in each prison to oversee all aspects of perinatal care … a maternity pathway for prisoners that includes a process for women who decline to engage with services”—

as Miss A may have done—

“access for prisoners to psychological and psychiatric services … training for staff in trauma-informed care … training for staff in neonatal and child resuscitation procedures; and … appropriate emergency equipment for children and neonates.”

A lot of those go beyond what would have made a difference in this particular case, but if those recommendations of the ombudsman had been given effect to, the tragedy almost certainly would not have occurred. This gives the Government the opportunity to respond in this House to those recommendations, all of which seem sensible and will not impose a substantial financial burden on the prison estate, because there are not that many women’s prisons. If the Government are not willing to accept these proposals, what are they going to do about the problem? Can they give a reason why a duty such as this on the Secretary of State should not be expressed in the legislation?

[Lord Wolfson of Tredegar (Con)]

My Lords, I am very grateful to the noble Baroness, Lady Burt, for tabling this amendment. As the explanatory statement makes clear, the amendment builds on the recommendations of the recent independent investigatory report by the Prisons and Probation Ombudsman into the death of Baby A—as we are calling the baby—at HMP Bronzefield.

I shall start by repeating what my honourable friend Victoria Atkins MP said when giving oral evidence to the Justice Select Committee’s inquiry into women in prison on 3 November. I quote her because I want to associate myself with this, word for word. We are

“very grateful to the ombudsman for her report. The facts as they unfolded in that report were truly shocking. And the fear that that young woman must have felt and the loss she is dealing with even today, we do not, we cannot contemplate anything of that nature ever again within the prison estate.”

My deepest condolences remain with those affected.

The death of Baby A was a tragic and harrowing event and has rightly been the subject of several investigations and inquiries, including that by the PPO, to try to ensure that all the necessary lessons have been learned to avoid a repetition in future. The Committee may be interested to know that there is a Question on this incident on, I think, Wednesday, which will be another opportunity for the House to look at this terrible event, and I believe I am going to be responding to it.

While I point out that we are not talking about sentencing here, and the noble and learned Lord, Lord Falconer of Thoroton, was right to say so, it is right to say that when it comes to sentencing, pregnancy is certainly a mitigating factor that is specifically taken into account in the sentencing guidelines. I should also say that it is exceptionally rare now for a woman to give birth in prison. The most recent figures, from July 2020 to March 2021, show that 28 births—90% of the total number of births—took place in hospital and none took place in prison. I understand that in the case of the missing 10%, the baby came out a bit quicker than anticipated and the birth might have taken place in the ambulance, but none took place in prison.

In response to the terrible disaster of what happened to Baby A, the previous Lord Chancellor, the right honourable Robert Buckland MP, commissioned the independent external investigation by the PPO. We have since accepted and acted upon all its recommendations for the Ministry of Justice and the Prison Service. We immediately put in place practical steps across the women’s estate, including providing all women with free phone access to local NHS pregnancy advice services and additional welfare observations for pregnant women in their third trimester. At that time we were already undertaking a fundamental review of national policy on pregnancy, mother and baby units and maternal separation in women’s prisons.

As the noble Baroness, Lady Burt, recognised and said she welcomed, that work led to a new policy framework, published on 20 September, which develops those immediate actions into national requirements for all women’s prisons, delivering on a wide range of reforms. The new framework has an extended policy remit covering requirements on perinatal care and maternal separation, in addition to mother and baby units. I hope that what I have said so far—although I will say something more—reassures the noble Baroness and the noble Lord, Lord Hunt of Kings Heath, that we are serious about our response to this matter. We are determined to take all necessary action to avoid a similar tragic event in the future.

I shall turn to the detail of the amendment and explain why, in the light of the current legislative framework, we are not persuaded that what is proposed is necessary. Currently, NHS England is responsible for commissioning almost all forms of healthcare for prisoners within both the public and private estate in England under Section 3B of the National Health Service Act 2006 as amended by the Health and Social Care Act 2012. That statutory obligation has to be read together with Rule 20(1) of the Prison Rules 1999, which states:

“The governor must work in partnership with local health care providers to secure the provision to prisoners of access to the same quality and range of services as the general public receives from the National Health Service.”


The requirement to commission healthcare services and to secure and ensure prisoners’ access to them therefore already applies to the provision of maternity services in the women’s prison estate, so we do not consider that there is any need to add a further separate obligation in statute as proposed by the amendment. What is important is that we ensure that it actually happens. I certainly do not mean to be flippant, but repeating something in statute is not the way to ensure that it happens. We are focused on ensuring that it happens. We already have the statutory obligation.

In fairness to the PPO, I should note that it did not recommend any change to the statutory framework. Rather, it said at paragraph 14:

“Overall, the healthcare offered to Ms A in Bronzefield was not equivalent to that she could have expected in the community.”


It is that provision that we are focused on—ensuring that expectant mothers in prison get the same care as they would have received in the community. The Government’s position is that we would rather focus on that than duplicate statutory provision.

[Lord Falconer of Thoroton (Lab)]

The amendment would not be duplicating anything because it contains specific provisions that are not referred to in the other statutory obligation, so it would be clear what was required.

[Lord Wolfson of Tredegar (Con)]

What is required is that women in prison have access to the same maternity services as they could expect in the community. My suggestion is that once that is set out, that is a sufficient legislative obligation and the Government need to ensure that it actually happens.

I hope that nothing I have said detracts from what I said right at the start, which is that we are appalled by what happened to Baby A. It must never happen again, and we are going to do all we can to ensure that it does not. However, for the reasons I have set out, I invite the noble Baroness to withdraw the amendment.

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[The Lord Bishop of Ely]

My Lords, I was not intending to speak to these amendments but, having been involved in prisoner resettlement in the past, I feel it is important to say that Friday release has a particular impact on younger women prisoners if their only option is a bail hostel. Women, as we know, are much more likely to find their family life disrupted than men during the often short sentences that they suffer. The noble Lord mentioned somebody being in a car round the corner. That very patient person who was managing that young woman as a sex worker before she went into prison will spend the whole day waiting to snatch her away and take her back to the life she was in before. When the alternative options are so dreadful for such young women, it is not surprising that there are the statistics on them falling back into the kind of oppression they knew before. Our whole approach to resettlement would be advanced hugely by these amendments being accepted by the Government.

[Lord Falconer of Thoroton (Lab)]

An incredibly powerful case has been made. We support it and I am grateful to the noble Earl, Lord Attlee, the noble Lord, Lord Hodgson, my noble friend Lady Lister and, in her absence, the noble Baroness, Lady Bakewell, for tabling these amendments. I completely adopt what my noble friend Lady Lister said about the total inadequacy of the reasons given in the Commons for not supporting this. The first was that it would mean there would be bunching of releases on other days, but if a third are on Friday already that seems a completely hopeless point. Secondly and separately, it was said that it is not used very much in Scotland; if it is not used very much, then the Government would not have much to worry about. Why not do it?

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful for the various speeches which have been given on these amendments, which, as we have heard, seek in different ways to avoid the release of prisoners on a Friday. Obviously, I understand the distinction between the two, although it is fair to say that they are both aimed at substantially the same point.

The current position is this. Section 23 of the Criminal Justice Act 1961 provides that prisoners whose release dates fall on a weekend or bank holiday should be released on the working day which immediately precedes that weekend or bank holiday. In most cases, that is a Friday, which is why, to make the obvious point, we have “bunching” on Fridays. If one would expect release dates generally to fall over the week, given the law of large numbers, you have Saturday and Sunday pushed back to Friday, plus the occasional bank holiday. We are very aware of and alive to the challenges that this can create in accessing support and services in the community. We are taking steps to mitigate those difficulties; I will turn to those in a moment.

First, however, the amendments seek to reduce releases on a Friday or non-working weekday by either preventing the court setting a sentence length that is likely to lead to release on those days, or by providing greater flexibility for prison governors to avoid Friday releases by giving the discretion to release earlier in the week. I heard what the noble Baroness, Lady Lister, said about the responses given in the other place: that the Minister there was clutching at straws. I think the noble and learned Lord, Lord Falconer of Thoroton, has set me the challenge to be better than “completely hopeless”. That is a bar I hope to surmount.

I assure the Committee that I am open-minded and have listened very carefully to the debate. While I am sympathetic to the need to tackle this issue, I do not agree that it is necessary to legislate in the way proposed by the amendments, and I will explain why. To do so would either undermine existing sentencing principles by preventing the court passing a sentence which is likely to result in release on a Friday, or it would allow prisoners to be released even earlier from their sentence. Legislation provides that prisoners are released on the working day closest to their statutory release date and we do not believe it is necessary to go further than that.

I will deal with sentencing first. It is not realistic or achievable to require a sentencing court to try to work out on which day of the week an offender would fall to be released and adjust the sentence accordingly to avoid that being a Friday, weekend or bank holiday. I would have thought that that is self-evident. It is obvious because a prisoner’s release date is something of a complex calculation. It is carried out by prison staff and depends on a number of different factors that a sentencing court would not necessarily be able to take into account. These could include: any other concurrent or consecutive sentences the offender might already be serving; the correct amount of remand time to apply on all relevant sentences being served; and any added days imposed for bad behaviour while serving the sentence.

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[Baroness Lister of Burtersett (Lab)]

The Minister may be about to come to the point I was going to make. The provisions in Amendment 211 are discretionary. If it is possible in Scotland, why is it not possible here?

[Lord Falconer of Thoroton (Lab)]

The Minister said that he was dealing with the amendments logically. He dealt with only Amendment 210 and did not deal with Amendment 211.

[Lord Wolfson of Tredegar (Con)]

I am coming to the point about discretion in Scotland. I will respond to that in a moment, if I may. First, I wanted to identify how we think we can best deal with the problems which bunching can give rise to. I absolutely agree that reducing further crime by those who have been released is critical. We have to cut reoffending and we know that a lack of suitable accommodation or sustainable employment, as well as substance misuse, can lead offenders to return to crime. Therefore, we need to ensure that people leaving prison on all days of the week, Fridays included, have access to services.

I will briefly identify four important things in this regard. In January this year, we announced a £50 million investment to reduce crime and tackle key drivers of reoffending. In July, we launched temporary accommodation for prison leavers at risk of homelessness in five probation regions, because we know that having access to transitional accommodation is very important. We have invested a further £20 million in the Prison Leavers Project, which tests new ways to reduce reoffending by addressing the challenges people face when they leave prison.

Police, Crime, Sentencing and Courts Bill

Lord Falconer of Thoroton Excerpts

Lords Hansard - Part 2 & Committee stage
Monday 15th November 2021 Lords Chamber

[Lord Paddick (LD)]

I am grateful for the clarification that the noble Lord has given, and I will allow noble Lords to read the official record and draw their own conclusions from what he said.

The noble Lord’s amendment manages only one of these risks—arguably the much lower risk. Each case should be, and is currently, managed on a case-by-case basis, and that should continue. We oppose the amendment.

[Lord Falconer of Thoroton (Lab)]

We, too, oppose the amendment. I think we all accept that transgender women are entitled to live in their chosen gender. The law protects transgender women and transgender men from discrimination because they are transgender men or transgender women. The position that is outlined in this amendment leads all transgender women to be consigned to the male prison estate—a point made very forcibly by the noble Lord, Lord Pannick. The moment one says that, one sees the total unthought-out nature of the amendment.

The way forward was, I believe, charted by the noble Lord, Lord Pannick, and the noble Baronesses, Lady Falkner and Lady Brinton. The noble Baroness, Lady Falkner, indicated in a powerful speech that one is dealing, in effect, with rights that may conflict: on the one hand, the right of a transgender woman to be properly protected, including in her choice to be a transgender woman, and on the other, the possibility that certain prisoners, including transgender women, can be a threat to other prisoners in the women’s estate. The way that that is dealt with at the moment was well outlined by the noble Baroness, Lady Brinton, in her excellent and detailed speech. The prison authorities deal with it on a case-by-case basis using a series of detailed processes. Should we continue with that, or should we condemn every gender recognition-certificated transgender woman who is charged—maybe not convicted —of a violent or sexual offence to being in the male estate?

For my own part, it is pretty obvious that one should continue with the current arrangements. I am sure that they could be improved—I am not in a position to detail any improvements that could be given to them—but that case-by-case basis must be a better approach than that adopted by the amendment in the name of the noble Lord, Lord Blencathra. I would go further and say that I do not suggest to the noble Lord and those who have also supported the amendment that they come back with something else. This is much better dealt with on a case-by-case basis, so we on this side of the House oppose the amendment. We do not think it is appropriate; we do not think it even tries to balance rights, and we would not support it coming back on Report.

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[Lord Russell of Liverpool (CB)]

I thank the noble Lord. If anyone else wants further clarification, I am sure other noble Lords who have read the Equality Act will come in and back me up.

A particular point that I think my noble and learned friend Lord Judge would have made, were he able to be with us, is that he is clear that this amendment and change to the Sentencing Act would be welcomed by the judiciary, who are often asked to make quite difficult judgments. This would make their ability to do so a great deal easier.

There is another important point. The noble Baroness, Lady Newlove, mentioned how some police forces around the country voluntarily started recording alleged misogynistic acts, primarily against women. We had a briefing last week, which I attended online, in which two of the police forces involved—Nottinghamshire Police and South Yorkshire Police—gave evidence, several years on, about how effective that was. The thing that came out clearly, which they find very frustrating, is that having amassed this information and passed it on to the Crown Prosecution Service, the way in which the CPS deals with the information and data that has been recorded and given to it as additional evidence when considering or making prosecutions is wholly inconsistent between different offices and areas. One of the virtues of inserting this amendment into the Sentencing Act is that it would make it crystal clear to the Crown Prosecution Service that information must be part of any case that is potentially brought before the judiciary, because this data is required to be considered when thinking about sentencing.

I commend this amendment to the Committee. It is simple, unambiguous and protects everybody.

[Lord Falconer of Thoroton (Lab)]

The following characteristics are protected under the Equality Act: age—something else that we do not need to worry about; gender reassignment; and sex. There are others, but those are the three. Sex being a protected characteristic means that you are entitled not to be discriminated against on the ground of your sex, whether you are a man or a woman. That means that if you are a transgender woman, you will be entitled to be protected on the grounds of sex because you are a woman, and on the grounds of gender reassignment. So, the noble Lord says that gender is not a protected characteristic under the Equality Act, but a person is entitled, as one would expect, not to be discriminated against because of their sex.

[Baroness Noakes (Con)]

I thank the noble and learned Lord, Lord Falconer of Thoroton, for his lesson in equalities law. My Amendment 219A was degrouped from Amendment 219 late last week. While it is drafted more broadly than Amendment 219, I tabled it to address the very same issues covered by Amendment 219. I therefore believe that, for the convenience of the Committee, I should speak to my Amendment 219A now. I hope that the other noble Lords who have added their names—the noble Baronesses, Lady Ludford and Lady Grey-Thompson, and the noble Lord, Lord Hunt of Kings Heath—will do so as well. On that basis, I will not move Amendment 219A in the next group. I hope that, given all the amendments left still to be debated, the Committee will welcome this.

My Amendment 219A, like Amendment 219, does have cross-party support, so the issues raised by both amendments are not party-political in any sense. Indeed, I find myself in the unusual position of being on the same side of the argument as the noble Baroness, Lady Ludford; neither she nor I ever thought that we would be in that position. I have two main problems with Amendment 219, the first of which is directly addressed by my Amendment 219A. Amendment 219 pre-empts the work of the Law Commission, which, as we have heard, has been working on hate crime for some time now. Its consultation document runs to over 500 pages, with over 50 dedicated to sex or gender.

The Law Commission has received many thousands of consultation responses and is now working on its final position. I believe that its work should conclude before we legislate in this area, and my Amendment 219A gives the Government a regulation-making power to amend Section 66 of the Sentencing Act 2020 to implement the Law Commission’s recommendations. That gives the Government, if they agree with and accept the recommendations, the fastest possible implementation route. The Law Commission’s final recommendations may well be controversial and therefore would not qualify for the special procedures for Law Commission Bills that we use in your Lordships’ House, if primary legislation were the route taken. Amendment 219A therefore uses the draft affirmative procedure to enable some additional parliamentary scrutiny.

I believe that it would be wrong for Parliament to anticipate the final views of the Law Commission. There are different views on both the principle and the substance of the extensions to the hate crime laws, and noble Lords would be wise to wait for the Law Commission’s final recommendations, rather than proceed on the basis of its provisional views.

On the extension of hate crimes to sex, the Law Commission was clear that it believed that two of its criteria for amending the hate crime legislation—demonstrable need and additional harm—were met, but it was far less clear that its third criterion of suitability was met. To mitigate that, its consultation includes some very significant potential carve-outs, covering, for example, domestic abuse and sexual offences so that, if hate crime were extended to sex, the very crimes that I know some noble Lords are particularly concerned about might not be included in the Law Commissioner’s final recommendations. This is not an area where there is a settled view about what should be done.

My second problem with Amendment 219 is a substantive one about whether, if hate crime laws are extended to sex, they should be—

[Lord Falconer of Thoroton (Lab)]

Does the noble Baroness know when the Law Commission might produce its final report and what the timetable thereafter would be—for example, how long there would then be before the Minister has to respond and how long thereafter before there would be some provision in relation to it?

[Baroness Noakes (Con)]

I think that was a trick question from the noble and learned Lord, Lord Falconer of Thoroton.

[Lord Falconer of Thoroton (Lab)]

It is not a trick question; I would have thought that that piece of information might be quite important to evaluating her amendment.

Police, Crime, Sentencing and Courts Bill

Lord Falconer of Thoroton Excerpts

Lords Hansard - part one & Committee stage
Wednesday 17th November 2021 Lords Chamber

Moved by

[Lord Falconer of Thoroton]

219B: Clause 132, page 124, line 35, at end insert—
“(8) After section 102, insert—“102A Centralised monitoring of court decisions to impose youth custodial remand (1) Within six months from the day on which the Police, Crime, Sentencing and Courts Act 2021 is passed, the Secretary of State must nominate a body to collect, analyse and publish data on the decision-making process of courts when sentencing a child to custodial remand.(2) “Decision making process” refers to the consideration and application of the required Conditions for the custodial remand of children by the court, as set out in the Legal Aid, Sentencing and Punishment of Offenders Act 2012.(3) A report on the findings must be laid before Parliament and published on an annual basis.(4) The first report must be published and laid before Parliament no later than 18 months from the day on which the Police, Crime, Sentencing and Courts Act 2021 is passed.””Member’s explanatory statement
This amendment seeks to introduce centralised monitoring of the youth remand decision-making process.

[Lord Falconer of Thoroton (Lab)]

Before we come to this important group of amendments, I have one housekeeping matter. As noble Lords are aware, the amendments have been marshalled according to the instruction of 13 October 2021, and that puts Clauses 55 to 61 towards the end of our Committee stage. If noble Lords who have the ninth Marshalled List of amendments go to Amendment 319A, they will see a number of pages of government amendments which, in effect, introduce a range of new offences and new powers for the state. In effect, they introduce the offences of locking on and of being equipped for locking on, and they change the law on wilful obstruction of the highway and on obstruction of major transport works.

This is not for the noble Lord, Lord Wolfson, but it would be convenient if the Government, at some stage during Committee, indicated how they intend to deal with the pages and pages of amendments. A whole new structure of offences is being introduced in Committee in the Lords without the stages in the Commons having been gone through and without a Second Reading on those issues. This is not for now, because I have given no warning of it, but it will take as long as it takes to get an answer as to whether special provisions will be made, whether the Government intend to stop the Committee and have a Second Reading, or whatever. Whatever the plans are in relation to this, we on this side of the House—indeed, I think the whole House—would like to know, so we can think about how we deal with it, because it is an important issue.

The group we are about to deal with concerns youth justice. We are into a new part of the Bill and part of this group will raise issues about the age of criminal responsibility. The only reason I am starting is because my Amendment 219B requires the centralised monitoring of court decisions to impose youth custodial remands. As noble Lords will know, a whole new regime of remanding people aged 10 to 17 in custody was introduced by the LASPO Act in 2012. It gives rise to very practical difficulties throughout the country in relation to finding appropriate places to remand people of that age in what is, in effect, detention of some sort. There is no centralised monitoring.

In responding to this amendment, will the Minister indicate what the current arrangements are for monitoring this nationally, and what is the Government’s proposal, if any, for making sure that national statistics are regularly available? Without such statistics, it is difficult to have an informed debate about what additional provision is required, save to say that the experience on the ground is that there needs to be more proper provision over a range of options. I beg to move.

[Baroness Butler-Sloss (CB)]

My Lords, I shall speak to Amendment 220. I feel very strongly about the issue of the age of responsibility of children. I first raised it in this House in 2006, when a Labour Government dismissed it out of hand. I was for 35 years a family judge dealing with children; I happen also to have brought up three children, and I care about children. In 2006, what is now known about young children and the maturation of their brains was not particularly well known, but a great deal of evidence has now come forward. It was looked at by the Select Committee on Justice in the other place in November of last year.

Psychiatrists gave evidence, in particular about the fact that young children aged 10—and, for goodness’ sake, a child of 10 is young—do not really mature until considerably later. We have only to look at what is happening across Europe as an example. Scotland has raised the age to 12. The age of responsibility across Europe is either 12 or, in more places, 14. We remain at 10. I think it is probably because successive Governments, on both sides of this House, are afraid of what the public will say.

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[Lord German (LD)]

My Lords, I too have added my name to Amendment 221A, which would make youth diversion schemes statutory. I will say a few words about that, as well as about Amendment 219B in the name of the noble and learned Lord, Lord Falconer.

Formal criminal justice system processing—for example, through prosecutions or out-of-court disposals—makes children more, not less, likely to offend. The further a child is processed inside the formal criminal justice system, the greater the likelihood of reoffending, especially for lower-risk children. There is strong evidence both nationally and internationally that youth diversion can reduce crime, cut costs and create better outcomes for children. However, it is currently a non-statutory function for youth offending teams.

We know that practice varies considerably between areas and that some areas have no diversion scheme at all. The 2019 mapping exercise carried out by the Centre for Justice Innovation found that, of the 115 youth offending teams responding, 19 said that they did not have a point of arrest diversion scheme. There is a wealth of great work going on across the country, but there is a dearth of best-practice exchange. I believe that it is quite correct that there should be the principle of local decision-making because that can bring together the wide range of partnerships needed to make any programme work. Keeping it local means that the team can do its work best.

However, the picture is of a set of procedures that are variably practised—some with both breadth and depth, and some without one or other of those attributes. Locally, practitioners are dedicated and have built up some very impressive practices, but in many areas the eligibility criteria are unduly strict, the referral processes slow and the interventions too lengthy. Youth offending teams are not to blame for the variation we see. Because it is non-statutory, we lack robust data and data analysis. Many youth offending teams struggle to keep their services within budget, and staff and funding may not always keep pace with the increased workload, especially when it is non-statutory.

We need a better understanding of what is happening on the ground, where the gaps in provision are, how good schemes can be supported and how good practice can be passed on. The way to achieve this is to make the service statutory and to support the work with funding as necessary. Amendment 219B, in the name of the noble and learned Lord, Lord Falconer of Thoroton, has much the same knowledge request. Basically, you cannot know what you do not know, and if you do not know what the figures and statistics are, you will be unable to take action accordingly. Understanding this better matters both locally and nationally. I believe that making this statutory would ensure that the good practice which abounds in our country is given the opportunity to grow even more, so that we can divert as many young people as possible from the criminal justice procedure. But to do that, we need certainty, and this amendment provides it.

[Lord Falconer of Thoroton (Lab)]

My Lords, I join noble Lords in wishing the noble Lord, Lord Dholakia, well and a fast recovery. He has played an important part over many years in the debate on child responsibility and the criminal responsibility age. We miss him today in this debate.

I also express my unconditional support for Amendment 221A in the names of the noble Lords, Lord Marks and Lord German, which would put pre-charge diversion schemes on a statutory basis. As the noble Lord, Lord German, said, these good schemes are present in many places; it would be a good thing if they were put on a statutory basis.

I agree with many of the points made by the noble Baroness, Lady Sater, on Amendment 221B. I will be interested to hear what the noble Lord, Lord Wolfson, says about it. I do not know whether a review of the whole sentencing position in relation to the youth court is the right answer—let us see what the Minister has to say—but the noble Baroness’s points were powerful and important, and the Government need to deal with them.

The main issue in the debate on this group is the age of criminal responsibility. The case for increasing it has been made overwhelmingly and I agree with it, particularly the point about evidence on the maturation of children and whether they should be viewed in the same category. I strongly support the view that that would increase reoffending because it would make a child see himself or herself as a criminal, which is bad for society. I was also influenced by the point that we are an outlier and that what we do with children, whether in the care system or in the criminal justice system, should not be different.

I have one big concern, however. I do not accept the characterisations of the noble Lord, Lord Marks, and the noble and learned Baroness, Lady Butler-Sloss. Both referred to the incredibly tragic Bulger case, saying that you should not give way to pressure because it does not show leadership when dealing with a case like that; the noble and learned Baroness referred to the tabloids. What happened in the Bulger case was awful and had an utterly legitimate effect on the Merseyside community. To try to dismiss that as something “got up by the tabloids” is, in my respectful view, to misunderstand utterly the significance of the event. Also, if you speak to people who were involved in the Bulger trial, you realise that it was an incredibly important trial. It lasted a month and brought to the fore a whole range of things that were troubling the community, and it also identified what had happened.

For justice to work in our country, it must to some extent reflect reasonable views about what should happen. I do not say that as a result of the Bulger trial, the age of criminal responsibility should be 10. But in considering how to deal with the age of criminal responsibility, which may well go up to 12—the evidence on that is overwhelming—you have to have a justice system that functions properly to deal with that sort of case. Otherwise, the community reacts not because they are inflamed by the tabloids, but honestly and in a normal way to what has happened.

Jamie Bulger’s parents, quite legitimately, made public what had happened and the community knew what had happened. The justice system must be able to deal with that, perhaps through some sort of intermediate proceedings; however, we do need to address this. To those noble Lords, such as the noble and learned Lord, Lord Brown, who say that it casts a long shadow, I say this: it does and it is still there, and it must be dealt with.

Subject to that, I am in favour of increasing the age of criminal responsibility from 10 to something higher. I am not as dismissive as other noble Lords of having some sort of review to deal with this. It would need to look at the issues raised by the noble Lord, Lord Hogan-Howe, which are important. Also, if you are taking 10 to 12 year-olds out of the criminal justice system, it would need to consider how to deal with the issues raised by the Bulger trial, perhaps not through criminalising but through some other process.

[Baroness Butler-Sloss (CB)]

My Lords, the noble and learned Lord misunderstood, if I may say so, what I was saying. Of course one had to treat the Bulger case with great care. I had a part in giving what were by then two young men lifetime anonymity, so I had to learn a great deal about what went on. Of course they had to be dealt with severely but what should happen in the future, in another case, should be, under the Children Act, secure accommodation, where they could have been kept as long as if they had been criminalised. I was merely using that appalling Bulger case as an example of how 84,000 people thought that they should stay in prison for ever, until they died. My point was not to treat the Bulger case as less serious; it was unbelievably serious. As the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said, it has cast a long shadow, which continues today. The Bulger case was wrong in that the children should not have been tried in an adult criminal court. It was purely and simply to show the punitive element in this country, which had a marked effect on the noble and learned Lord’s Government. When I raised this issue in 2006, I was dismissed summarily, it being seen as quite unsuitable to raise the age from 10 to 12. That Government were without the evidence that there is today, but, for goodness’ sake, they also took the view that Lucy Frazer took to Sir Robert Neill’s committee.

[Lord Falconer of Thoroton (Lab)]

My Lords, that was my fault. I was not for one moment suggesting that the noble and learned Baroness, Lady Butler-Sloss, was saying that the Bulger case did not require enormously sensitive handling, nor that she was in any way underestimating the seriousness of it. I was seeking to say that the fact that there were tabloid campaigns about it and that people were very concerned about it was absolutely legitimate. What they were asking for was not necessarily legitimate, but there was very real concern. Obviously, there must be anonymity, but if the matter is dealt with entirely in the care system, without any public element of how the law is dealing with it, then the community never gets satisfaction in relation to what is happening. By satisfaction, I mean that there must be some recognition within the justice system of the appalling nature of what has happened.

[Lord Carlile of Berriew (CB)]

Surely the noble and learned Lord is not saying that the public aspect of this, which he describes rightly, must be dealt with by a criminal trial. Numerous other mechanisms can be used. An inquiry, for example, can ventilate all the public factors that need to be discussed without the artifices of a criminal trial for 10 year-olds.

[Lord Falconer of Thoroton (Lab)]

I agree that it does not need to be dealt with in a criminal trial, but there needs to be some process. Before one increases the age of criminal responsibility from 10 to 12, which we should do, this must be looked at. This is why I rather favour the second amendment, tabled by the noble Baroness, Lady Chakrabarti, which is a review of this, because broadly the case is made in relation to it. It probably should not be something ad hoc, as is the nature of an inquiry, but it should have some recognition that cases such as the Bulger case, which have a significant effect on not only the local but the national community, must be dealt with in a special way.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I associate myself with everything that the noble and learned Baroness, Lady Butler-Sloss, and the noble Lord, Lord Carlile, have said. I am not sure that the noble and learned Lord, Lord Falconer, has accepted my point, which to a certain extent is the same as that made by the noble and learned Baroness, Lady Butler-Sloss, that we do not wish to reduce or minimise the importance of the Bulger case. My point is that, where publicity is as extensive as it was following that case and where the publicity seems to be directed as in the example that the noble and learned Baroness gave, producing a result where children under the age of 12 would be sent to prison for life and be treated by ordinary criminal process, which is entirely unsuitable for children of that age, the Government must show moral leadership and change the position based on the evidence, rather than taking a political view that it might be easier to duck the question when the evidence is so clear. That is the point that I invite the noble and learned Lord to take. I understand that he supports the increase in the age of criminal responsibility, but I do not hear him saying that the Government must show the leadership to do that in spite of publicity to the contrary.

[Lord Falconer of Thoroton (Lab)]

I accept that the age of criminal responsibility should go up. I strongly endorse what everybody is saying about the Government and, in particular, I endorse what the noble Lord, Lord Marks, is saying about the Government showing leadership in this respect. I also endorse what he says about the Government needing to show leadership in standing out against campaigns that seek to criminalise people under 10 or, in the campaign that he was referring to, between 10 and 12. My point, which I keep coming back to, is that this Committee should not underestimate, or treat as simply got-up, campaigns concerning the justice system, which in some ways expands beyond the criminal justice system, in cases such as the Bulger case.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)]

My Lords, these amendments concern youth justice matters. I will address each of them in turn.

Amendment 219B, tabled by the noble and learned Lord, Lord Falconer of Thoroton, would require the centralised monitoring of youth remand decisions made by the court and the laying of a report of findings before Parliament on an annual basis. I understand that the amendment’s purpose is to improve the scrutiny and monitoring of youth remand trends. However, that is precisely what our measures seek to achieve, as I will explain, while leaving the detail of operational processes to the various operational bodies. We think that this is the better way to do it.

The new measures will require the court to be explicit that they have considered not only the two sets of conditions but the interests and welfare of the child. Furthermore, while at the moment the court only has to explain the reason for remand in open court and specify it in the warrant and in the register, our new subsection (5)(za) requires that the court also gives the reasons in writing to the child, their legal representative and the youth offending team, which will enhance the ability of those justice partners to monitor the reasons for custodial remand.

Turning to the specific question put to me by the noble and learned Lord, Lord Falconer, on what arrangements are in place for monitoring courts’ decisions and whether statistics are readily available, as I have said, courts already state in open court their reasons for remanding the child to youth detention accommodation. That information is included on the warrant of commitment and the court register. Pronouncement cards from the Sentencing Council provide guidance to the judiciary on how to do that.

As for statistics, my department already publishes annual statistics on court outcomes on youth remand. The population on remand in the youth custody estate is published monthly. We have new IT systems being developed and, in light of those new systems, we will reconsider the best way to collect, analyse and, so far as is appropriate, publish the information that courts will now be required to provide in writing. However, it is best to leave that granular level of operational process to the entities doing the work on the ground, rather than to prescribe it in statute. Our intentions are certainly aligned. I am sure that the noble and learned Lord will appreciate the need for pragmatism in how best to achieve that.

Amendments 220, 221 and 221ZA seek to raise the age of criminal responsibility from 10 to 12 and to require the Secretary of State to complete a review of the age of criminal responsibility including, as my noble friend Lord Sandhurst explained, an assessment of the protected characteristics of children in detention, under the Equality Act. I listened very carefully to my noble friend and, I think it is fair to say, I set out the position on that in some detail on Monday. With respect, I am not going over that again. I hope I made the Government’s position clear on Monday.

I am grateful to the noble and learned Baroness, Lady Butler-Sloss for raising Amendment 220. I am aware, as she said, that she has brought this to the attention of the House on a number of previous occasions. As far as open ears are concerned, I assure the noble and learned Baroness that my ears are always open. I listened carefully to her speech and the speeches of the noble and learned Lords, Lord Brown of Eaton-under-Heywood and Lord Thomas of Cwmgiedd. I join other noble Lords in wishing the noble Lord, Lord Dholakia, who is absent, a speedy and full recovery.

I will set out the Government’s position on this issue. We believe that setting the age of criminal responsibility at 10 provides flexibility in dealing with children, allowing early intervention with the aim of preventing subsequent offending. Our primary objective when it comes to children, as I have made clear on previous groups, is to prevent children offending in the first place. Where there is offending, we need to provide the police and courts with effective tools to tackle it. Critically, having the age of criminal responsibility at 10 does not preclude other types of intervention—for example, diversion from the criminal justice system—where it would be a more suitable and proportionate response. To that extent, I agree with the noble Lord, Lord German, that diversion from the criminal justice system should be at the heart of how we approach children in the vast majority of cases.

When considering the most appropriate and proportionate response to offending by a young person, the maturity and needs of a child, as well as their age—to make the obvious point, a 12 year-old is not a 17 year-old—are always considered. We also consider protected characteristics in our work, as per the public sector equalities duty. This is borne out in practice. Most children aged 10 to 14 are diverted from the formal criminal justice system or receive an out of court disposal. The number of children aged between 10 and 12 years in the youth justice system has fallen dramatically since 2009, and we are keen for that downward trend to continue. Since 2010, which is more than a decade ago, no 10 or 11 year-olds have received a custodial sentence.

It is, however, important—to this extent, I adopt the remarks of the noble and learned Lord, Lord Falconer of Thoroton—to ensure that, when appropriate, serious offences can be prosecuted and the public protected. The horrific Bulger case has been mentioned by a number of noble Lords and I remember it clearly. I grew up in Liverpool and it shocked my native city to the core. Whether we are talking about the Bulger case or any case involving children, even the most serious, there is a distinct and separate sentencing framework for children aged 10 to 17, which recognises that they have their own specific needs that require a different and more tailored approach. That looks at age, so someone aged 13 is treated differently from someone aged 17 and a half. As noted by the noble Lord, Lord Carlile of Berriew, that pervades the approach of the criminal justice system to children. It is not a matter just of clothing, words or wigs; there is a fundamentally different approach tailored to dealing with children.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

I am grateful to my noble friend for the question, and for taking the time to discuss it with me in the past. Because the offender is 18 at the time of the case and of the sentence, the system has to respond to the fact that they are now adult. It may well be, in some cases, inappropriate to lump that adult in with children. Some sentences and responses that the youth court can give to children would be inappropriate for someone who is now an adult of 18. I suggest that the fact that the court starts with the sentence that would have been appropriate at the time of the offence, and then takes into account all other relevant factors, means that we deal with these cases suitably, bearing in mind the time gap before sentencing during which the offender has reached legal maturity.

[Lord Falconer of Thoroton (Lab)]

My amendment was the monitoring amendment and was not the heat and burden of this debate. I beg leave to withdraw the amendment.

Amendment 219B withdrawn.

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[Lord Wolfson of Tredegar (Con)]

My Lords, Amendments 222 and 223, which I move today on behalf of the Government, are technical amendments to Clause 139, which clarifies that 16 to 19 academies can provide secure accommodation and allows for the establishment and running of secure 16 to 19 academies to be treated as a charitable purpose. The amendments, as can be seen from the Marshalled List, are a technical tweak, and will have no practical impact on the children or young people placed in these secure academies, or on how the academies are run. They are simply there to ensure consistency with other education legislation. “Pupil” is defined in the education Acts to refer to those attending a school; 16 to 19 academies are not, in the legal sense, schools, and “student” is the standard term used in the context of such academies.

I am conscious that this group also contains amendments from the noble Lord, Lord German, on the organisations which can establish a secure school, and from the noble Lord, Lord Ponsonby of Shulbrede, on local authorities’ secure accommodation provisions. I propose, if the Committee finds it helpful, to pause my remarks now, having introduced my amendments, and allow other noble Lords to speak to those amendments, and then I will respond. I see some nodding heads. If that meets with the Committee’s approval, I will sit down, having formally moved my amendments.

[Lord Falconer of Thoroton (Lab)]

I am going to talk about Amendment 223B onwards; Amendment 223A comes first, but I am happy to start with those.

Amendments 223B to 223F have been suggested by the Mayor of London’s office to place a new duty on relevant local authorities in England to convene a new secure accommodation local partnership board that would assess the need for secure accommodation and develop a strategy for tackling any shortfall in secure accommodation. There is, as everybody knows, a significant lack of secure beds in London for young people who come into contact with the criminal justice system. This results in them being dispersed across the country, far away from their families and the professionals committed to their care and well-being.

While this is a particular concern in London, it is also the case in other parts of the country. There are only 15 secure children’s homes in England and Wales, and none in the London area. The recent decision of the Ministry of Justice to remove all children from a key institution detaining young offenders in the United Kingdom—namely, the Rainsbrook Secure Training Centre—meant that more London children were sent away from where they lived. They are being provided with neither the care nor the welfare that they need as vulnerable young people. The recent critical inspection report on the Oakhill Secure Training Centre, alongside the decision to close Rainsbrook, also raises worrying concerns about the future of this type of facility.

It is crucial that such provision is available for those who might be placed there on welfare grounds and for those within the criminal justice system. Amendments 223B, 223C, 223D, 223E and 223F, in the name of my noble friend Lord Ponsonby, give effect to this proposal.

[Lord German (LD)]

My Lords, I apologise for being slightly out of turn; I will speak to Amendment 223A in my name and that of my noble friend Lord Marks, on secure accommodation and local authority provision. In December 2016, the Government committed to phase out juvenile young offender institutions and secure training centres and to replace them with a network of secure schools. These have since been renamed secure 16 to 19 academies. Legally, they will be approved by the Secretary of State for Education as secure accommodation and are defined in the Bill as “secure children’s homes”.

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[Lord Wolfson of Tredegar (Con)]

It might well be that it operates in a slightly circuitous way. I have not looked at that section myself. Let me look at it after I sit down. If I need to upgrade, so to speak, what I have said, I will write to the noble Lord, because I do not want to understate the position if I have inadvertently done so. I will look at the section later—I hope, today.

The noble Lord, Lord Carlile of Berriew, said that it is not so much about the name of the institution as about what goes on within it. On that, I strongly agree, as I do on the importance of education in this context, especially in the example given by the noble Lord, of somebody who it appears had not had the benefit of any education before. That is therefore especially appropriate.

At the same time as what I said earlier about local authorities, it is right to say that local authorities have a statutory duty to safeguard and promote the welfare of children in their local area. We would therefore expect secure school providers to work closely with local authorities in relation to the well-being of children in their care. It is important to note also that secure children’s homes, which can be run by local authorities, remain an important part of the current and future youth custodial estate.

Let me deal particularly with the profit motive, which seemed to lie at the heart of a number of contributions to this debate. As academies, secure 16 to 19 academies will be state funded with the core charitable purpose of providing education for the public benefit. All academies, including 16 to 19 academies, are part of an academy trust, which is a not-for-profit charitable entity and, as such, cannot make a profit—or, to be more precise, any profits which are made have to be ploughed back into the purpose of the trust. Secure schools will always be run by non-profit organisations. I therefore hope, in light of what I have said, that it will be appreciated that the second part of this amendment, proposed new subsection (9), preventing profit corporations establishing or maintaining these academies, is unnecessary.

On Amendments 223B to 223F, presented to the Committee by the noble and learned Lord, Lord Falconer of Thoroton, I have assumed that these amendments are intended to apply to children looked after by local authorities, but it is worth noting that secure accommodation is used more widely, including for children who are detained by the police and for children who are sentenced or remanded as part of criminal court proceedings.

Local authorities have a duty under the Children Act 1989 to ensure sufficient appropriate accommodation for all the children they look after. I recognise that some local authorities have found it difficult accessing in practice the most appropriate accommodation, particularly for children with the most complex needs. The lack of available and suitable placements for those most vulnerable children is extremely concerning and is something which I and the Government take seriously. We are taking significant steps to support local authorities to fulfil their statutory duties. A programme of work is starting this year to support local authorities to maintain existing capacity and expand provision in secure children’s homes. That means that children can live closer to their previous home and in provision which best meets their needs.

Let me deal specifically with Rainsbrook, to which the noble and learned Lord referred. The situation there is completely unacceptable. We acted decisively to empty the site. All children have now been removed from Rainsbrook. We transferred them to alternative appropriate accommodation within the youth secure estate. We are working through the contractual options with MTC on the future of that contract. When we have completed that work, we will make a further announcement.

In response to the recent concerns about performance at Oakhill, the former Lord Chancellor commissioned Ofsted to undertake a monitoring visit. That took place on 13 September. The report was published within a month, on 11 October, and noted concerns that inspectors had had. Having subsequently attended the centre for a full annual inspection at the beginning of October, Ofsted, together with the Chief Inspector of Prisons and the Care Quality Commission, invoked the urgent notification process at Oakhill on 14 October; that is, within the last month. On the 11th of this month, a response was published to Ofsted and the accompanying action plan, and we are now considering plans to ensure sufficient accommodation for those children at the site.

The spending review announced another £259 million to continue the programme to maintain capacity, expand provision and support local authorities in this regard. There is also the independently-led care review to support improvements to children’s social care and ensure that good practice is applied to every child. That review is expected to be published in the spring. I do not want to pre-empt it now, but we are alive to the particular needs of the children in this cohort.

I have received a note—I will keep my word to look at this matter again later—which indicates that the noble Lord, Lord Marks, may have erred. It is such an astonishing proposition that I will check it for myself later. I am told that he may have nodded in the sense that Section 6 relates to schools being converted to academies. It has no impact on local authorities entering into funding agreements with the Secretary of State. Whether the noble Lord has misunderstood, or whether the note I have been provided with is somewhat cryptic, I will keep my promise to look at it myself later in the day.

[Lord Falconer of Thoroton (Lab)]

The Minister mentioned £259 million in relation to the secure training programme. I may have not quite heard what he said. Is that new money or is it just maintaining the existing amount of money per annum?

[Lord Wolfson of Tredegar (Con)]

My understanding is that the £259 million was announced in the spending review to continue the programme to maintain and expand capacity in both secure and open residential children’s homes. I am not able to say any more than that; it might be a question for my Treasury colleagues to clarify. However, I am also able to clarify it to the noble and learned Lord. Perhaps I can drop him a line on that specific point.

Police, Crime, Sentencing and Courts Bill

Lord Falconer of Thoroton Excerpts

Lords Hansard - part two & Committee stage
Wednesday 17th November 2021 Lords Chamber

[Earl Attlee (Con)]

My Lords, my role as a loyal government Back-Bencher is to help my noble friend the Minister, and I think I can do that best by strongly supporting these amendments.

[Lord Falconer of Thoroton (Lab)]

We on this side of the Committee strongly support these excellent amendments. The Youth Justice Board was set up in 1998. Its first chair—a Member of this House, the noble Lord, Lord Warner—gave it a really good start. The whole point is that it gives real drive, not as part of government but within the state, to make changes, because everybody recognises that children and young people have different needs, both to divert them from the criminal justice system and when they are there. Similarly, in respect of women, this is a real opportunity; give it drive.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)]

My Lords, as the amendments’ explanatory statements make clear, and as the noble Lord, Lord Marks of Henley-on-Thames, identified, the intention is to provide for the establishment of a women’s justice board for England and Wales which mirrors the rather lengthy provisions setting up the Youth Justice Board. I am grateful to the noble Lord for his kind words. I can assure him that I gave his amendment very careful thought, and my approach to it has not been adversely affected by the support given to it by the noble Baroness, Lady Jones of Moulsecoomb. I also heard what my noble friend Lord Attlee said about his role being to help me: with noble friends being so helpful—well, I will leave that one there.

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[Lord Marks of Henley-on-Thames (LD)]

My Lords, I will not address the detail of the noble Earl’s amendment, but I agree with the noble Baroness, Lady Jones, and the noble and learned Lord, Lord Hope of Craighead, that there is a great deal of merit in the call for more and better training within the penal system. We have long taken the view that training within prisons in particular is inadequate, poorly arranged and often unavailable. We therefore commend the noble Earl for the thrust of his amendment and certainly commend him for the care and dedication that he has given to setting it out in detail and in the briefing that he circulated.

We are not convinced of the need for a new sentence of detention for training at Her Majesty’s pleasure but we agree with the heart of the amendment, which is the focus on skills to train for future employment, for which there is a great need. The classroom-style of training does not always work. What is needed is training for skills on the job and for soft skills because, as the noble Baroness, Lady Jones, pointed out, not everyone is suitable for the basic training that perhaps the noble Earl has in mind. There should be a combination of practical, soft and technological skills. We are all for better training. However, we seek the Government’s work to be directed towards the provision of that sort of training—better training and more of it—within the criminal justice system and overcoming the barriers to prisoners being work-ready by the time they finish their terms of imprisonment because, at the moment, there is a serious deficiency in that area.

[Lord Falconer of Thoroton (Lab)]

My Lords, I join noble Lords in commending the noble Earl for the effort and work that he has put into this and the fact that he has thought it through. I also commend what the noble and learned Lord, Lord Hope of Craighead, said. It was obviously not a detention for training centre that he was passed to, but his experience was successful in diverting him from the criminal justice system. That is an indication that it worked, even if he ended up in the criminal justice system as the Lord President of the Court of Session and a member of the Supreme Court.

I very much agree with what the noble and learned Lord, Lord Hope, the noble Lord, Lord Marks, and the noble Baroness, Lady Jones, said. There are parts of this that we would all agree with. However, we on this side would not support this as a separate sentence. If one looks at the detail, it requires the setting up of a number of rural detention centres. The right thing is for the Government to look at the elements aimed at trying to rehabilitate those in the criminal justice system and use them in the existing system, rather than setting up a whole new network. We admire the noble Earl’s work but think that this is not the appropriate way forward.

[Lord Wolfson of Tredegar (Con)]

My Lords, the amendment from my noble friend Lord Attlee would seek to introduce a new sentence of detention for training at Her Majesty’s pleasure. It is aimed at offenders who are at least 18 and under 27. The key principle is that release would be gradual and dependent on the offender reaching the required performance levels in conduct, education and training. It would be served in training sites in remote rural areas.

I thank my noble friend sincerely for presenting his genuinely interesting idea—I was going to say “novel”, but we have all watched “Yes Minister”. He has done what he said others have not by thinking positively and constructively about what we can do in the future, rather than just criticising what we do now. I think that we all share his desire to reduce the reoffending rate for young adults. Training and education can enable people to turn their lives around and stop reoffending. I reassure my noble friend and the Committee that the Government are already taking action that addresses those issues.

My noble friend is right to be concerned that offenders leave prison illiterate and innumerate and is right to say that that significantly increases the prospects that they will reoffend. We all share those concerns. I can reassure the Committee that many offenders already achieve accredited qualifications in the fundamental basic subjects of English and maths while in prison. We recently published data that shows that, between April 2019 and March 2020, over 30,000 prisoners started English and maths courses and over half of this number completed the courses and received accreditations. Over and above that, many more will also have undertaken vocational training. However, we are not sitting on our laurels. We recognise that there is more to do. We welcome external scrutiny by the Education Select Committee, which has launched an inquiry into prison education, and Ofsted, which recently announced that it will be conducting a review of reading in prisons.

On employment, we want to make sure that the prison education and skills offer for prisoners is aligned with what employers want and need. We know that there is a correlation between getting a job when you come out of prison and not reoffending. We want to prepare prisoners for employment and the Deputy Prime Minister has made that a clear priority. We want to have partnerships with more businesses and build on the work that we already do with companies such as Halfords, Timpson and Willmott Dixon. We are also making sure that the Civil Service plays its part. In the beating crime plan, we have committed to recruiting 1,000 prison leavers into the Civil Service by 2023.

Over and above that, we want to make sure that we have effective community supervision. Not only will that keep the public safer by providing early intervention, it will deflect offenders away from future offending as well. We set out in our sentencing White Paper an agenda of reform for not only punishing but, importantly, rehabilitating low-level offenders. We have set out a number of measures in this Bill as well: problem-solving courts, suspended sentence orders and extending the use of electronic monitoring. I believe that those measures will support offenders to change their lifestyles for good. In that, of course, I share the aims set out by the noble Lord, Lord Marks of Henley-on-Thames, and the noble and learned Lord, Lord Falconer of Thoroton.

Police, Crime, Sentencing and Courts Bill

Lord Falconer of Thoroton Excerpts

Lords Hansard - part one & Committee stage
Monday 22nd November 2021 Lords Chamber

Moved by

[Lord Falconer of Thoroton]

268: After Clause 170, insert the following new Clause—
“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.”Member’s explanatory statement
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.

[Lord Falconer of Thoroton (Lab)]

My Lords, Section 28 of the Youth Justice and Criminal Evidence Act 1999 allows for the cross-examination of vulnerable witnesses and victims of adult sexual assault to take place separately from the trial. The purpose of this provision—following Section 27, which allows evidence in chief to be given before the trial—is to allow a victim of adult sexual assault to give their evidence in chief and be cross-examined in a period quite shortly after the incident. It means that they do not have to wait a very long time for what will be a terrible ordeal. It means that they give evidence at a point when the events are only recent, rather than after a long period has gone by.

There is nobody, I think, who does not regard these provisions as beneficial. The purpose of this amendment is to ensure that they are as available as possible throughout the Crown Court estate in England and Wales. My understanding of the position is that they are available in respect of the victims of adult sexual assault only in certain specified Crown Courts in England and Wales. This amendment seeks to ensure they are available everywhere and as soon as possible, by saying they would be, in effect, available on the day this Bill becomes law.

It has been said that one of the reasons for not making the provisions available is that they require judicial resource—you need a Crown Court judge in order to hear the evidence, even though it is separate from a trial. It strikes me as very odd that adult sexual violence is not a priority of the Crown Courts. If judicial resources are the problem, my suggestion would be that making resources available to hear the victims of serious adult sexual assault should come sufficiently high up the priorities so that there is a judge available to deal with it. On that basis, I beg to move.

[Lord Thomas of Gresford (LD)]

My Lords, I very much understand the impatience of the noble and learned Lord, Lord Falconer, for the introduction of video recordings of cross-examination in cases involving sexual offences and modern slavery. It is important that evidence in such cases is given early and without pressure. However, I have some queries about the amendment.

The Government have introduced by stages these provisions under Section 16 of the Youth Justice and Criminal Evidence Act 1999 for witnesses

“under the age of 18 at the time of the hearing”

and witnesses suffering “from mental disorder” or

“a significant impairment of intelligence and social functioning.”

The section also provides for witnesses with a physical disability. Various courts have been permitted to hear evidence in these circumstances, culminating in March of this year, when the provisions were extended to Preston Crown Court. But it was only on 30 September—six weeks ago—that the provisions were extended under Section 17(4) for complaints in respect of a sexual offence or a modern slavery offence. Only four courts were involved—Durham, Harrow, Isleworth and Wood Green. I have not seen any evaluation of the use of these procedures under Section 16, although they were piloted as early as December 2013 in Kingston, Leeds and Liverpool. I would be grateful if the Minister could tell me whether such an evaluation exists and, if so, whether it could be made available.

As for the proposal in this amendment to extend the provisions wholesale under Section 17, it is obviously too soon to evaluate limited pilots from the end of September. There can surely not have been time yet for any direction to be made by any judge of the three courts for such special measures for sexual offences and modern slavery.

Since I have no personal experience of these measures, I would be grateful if the Minister could inform me how they take place. As I read the legislation, the witness gives evidence to the court in the presence of the judge and counsel on both sides but in the absence of the accused. The accused is, however, entitled to watch the proceedings and communicate with his legal representatives. How exactly would this be organised? Is the accused in another part of the building, watching from prison, or what? In what way is this less intimidating to the witness than, for example, giving evidence down the line at the time of trial—a proceeding with which we have been familiar for some years?

My concern is that the distancing of the witnesses from the jury is artificial enough when it takes place at the time of the trial. But in my view it is even greater when the jury know they are watching a recording of examination and cross-examination which happened months, possibly even a year, before. While I appreciate that the best evidence is that which is given shortly after the events, the answer, really, is not to delay trials to get rid of the backlog. I heard on Saturday at my chambers dinner that the problem of delay is not the Nightingale courts but the number of judges and counsel needed to cover the trials taking place there and in the ordinary Crown Courts.

Originally, this amendment was grouped with Amendments 286 to 291. Are the others to be spoken to later?

[Lord Falconer of Thoroton (Lab)]

In this group, according to my listing, Amendment 268 is grouped with Amendments 286, 287, 288, 289, 290 and 291.

[Lord Thomas of Gresford (LD)]

That introduces the question about the complainant’s sexual history; I do not think the noble and learned Lord addressed that when he opened the case. The basic position in relation to that issue is stated in Section 41(1) of the 1999 Act, which says that

“no evidence may be adduced, and … no question may be asked in cross-examination,”

where

“a person is charged with a sexual offence … except with the leave of the court”.

Amendments 286 to 291 are concerned with tightening up the circumstances in which leave may be given. The noble and learned Lord, Lord Falconer, would not allow by these amendments such evidence whenever the issue of consent arises, whether at the same time or same event as the subject matter of the charge or where there is such similarity in the sexual behaviour of the complainant to the charge that the similarity cannot reasonably be explained as a coincidence.

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[Baroness Jones of Moulsecoomb (GP)]

My Lords, I support these improved safeguards because although I have not been in court very often, and when I have been there, it has been mostly as the complainant or a witness, I do think that we need better support for victims—or the plaintiff—who at the moment are treated very much as bit players in the whole theatre. It seems that they are almost forgettable because the two protagonists are the defence and the prosecution, and they take centre stage. It was obvious when we debated the Domestic Abuse Bill, when we discussed anonymity and other techniques for helping witnesses give evidence in court, so clearly that is needed.

The witness is often treated as a sort of emotionless void, with the legal test focusing on whether the proposed measures will improve their ability to give evidence, rather than, say, protect them from the trauma, embarrassment and hurt of facing up against the accused. This is no more apparent than in the way we treat victims of sexual violence and rape. The Section 41 rules were a major step forward but still fall far short of what is necessary, and so the amendments in this group would help recognise victims as humans and not just incidental characters in the whole story. Most importantly, they would allow the complainant to have their own independent legal representation in Section 41 applications, rather than relying on prosecution counsel, who, in their role as administrators of justice, have many competing obligations to juggle.

I hope that the Minister will agree that there are still many unsolved challenges in the treatment of complainants, and they are in desperate need of solutions.

[Lord Falconer of Thoroton (Lab)]

My Lords, I should have opened those other amendments, and it is an error on my part that I did not. I am very grateful to the noble Lord, Lord Thomas of Gresford, because he has done a bit of the work that I should have done.

[Lord Judge (CB)]

If the noble and learned Lord decides to open them, which I would welcome, I would like to respond generally. So far, this debate has rushed along, and we were rather waiting for the noble and learned Lord, Lord Falconer, to tell us why he strongly supported all these amendments, and then we will answer them.

[Lord Falconer of Thoroton (Lab)]

The reason I did not tell noble Lords why I strongly supported all these amendments was because I made a mistake and did not realise that they were in the same group until the noble Lord, Lord Thomas, mentioned it. I apologise to the Committee for that error.

May I just go through them? I have done Amendment 268, which concerns Section 28 of the Youth Justice and Criminal Evidence Act. The next is Amendment 286, which proposes to insert a new clause into the Youth Justice and Criminal Evidence Act 1999 and would exclude the admission in evidence, whether by the prosecution or the defence, of any sexual behaviour of the complainant with a third party, for the purpose of showing consent or lack of consent, while leaving evidence of sexual behaviour with a third party admissible if it is relevant to any other issue in the case.

In addition, it sets out a further requirement that, where such evidence is sought to be introduced in relation to an issue other than consent, that material must be more probative than prejudicial, and it sets out the considerations the judge must have regard to in considering that extra requirement. The purpose of this amendment is to give the clearest possible signal that evidence of any sexual behaviour of the complainant with a third party—that is, not the defendant—should be regarded as completely inadmissible on the issue of consent. This is important because it is intended to mark a change from the past, where all too often such evidence is admissible in circumstances where it is of very limited probative value, and the ability of that evidence to be admitted makes people—complainants—incredibly wary of coming forward and making complaints. This is the legislature giving a clear signal that it wants a change in relation to that. That is why it is there.

[Lord Pannick (CB)]

I am sorry to interrupt the noble and learned Lord, but would his amendment mean that if the complainant says, “I would never, ever consent to sexual behaviour” of a particular description, it would not be open to the defence to adduce evidence that that was precisely what the complainant had done with a third party?

[Lord Falconer of Thoroton (Lab)]

It would exclude such evidence; there is no doubt about that, and rightly so, because what the noble Lord is referring to is evidence where the defence says, “Well, you say this in relation to this case, but what about this?” and then refers to another instance of sexual connection and says, “Look what you did there.” The purpose of the provision is to do exactly what the noble Lord, Lord Pannick, says.

[Lord Pannick (CB)]

I would like to test this proposition, because it strikes me as rather surprising. If a complainant says to the court, “Not in relation to this particular person, but I would never ever contemplate” doing something, and there is evidence, otherwise admissible, that she has done so in the past, that seems to be highly relevant to the jury’s assessment.

[Lord Falconer of Thoroton (Lab)]

What I am saying in putting forward this provision is that you want to send a clear signal that a certain sort of evidence is not admissible. In order to make it easier for people to come forward, you need to have much clearer lines than we have had previously. There has been a whole variety of evidence that English law has said is not admissible, even though many people would think it was probative, because it is the safest way overall to deal with trials—it is the safest way to ensure that an appropriate balance is struck between complainant and defendant.

[Lord Brown of Eaton-under-Heywood (CB)]

Surely the noble Lord and the noble and learned Lord must be at cross purposes. The noble Lord, Lord Pannick, put it on the basis that the witness is saying, “I wouldn’t do this, not only with this man but I wouldn’t do it with anybody, ever”, and the evidence is that she has. Is that perjury simply to go unresponded to in any shape or form?

[Lord Falconer of Thoroton (Lab)]

I am afraid I did understand what the noble Lord, Lord Pannick, said. It is exactly as the noble and learned Lord, Lord Brown, has put it. The noble Lord, Lord Pannick, is right in the way that he analysed this amendment: it would exclude that evidence. I understand that that is the consequence, and I am saying it is a good thing.

[Baroness Jones of Moulsecoomb (GP)]

From a woman’s point of view, I would just like to say that there are things I would have done at 20 that I absolutely would not do now, at 70. We can all learn and adapt our behaviour, so the past may not be relevant.

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[Baroness Bennett of Manor Castle]

I point out to all noble Lords who have spoken that victims can be of all genders. It is unfortunate that this debate has been specifically gendered.

[Lord Falconer of Thoroton (Lab)]

The noble Baroness, Lady Bennett, is right. This is about sexual assault on anybody, whatever gender they are.

Does the right reverend Prelate want to intervene? Oh, I am sorry; they are leaving, for fear that it will never end.

Amendment 287 defines consent so that there is clarity about what is meant by consent in the new section of the Youth, Justice and Criminal Evidence Act 1999.

Amendment 288 is a procedural requirement. This proposed new clause would have the effect that no Section 41 evidence or questions—that is, about sexual conduct with a third party—could be admitted by a judge at trial unless there had been an application before trial in accordance with practice directions, and would ban applications being made immediately before or during the trial. It is an important procedural safeguard to ensure that the complainant will know before the trial starts what he, she or they may face.

Amendment 289 would insert a new clause to give the complainant a right of representation with legal aid, if they are financially eligible, to oppose any application to admit Section 41 material about them—that is, material about sexual conduct with a third party. This new clause would also give complainants a right of appeal to the Court of Appeal if the application is allowed in whole or in part. The new clause provides that the complainant is not compellable as a witness at the application. The purpose of these provisions is to recognise that the complainant should be treated as a party, rather than as an outsider, to the proceedings on issues of the extent to which his, her or their past is to be gone through in the trial, and it is perfectly legitimate.

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[Lord Pannick (CB)]

My Lords, I intervened earlier on Amendment 286 because of my concern about an absolute rule in this area. My concern is increased by the practical experience of the noble and learned Lord, Lord Judge, in this matter. I am also concerned about Amendment 289 regarding the complainant’s right of representation in relation to an application and whether there should be evidence concerning sexual conduct, not merely for the reason the noble and learned Lord gave, with which I agree: that the prosecution are ministers of justice and are there to deal with such matters. I am also concerned that this is a recipe for delay. If it is really to be said that the victim is to be separately represented and able to make an application, presumably after notice has been given, and there is to be a right of appeal to the Court of Appeal, that is inevitably going to delay further trials that are already far too long delayed.

[Lord Falconer of Thoroton (Lab)]

On the points made by the noble and learned Lord, Lord Judge, about the criminal procedure rules, I agree with him. There is no need for the Secretary of State to intervene, and I accept that completely. Secondly, I also completely accept his point that the Secretary of State should not be making that determination; that is my drafting error.

I utterly repudiate the point made by the noble Lord, Lord Pannick, about delay and non-representation, a position which the noble and learned Lord, Lord Judge, also adopted to some extent. It is really important that the complainant have, and feel that they have, a voice in the process of what is going to happen to them at the trial. The point about delay could be dealt with by ensuring that these applications are all dealt with before the trial. If there is to be an appeal and the complainant says, “It is unfair that my past is being raked over in this way, I want to appeal”, then there may be occasional cases where there are delays, but their rights should be recognised. The fact that they have a voice is really important.

The noble and learned Lord, Lord Judge, said that the prosecution is there to look after them. My experience is that the prosecution will try as much as possible to look after them but that they should have a separate voice. They will frequently feel—not because the prosecution is in any sense not doing his or her duty, but because they feel their voice is not adequately represented—that they should have a separate voice because they have separate concerns from those of the prosecution, which has to look at the situation not just from the point of view of the complainant but in a wider context. So I accept two out of the three points made by the noble and learned Lord, Lord Judge, but none of those made by the noble Lord, Lord Pannick.

On the first point made by the noble and learned Lord, Lord Judge, regarding cases where it is vital to know what the position is—he gave the example of a trial he had heard—I am keen to draw a line so that people know where they stand, just as, in relation to the rules of evidence over many centuries, English law has said that some evidence is admissible and some is not, even though from time to time, it has been obvious that the inadmissible evidence might have been very compelling, but for reasons of bigger policy it was inadmissible.

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[Lord Falconer of Thoroton (Lab)]

I am grateful to everybody for taking part in the debate and very grateful for the care with which the Minister answered the issues. I am disappointed with his response on Section 28 and making sure that it is available in all courts in England and Wales. He said that he wanted to test the technology first, but there have been three pilots going for some time. I found that answer not altogether convincing so may come back to that matter on Report.

--- Later in debate ---

Moved by

[Lord Falconer of Thoroton]

269: After Clause 170, insert the following new Clause—
“Assistance for bereaved persons and core participants at inquests and public inquiries
(1) With respect to inquests, and public inquiries relating to deaths or serious injuries, and where one or more public authority, or private entity whose relevant activity falls within subsection (2), are designated as “interested persons” (IPs) or “core participants” (CPs), bereaved IPs and CPs shall be entitled to publicly-funded legal assistance and representation at the same level or in proportion to the resources provided to the public authority or private entity, as set out in Schedule (Assistance for bereaved persons and core participants at inquests and public inquiries: amendment of the Legal Aid, Sentencing and Punishment of Offenders Act 2012).(2) Relevant activity of a private entity falls within this subsection where it—(a) is delegated or contracted from a public authority, or(b) is one where the private entity or individual owes a health and safety responsibility to the public or a section of it, including but not limited to sporting, leisure and entertainment events and premises, public transport systems and the provision of utilities and retail facilities.”Member’s explanatory statement
Combined with the proposed new schedule to follow Schedule 20, this amendment would ensure that bereaved persons and core participants at inquests and public inquiries received legal aid proportionate to the legal expenditure by any public authorities involved in the inquest or inquiry (so-called “equality of arms”).

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[Lord Falconer of Thoroton (Lab)]

My Lords, this is a completely different topic. Amendment 269 would

“ensure that bereaved persons and core participants at inquests and public inquiries received legal aid proportionate to the legal expenditure by any public authorities involved in the inquest or inquiry”.

It is, in effect, the equality of arms measure.

In the Hillsborough situation, people suffered an incredibly grievous wrong in respect of their loved ones, then found themselves ranged against lawyers and QCs. As a QC myself, I make it clear that there is nothing intrinsically wrong with QCs, but imagine finding yourself ranged against seven public authorities, all of which have an interest in trying to ensure that their public authority is exonerated, while the individual victims have no right to legal representation at all. They may get the benefit of discretionary funding from the Lord Chancellor, who can give that funding for inquests, but it is entirely at the discretion of a Government Minister. That is inappropriate. In relation to these sorts of cases, the right course is that where there is a big disaster, the people who are most affected should be able to appear at the inquest, which is going to affect what may happen in the future, while having equality of arms with the person or bodies against whom they will be ranged.

Amendments 270 to 274 intend to establish

“a public advocate to provide advice to representatives of the deceased after major incidents.”

So many families affected by a major incident have nowhere to go because there is no lawyer experienced in these sorts of matters. They have nobody to speak on their behalf and find, all too often, the public sector unwilling to give them help—for fear that individual members of the public sector may be making their own section of it liable to some sort of damages in court subsequently. The public advocate scheme is a means of providing support for the victims in those tragedies. I very much hope that the Government will listen, look at these amendments favourably and recognise the injustices that have occurred over the years as a result of there not being proper representation at inquests nor a public advocate to speak for the victims of these disasters. I beg to move.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I rise to offer Green support for Amendment 269 in the name of the noble and learned Lord, Lord Falconer, to which I have attached my name. I offer support for all the amendments here. The noble and learned Lord spoke about a big group case affecting many people. I shall to a single case.

In 2014, a seven-year-old boy, Zane Gbangbola, went to sleep in his bed. He never woke up, and his father, sleeping nearby, has been forced to use a wheelchair ever since. The Fire Brigades Union, the PCS Union and many other people—including his father Kye’s doctors—were convinced that Zane was poisoned by hydrogen cyanide gas that came from a landfill site nearby, carried by floodwaters. Before this tragic event, the Environment Agency had actually protected its own staff in a nearby building with a special membrane in the foundations to ensure there was no risk of an event like this.

There was, of course, an inquest. At that inquest no fewer than six public bodies, whose actions might have been called into question, were represented by the best legal counsel money can buy—with public money. The Gbangbola family was denied legal aid, so the grieving parents, sitting in a court room and hearing the most awful possible details about their son’s death, were forced to operate with only limited legal support, with funds raised by a public appeal. As the noble and learned Lord said, the European Convention on Human Rights calls for an equality of arms in trials. There was no such equality at Zane’s inquest.

We also need to stress the public interest concern here. As was the case, tragically, in Zane’s death, we know that the world is facing new dangers. The country is facing new dangers. We need honesty and transparency about what those are. The weather that led to that flooding was linked to the climate emergency. Several years after this, Kye Gbangbola said

“we need to unlock the doors for the truth to come out”.

This is about the death of one child, but it is also about the safety of everybody. The lack of legal aid at that inquest was a factor in the truth not coming out. The family is continuing to campaign. Indeed, I was in Glasgow with them at a side event to the COP 26 climate talks. They are calling for a Zane’s Law to address weaknesses in our law that were deliberately introduced a decade ago, putting profits before human lives. This is why the seven amendments about a public advocate are terribly important. We cannot rely on families—indeed, sometimes there will not be a family—in a case where someone has died, to ensure that the courts are helping us to uncover what actually happened in the case of tragedies.

Had there been equality of arms at Zane’s inquest, we might be much further down the road to getting a change in the law that we all need to keep us safe. I strongly urge the Government to act on all of these amendments, but particularly Amendment 269 and the related amendment, not just for Zane or the Hillsborough families but for everybody.

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[Lord Stewart of Dirleton (Con)]

Before the noble and learned Lord, Lord Falconer of Thoroton, replies, I should say that I did not make reference specifically to the point raised by my noble friend Lord Mackay of Clashfern, in relation to the proposal that he and the noble Lord, Lord Rosser, advanced for the funding of representation in these areas. I will undertake to have the department of my noble friend Lord Wolfson of Tredegar look into the response that was made to the proposal which my noble and learned friend and the noble Lord put forward at that time and see if an answer can be given to the Committee at some appropriate stage as to how that was considered and what conclusions were reached.

[Lord Falconer of Thoroton (Lab)]

I am very grateful to everybody who has spoken in the debate. Everybody apart from the Minister supported the principle. There were various specific suggestions as to how the proposal could be improved, which I certainly take on board. As ever, the noble and learned Lord, Lord Mackay of Clashfern, put forward an incredibly sensible proposal. Amendment 269 says that if a public authority is designated an “interested person” or a “core participant”, then legal aid should provide funding proportionate to that to the families. I think the noble and learned Lord, Lord Mackay, is saying, “Let the relevant interested party or core participant from the public sector pay for it”, and I would not have any objection to that.

I have to say that the Minister’s response was awful—and this is not in any way intended to be an attack on the noble and learned Lord, Lord Stewart of Dirleton, who delivered, as ever, a very careful answer. It was awful because it indicated that the Government are going backwards. It represented a degree of complacency about the problem that was entirely unwarranted. The noble Baroness, Lady Newlove, very effectively expressed what the problem was. The noble Lord, Lord Beith, indicated, quite rightly, that this problem has existed for a very long time.

The problem was exemplified by the Hillsborough case. The families, having had a very fair hearing from Lord Justice Taylor in the public inquiry, then attended an inquest, day after day, having to cross the Pennines to get there, where they saw the findings of Lord Justice Taylor, as he then was, eroded by representatives of public authorities able to take advantage of their total inequality of arms, aided and abetted by some elements in the press—not all the press, but some elements—which used the process to denigrate those who had died. It was absolutely appalling.

The issue is not just the suffering of the individuals but the disrepute into which it brings our legal system. If our legal system is unable to come to an appropriate answer because of the inequality of arms—all the public authorities are represented by all the lawyers in the world and the families, who have a cause and are right, cannot get their position across—then what good is our legal system? That is the point that everybody in the debate has been talking about, and the Minister’s answer showed absolutely no appreciation whatever that that is the problem.

We will not have another opportunity to come back with something. Amendment 269 and the schedule to be put in after Schedule 20 deals with it by ensuring that where there is a public authority in the firing line, the families should be represented. I note what the noble Lord, Lord Sandhurst, says, but all too often long-running problems with particular health bodies never get properly recognised because ultimately the health body is properly represented and the families are not. We will be back. In the meantime, I beg leave to withdraw the amendment.

Amendment 269 withdrawn.

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My amendment would be a desirable and welcome step forward in improving the quality of the service for all concerned. It would be a logical development and progression from the existing MoJ system to a more tried and tested format.

[Lord Falconer of Thoroton (Lab)]

Before the noble Baroness sits down, may I ask a question? Her amendment refers to every court or tribunal. Knowing how the courts are operating, for example, in family law, the urgent need for an interpreter happens every single day when urgent decisions have to be made about children. How long would it take to find an interpreter in such a case if her provisions, which I see as having great strength in criminal trials, were in force?

[Baroness Coussins (CB)]

I can answer that only by saying I would have to consult the national register and chartered institute to find out how quickly they respond now and how that compares to the MoJ system. I agree it is an important element. Part of the problem will be the supply chain, but I think these issues can be overcome. I beg to move.

Police, Crime, Sentencing and Courts Bill

Lord Falconer of Thoroton Excerpts

Lords Hansard - part two & Committee stage
Monday 22nd November 2021 Lords Chamber

Moved by

[Lord Falconer of Thoroton]

284: After Clause 170, insert the following new Clause—
“Harassment in a public place
(1) A person must not engage in any conduct in a public place— (a) which amounts to harassment of another, and(b) which he or she knows or ought to know amounts to 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 harassment of another if a reasonable person would think the conduct amounted to harassment of the other.(3) For the purposes of this section—“conduct” includes speech;“harassment” of a person includes causing the person alarm or distress.(4) Subsection (1) does not apply to conduct if the person can show—(a) that it was for the purpose of preventing or detecting crime,(b) that it was under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or(c) that in the particular circumstances it was reasonable.(5) A person who engages in any conduct in breach of subsection (1) is guilty of 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 level 5 on the standard scale, or both.”Member’s explanatory statement
This would create a specific offence of street harassment.

[Lord Falconer of Thoroton (Lab)]

These important amendments deal with the attempts to make this Bill a reset as far as violence against women and girls is concerned. They create a number of new offences and indicate that there should be reviews in certain areas in relation to harassment and other related things. I will go through each one in turn.

Amendment 284, in my name, would create a specific offence of street harassment. It is not limited to sexual harassment because the experience of men and women on the street is not restricted to sexual harassment. In July 2021, the Home Secretary indicated that she was thinking of introducing a crime of sexual harassment. There are a whole range of studies about the effect, particularly on women, of harassment in the street. A United Nations study, not restricted to the United Kingdom, said that 70% of women had been affected by street harassment, 4% said that it was worth complaining about it and 45% said that it was not. The sort of harassment that one has in mind in relation to this offence is wolf-whistling, people being called out to, people being the victim of people treating them with a total lack of respect in a way that might cause alarm or distress. As I say, it is not restricted to women; other groups are affected as well. Members of the LGBTQ community speak of harassment that they suffer in particular places. It would be wrong to restrict the terms of this offence to a particular type of harassment or a particular group of people, but this proposed new clause makes it an offence to subject somebody to what a reasonable person would regard as harassment, and harassment includes causing that person alarm or distress.

I very much hope that the Government will take up the opportunity that the Home Secretary herself indicated was worth taking up. That would indicate that the sorts of behaviour that in many cases occur throughout the length and breadth of the country would no longer be acceptable, and if people behave better and do not commit acts of harassment, that will have an affect right up the scale. In terms of the drafting, the proposed new clause sets it out very clearly, but we are open to any suggestions about how it may be drafted better.

Amendment 285 makes it an offence to kerb-crawl. We define it as

“an offence for a person, from a motor vehicle while it is in a street or public place … to engage in conduct which amounts to harassment in such manner or in such circumstances as to be likely to cause annoyance, alarm, distress or nuisance to any other person.”

That seeks to deal with people in their cars winding down their windows and shouting, barracking and making life difficult, often with a sexual undertone or more than an undertone. Again, that should be a crime, and something that we very much hope that the Government will treat as a serious matter. We hope that they will take up the suggestion that has been made. Again, if there are better ways of drafting it, we are more than open to hearing them, but Amendment 285 provides the basis for such a crime.

Amendments 292A and 292B are about sex for rent, which should be a crime. This is where an individual offers accommodation at a reduced cost or free in exchange for sex. This arrangement can be either at the beginning of a tenancy or enforced during a tenancy, often when tenants are experiencing difficulties in finding somewhere to live or in paying the rent. Sex for rent arrangements force people, especially women, into the most vulnerable of situations, often in enclosed private spaces to which a perpetrator has constant and unrestricted access. This has been a matter of campaign for a considerable period, particularly from groups such as Generation Rent. Politicians from all parties have picked it up and investigative journalists have too.

This Bill provides an opportunity to do something about it. A 2016 Shelter survey found that 8% of women had been offered a sex-for-rent arrangement at some point in their lives. In 2018, YouGov and Shelter estimated that 250,000 women had been asked for sexual favours by their landlords in exchange for free or discounted accommodation at some point between 2013 and 2018. More recent research by Shelter, which regards this as a serious issue, suggested that 30,000 women in the United Kingdom were propositioned with such arrangements between the start of the pandemic in March 2020 and January 2021. It is not difficult to imagine that the question of how one affords accommodation became more and more difficult for certain people during the pandemic.

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[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I am grateful to the noble and learned Lord, Lord Falconer, for setting out these amendments, which call for new offences to tackle street harassment and so-called sex for rent, propose a review of the offences of exposure and administering a substance with intent, and seek to address cases which involve the so-called rough sex defence.

On Amendments 284 and 285, tabled by the noble and learned Lord, no one can doubt the gravity of the issue these amendments seek to address. Like the Committee, the House and the whole country, I was very shocked by the tragic events of September; first, Sabina Nessa and then the revelations about how the murderer of Sarah Everard had abused his position as a police officer to commit his awful crimes. While these are the most serious violent crimes which can happen to women, they form just one part of what Her Majesty’s Inspectorate of Constabulary referred to in its recent report as an epidemic of violence against women and girls.

What is so striking is how these crimes have galvanised so many women and girls across the country to talk about their experiences and their suffering. To many of us—although not, of course, to those who experience it—the sheer scale of the problem has been shocking. Many of the more than 180,000 responses which we received to the call for evidence on the Tackling Violence Against Women and Girls strategy addressed this issue, as did the report published by Plan International UK in September. Figures released by the Office for National Statistics in August about perceptions of personal safety and experiences of harassment were equally shocking. For example, two out of three women aged between 16 and 34 had experienced one form of harassment in the previous 12 months. Thankfully, those experiences are not of the same level of gravity as what happened to the women who I have just spoken about, but they are still deeply traumatic to their victims.

I assure noble Lords that tackling violence against women and girls is a huge priority for this Government. We published our new Tackling Violence Against Women and Girls strategy in July. As the Home Secretary wrote in her foreword, violence against women and girls is not inevitable, and

“This Strategy will help bring about real and lasting change.”


On the issue of sexual harassment in public places, it sets out a number of commitments. A national communications campaign will challenge this kind of behaviour and ensure victims know how and where to report it. To ensure police are confident about how to respond to public sexual harassment, the College of Policing will provide new guidance for officers; this work is already well advanced. To prevent the behaviour happening in the first place, we will work to deepen our understanding of who commits these crimes, why they do it and how this behaviour may escalate, including through our new funding on what works to tackle violence against women and girls.

The strategy confirmed that we will pilot a tool, StreetSafe, which will enable the public to anonymously report areas where they feel unsafe and identify what it was about the location that made them feel that way, so that police can use that information to improve community safety. The pilot launched in August. The strategy also confirmed that the Government are investing a further £25 million in the safer streets fund to enable local areas to put in place innovative crime prevention measures to ensure that women and girls feel safe in public spaces. The successful bids were announced in October. The strategy also confirmed that the Home Office would launch a £5 million safety of women at night fund focused on the prevention of violence against women and girls in public spaces at night. The successful bids were announced on 10 November, and our commitment to this issue cannot be in doubt.

However, there is rightly considerable interest in the legal position, including whether there should be a new law specifically targeted at this type of behaviour. I pay tribute to parliamentarians in both Houses for their campaigning on this issue and to the organisations Plan International UK and Our Streets Now—the latter, as the noble Baroness, Lady Kennedy of Cradley, said, set up by two sisters out of a determination that other women and girls should not suffer sexual harassment as they had.

As noble Lords will know from the tackling VAWG strategy, while there is not a specific offence of street harassment, there are a number of offences in place that capture that behaviour—I think it was the noble Lord, Lord Marks, who talked about behaviours—depending on the specific circumstances, including offences under the Protection from Harassment Act 1997, the Public Order Act 1986 and the Sexual Offences Act 2003. However, we are looking carefully at where there might be gaps in existing law and how a specific offence of public sexual harassment could address those. That work continues and is being informed by the results of the call for evidence and by our direct engagement with campaigners on this issue. We have not yet reached a position on it and I cannot commit to have done so ahead of Report; as the strategy notes, this is a complex area and it is important that we take time to ensure that any potential legislation is necessary, proportionate and reasonably defined.

On Amendments 292A and 292B, we can all agree that so-called sex for rent is an exploitative and abhorrent phenomenon that has no place in our society. That said, there are existing offences under the Sexual Offences Act 2003 that might be used to prosecute the practice, including the Section 52 offence of causing or inciting prostitution for gain and the Section 53 offence of controlling prostitution for gain. Both offences carry a maximum penalty of seven years’ imprisonment and can capture instances of “sex for rent”, dependent on the circumstances of the individual case. The Section 52 offence would apply when the identified victim had been caused or incited to engage in prostitution. In addition, the online safety Bill will also place duties on sites that host user-generated content, such as social media companies, to protect their users from illegal content. This would include posts that are committing the offence of inciting—

[Lord Falconer of Thoroton (Lab)]

I apologise for interrupting, but is it right that those existing sexual offences all require the victims in “sex for rent” cases to be characterised as engaging in prostitution?

[Baroness Williams of Trafford (Con)]

I was going to get on to that, because I had noted the noble and learned Lord’s point. There are two answers. The first is that anyone who makes the report to the police will benefit from the anonymity provisions in the Sexual Offences (Amendment) Act 1992. The second is that the Section 52 offence applies when an identified victim has been caused to engage in prostitution or incited to do so, whether or not the prostitution takes place. In other words, a victim does not have to identify as a prostitute for the Sections 52 and 53 offences to be used. I hope that partly answers his question, although he does not look entirely convinced.

[Lord Falconer of Thoroton (Lab)]

How can the Minister tell when I am wearing my mask?

[Baroness Williams of Trafford (Con)]

I can see the noble and learned Lord’s eyebrows.

In 2019, the Crown Prosecution Service amended its guidance Prostitution and Exploitation of Prostitution to include specific reference to the potential availability of charges under the Sections 52 and 53 offences where there is evidence to support the existence of “sex for rent” arrangements, and—as the noble and learned Lord, Lord Falconer, and the noble Baroness, Lady Kennedy of Cradley, pointed out—in January this year the CPS authorised the first charge for “sex for rent” allegations under Section 52.

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In conclusion, we agree with the sentiments behind these amendments. We need to ensure that the criminal justice system, and indeed wider society, responds effectively to these offences, but it is important that we create new offences only where there is a clear need to do so. As I said, we continue to explore whether further legislation is needed to tackle street harassment, and we continue to keep the law as it applies to so-called “sex for rent”, exposure, spiking and the so-called “rough sex defence” under review. On this basis, I hope that the noble and learned Lord, Lord Falconer, would be happy to withdraw his amendment.

[Lord Falconer of Thoroton (Lab)]

I am very much obliged to everybody who has taken part in this incredibly important debate. It is terribly unfortunate that this debate is happening at this particular time—I am very glad to see the Minister nodding. This is incredibly unfortunate when we are talking about violence against women and girls, which is the big issue in relation to this Bill. This is no attack on the Whips, but they asked prior to the dinner break that we get on as quickly as possible. It is an incredibly unfortunate way for this House to look at legislation such as this.

I thank the noble and learned Lord, Lord Hope, for his support for Amendment 284, which concerns street harassment. I take note of what he said in relation to Amendment 285 and the difference between the penalties. He was suggesting that there might be a way to amalgamate the two. That suggestion seems to be very well made, and I hope that when we come back with this on Report, we might try to follow it up. I was grateful to the noble Baroness, Lady Bennett, for her support in relation to all of the amendments.

I take note of what the noble Baroness, Lady Fox, said in respect of the review on spiking. One is in a bit of a dilemma: there is already some degree of anxiety in relation to spiking. I think that what she was saying was, “Do not have an immediate review because that increases the anxiety,” but if you do nothing about it, the anxiety continues. My own judgment would be that one should have the review.

Separately, the noble Baroness, Lady Fox, asked whether one should be worried if one is criminalising through harassment conduct including speech. I do not think that that criminalises free speech, because the sorts of speech that we would intend to criminalise under the harassment crime would be cajoling, offensive behaviour—not expressing an opinion but insulting people or demanding sex or other things of people in a wholly inappropriate way. I do not think that would give rise to the risk of an attack on free speech.

[Baroness Fox of Buckley (Non-Afl)]

I suppose it is following on from what the noble Lord, Lord Marks, pointed out, about the broadness of that amendment. Since 2016, I have been subjected to a “fair amount of verbal”, as they say, walking around the Westminster village, from people who did not approve of my Brexit views. It was not pleasant: it was not sexual, but it was particularly obnoxious and offensive; but I do not know whether that should be against the law. I might have a moral view of it, but I would not want them all to be arrested. I am saying that, while verbal harassment is unpleasant, there is a question as to whether it should be made criminal. I just do not want everyone being locked up for things they say, even if what they say causes distress.

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[Lord Falconer of Thoroton (Lab)]

I completely take the noble Baroness’s point. The law has been very, very aware of that. There is a difference between people saying to you on the street, “I very much disagree with your views on Brexit” and others saying, “Why are you such a stupid, awful” and then a series of expletives, and chasing you down the street, just abusing you. The law is capable of making distinction.

[Baroness Fox of Buckley (Non-Afl)]

It was the latter rather than the former, I have to say.

[Lord Falconer of Thoroton (Lab)]

Then there might be a point where that becomes harassment.

I found the speech of the noble Lord, Lord Marks of Henley-on-Thames, to be terrible. He sounded like a Government Minister in relation to this, thinking of excuses why not to do something about harassment, not just against women—against other people as well—but particularly against women. I was very struck by the fact that the Minister at least acknowledged that there is a real problem in relation to this. Her speech accepted that something had to be done about it, which that of the noble Lord, Lord Marks, did not.

There was a difference between the view of the noble and learned Lord, Lord Hope of Craighead, which was broadly to accept the proposals that I am making in Amendment 284, and that of the noble Lord, Lord Marks, who raised two particular points in relation to street harassment. One was about the breadth of the offence, which is not limited to sexual matters. I do not think it should be limited to sexual matters. If somebody who is disabled is chased down the street by a group of people taunting them for being disabled, that should be harassment. The second point the noble Lord was worrying about was “ought to know”. The sort of conduct that we are seeking to criminalise here is where people behave in a way that is wholly unacceptable. If you say, “I did not know that it was criminal to wolf-whistle and chase somebody down the street,” the fact that you did not know that should not be any defence. Those were the only two points he made in relation to it.

[Lord Marks of Henley-on-Thames (LD)]

I am grateful to the noble and learned Lord for giving way and I am sorry that he found my speech terrible. I think he missed the point. I am not suggesting that there should be no criminalisation of the sexual offences. It may well be that the behaviour about disability that he mentions is already criminal. The point I am making is that you have to be very careful to delineate offences so that they are criminalising only conduct that ought to be criminal.

The noble Baroness, Lady Fox of Buckley, with whom I do not always agree, made the distinction very well. In my understanding of the Minister’s speech, she and I were on exactly the same page. We both believe that violence against women and girls has to be treated extremely seriously. We both believe—and if I sound like a Government Minister, the noble and learned Lord knows that I am not and never have been one—that the Government have a responsibility to ensure that the ambit of the criminal law is kept within the ambit of the law that people can trust and have confidence in. They cannot do that if you randomly criminalise behaviour that ought to be without the criminal law.

[Lord Falconer of Thoroton (Lab)]

I do not know where to start in relation to that intervention. I agree with the noble Lord that we need a clear delineation. We need to come forward with something. We have come forward with something that, interestingly enough, the former Lord President of the Court of Session in Scotland found completely acceptable but the noble Lord, Lord Marks, does not, for the two reasons that he has given that seem to me to be ill founded. We need to make progress in relation to it. We are not going to have an opportunity to do it. What I take the noble Lord, Lord Marks, as saying is that he will co-operate with us in trying to delineate an offence for the purposes of this Bill because something needs to be done now.

[Lord Marks of Henley-on-Thames (LD)]

The noble and learned Lord invites a response. I can certainly say that we will co-operate with that and I completely agree with him that the degree to which we are forced to rush this legislation inhibits progress on the kinds of proposals he is making. The difficulty is that one has to look at these offences in detail.

The noble and learned Lord suggested—rather unfairly, I think—that the two points I made against the street harassment offence he was particularly concerned with were the only two points I had. I made it absolutely clear in my speech that these were just examples. I agree with the Minister that you have to look very carefully at the whole area of new offences. That is why the reviews are important in relation to the spiking and exposure offences. You simply cannot legislate in a hurry to create new offences, as his amendment seeks to do.

[Lord Falconer of Thoroton (Lab)]

I have no idea whether that was a yes or a no to my question. I assume the two points the noble Lord made were his two best points and the other two were no better than that, so I do not know where the Liberal Democrats stand in relation to that now.

In relation to the sex-for-rent offence, various points were made about whether the case of the landlady who seduces the male tenant and then does not charge rent should be an offence. I am more than happy to work out whether there should be certain defences available. As the noble Baroness, Lady Kennedy of Cradley, made clear, it is something that urgently needs criminalisation—and criminalisation that does not require the victim to be either characterised as engaged in prostitution or incited to commit prostitution. The implication of the law, even if it gives the victim anonymity, is that by succumbing to the sex-for-rent proposal the person is forced to become engaged in prostitution. That is not the way the law should be. There should just be a straightforward criminalisation of it.

Of course, I am sure that the offence can be made better in terms of its drafting but it is a drafting issue, not an issue of substance between us. If we do not do it in this Bill, when will we do it? The point that the noble Baroness, Lady Kennedy of Cradley, makes is almost unanswerable: there has been one prosecution. I could not work out whether there is maybe another one coming, from what she said. That would make it two, over years, and it is wholly unacceptable that that is the position.

Police, Crime, Sentencing and Courts Bill

Lord Falconer of Thoroton Excerpts

Committee stage
Wednesday 24th November 2021 Lords Chamber

Relevant documents: 1st, 4th and 6th Reports from the Joint Committee on Human Rights, 6th and 13th Report from the Delegated Powers Committee, 7th Report from the Constitution Committee

[Lord Falconer of Thoroton (Lab)]

My Lords, before my noble friend Lady Blake comes to move her Amendment 292H, everybody will have seen what the plans are for today by looking at the groupings. They basically involve five groups dealing with things that have stood over from the pre-protest section of the Bill, and then three or four groups dealing with all the protest sections in the Bill, including one group, I think, dealing with all the proposed new clauses that have been added.

On any basis, the grouping is inappropriate. The proposed new clauses have the additional feature that they have not been debated at all in the Commons, from where this Bill originated. They have had no Second Reading of any sort in this House and now, to have Committee stage with them all crammed in effect into one or two groups means that there will be no proper scrutiny in this House.

Can I make a suggestion and ask a question? In relation to the new clauses, could we treat, without any additional formality, the proceedings today as a Second Reading in effect and then have an additional day in Committee so that there is proper consideration? In addition to that, could one have more time to deal with these very important clauses?

My concern is that this marginalises the House of Lords in relation to considering these provisions in detail—although I am sure that was not deliberate on the part of the Whips. It may well be that these provisions are needed; our role is to look at them line by line. The effect of the way in which this has been done is that now that is not possible. The House as a whole was entitled to look for protection in that respect from the Leader of the House and the Government Chief Whip. Instead, they have just gone along with the Government, like so many institutions, in pushing the institution to one side—and it is not right.

[Lord Paddick (LD)]

I support the noble and learned Lord, Lord Falconer of Thoroton, in what he has just said. I have heard two rumours—one, that the Government Chief Whip is urging people to keep their comments on the Bill today short. I wish to declare to the Government Chief Whip that that is not possible, bearing in mind the number and complexity of issues that we are supposed to debate today. The other rumour that I have heard is that, if the House is still debating at 2 am, only then will the debate be adjourned. If that is right, looking at the timetable, that means that the most contentious parts of the Bill—the new amendments, as the noble and learned Lord said, which have not even been considered by the House of Commons—will be debated either side of midnight. That is no way for this House to be treated.

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[Lord Falconer of Thoroton (Lab)]

To pick up on that last remark, the Government are going to withdraw the new amendments—so how will they regard Report? Will it be treated like a Committee stage?

[Baroness Williams of Trafford (Con)]

Report will not be treated like a Committee stage, but I have no intention of moving amendments that this Committee intends to vote against, so I shall withdraw them.

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[Baroness Williams of Trafford (Con)]

I thank the noble Lord for trying to wrap the discussion up in that one important question. I will take it away. When my noble friend and the noble Lord, Lord Best, speak to Eddie Hughes, the Minister, we will see what progress has been made at that stage. But at this stage, I wonder whether the noble Baroness, Lady Blake, will be happy to withdraw her amendment.

[Lord Falconer of Thoroton (Lab)]

I apologise for interrupting. We have had an hour and 19 minutes on this, but the answer that the Minister gave on the problems with Amendment 320, to which I have put my name, were difficult to follow. She made the point that begging or sleeping rough does not in itself amount to action causing alarm or distress in the absence of other factors under the 2014 Act, with which I agree and which the drafters of Amendment 320 explicitly reflect in subsection (3). I am simply unable to understand her reasons for not accepting Amendment 320.

This is important. It is not possible to say, “Well, here are some incomprehensible reasons that nobody in the Chamber understands, therefore we need the completion of a review.” I did not follow whether the review is part of the way through, whether it is finished or whether there is an expected date for its conclusion. Will the Minister answer two questions? First, what is wrong with Amendment 320 if it precisely reflects what she said? Secondly, where has the review got to? When did it start and when will it finish?

[Baroness Williams of Trafford (Con)]

As for what is wrong with Amendment 320, I explicitly said to the noble Lord, Lord Best, that the Government agree that the time has come to consider the Vagrancy Act. There is an opportunity to speak to the appropriate Minister before Report to answer some of the questions that have been asked this afternoon. I do not know the answer to the second question, but I will write.

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[Lord Paddick (LD)]

My Lords, I thank my noble friend Lady Brinton for introducing these amendments, which we support. The “Helen’s Law” campaign has achieved a great deal by persisting in campaigning for victims and their families by ensuring that failure to disclose the whereabouts of a victim’s body can increase the killer’s time in custody. These amendments go further, as my noble friend has explained. She has worked with Helen’s mother, Marie McCourt, and others on these amendments, proposing to create specific offences of desecration of a corpse and concealment of a body.

These amendments address serious and real human suffering caused by preventing a victim’s family from recovering the body of their loved one, whose life has already been cruelly snatched from them. The proposed offences would respond to that cruelty in a way that may be inadequate in reducing the hurt, but at least they reflect the justified anger we all feel when killers compound their inhuman actions with further callousness and inhumanity. As my noble friend explained, the existing legislation is not only inadequate but rarely used. We support her amendments.

[Lord Falconer of Thoroton (Lab)]

My Lords, I pay tribute to the noble Baroness, Lady Brinton, for the clarity with which she has put this forward. The driving force behind this amendment is Marie McCourt whose daughter Helen McCourt was murdered by Ian Simms, and the body was never found. Ian Simms never indicated where the body was, refused to acknowledge what had happened, and was eventually released on parole. Prior to him being released on parole, Marie had campaigned successfully for a change in the law, which said in effect that if you did not indicate where the body was, parole should normally be refused.

Now, very effectively and with great understanding, Marie McCourt has pressed for a change in the law to make sure that there is, in effect, a crime of desecrating the body of somebody you have murdered. This is a greater problem than previously. In recent times, 54 murder trials have taken place without a body. We on this side of the Committee strongly support this offence. It might be asked whether this matters if you are being charged with murder. It matters to the victims’ families and therefore it should matter to the law. That is why we support this amendment.

[The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)]

My Lords, I will address the two amendments in reverse order, starting with Amendment 292L. This creates a new offence of concealment of a body and repeals the existing offence of obstructing a coroner. As it stands, to obstruct or prevent a coroner’s investigation of any body found, when there is a duty to hold one, is to commit an offence. That offence is a common-law one, triable only on indictment, and carries a maximum penalty of life imprisonment. The common-law offence is therefore wide-ranging. Proof of the offence does not require a person to conceal or attempt to conceal a body, or proof of a specific intent to obstruct a coroner—only that the coroner’s inquest is obstructed or prevented.

Amendment 292L replaces that wide-ranging offence that covers several ways in which a coroner is obstructed with a more narrowly defined offence which relates to obstruction by concealing a body or to facilitate another criminal offence. The specific offence proposed by the amendment also has a maximum penalty of three years—less than the life sentence that can be imposed under the current law. This approach, in our view, creates gaps in the coverage of the law compared with the existing common law and reduces the ability of the court to sentence for the full range of the offences.

We agree that concealing a body in this context should always be recognised by the law, and it already is in several ways. First, in the circumstances where an offender is responsible for a homicide, the fact that they concealed or mutilated a body is a clear aggravating factor in sentencing. As a result, the sentence will be increased to reflect the additional harm caused. Noting what the noble and learned Lord, Lord Falconer of Thoroton, said about the increasing number of trials that take place without a body, we acknowledge that as forensic techniques have improved, so has the determination or ingenuity of the criminal to try to erase traces.

Secondly, where the concealment of a body is part of a course of action that includes the killing, the sentence for murder—or for manslaughter, I imagine—will include that aggravating factor in deciding on the starting point from which the sentence should be imposed.

--- Later in debate ---

On that last point, the sentence inflation in my professional life has been incredible. That inflation springs from Parliament and the way that this place works. When judges see sentences being doubled, they feel they have to respond and put up the sentences accordingly. However, I maintain that a long and objective look at how we deal with offenders, free of rhetoric and populism, is essential for the safety and security of the people of this country. I beg to move.

[Lord Falconer of Thoroton (Lab)]

I am grateful to the noble Lord, Lord Thomas of Gresford, for moving this amendment. I had not realised, until he mentioned it, his own critical role in the constitution of the UK as it is now through the evidence that he gave to the Kilbrandon royal commission, rightly described as important. Now we know where to look when we see problems in relation to the constitution.

I wholeheartedly agree with the underlying point that drives the way the noble Lord put his case. The criminal justice system is in a terrible mess. He described the position of the prison system, which is also a terrible mess and is not delivering on its aims, particularly to protect the public from crime and reoffending. However, it does not just go to imprisonment; the whole range of sentencing is now in a terrible mess. It goes even beyond that, to the way that the criminal justice system operates in terms of both its procedures and its effectiveness. Surely the time has come for a long hard look to be taken at the criminal justice system.

This is not remotely a criticism of the noble Lord, Lord Thomas of Gresford, because a royal commission is a worthwhile thing, but I can imagine no more profound exercise in futility than a royal commission promoted by your Lordships’ House, moved by the marvellous noble Lord, Lord Thomas of Gresford, and the wonderful noble Lord, Lord Marks of Henley-on-Thames. Can your Lordships imagine this Government —the Government who approximately an hour and a half ago wagged their finger at us and told us we had to finish the consideration of this Bill by the end of tonight, no matter what time it ended—listening to a royal commission’s proposal for an objective look at sentencing? My own judgment is that, sadly, although the noble Lord, Lord Thomas, makes a very powerful point, the same finger of this Government would be waved at the royal commission and no attention would be paid to it. I share the noble Lord’s feeling and analysis but I fear that, because of the nature of this Government, it would be a waste of time.

[Lord Thomas of Cwmgiedd (CB)]

May I add a more hopeful note? It has been wonderful to see this Government bring forward Professor Ormerod’s work on the Sentencing Code and bring it on to the statute book, and in this Bill—this is a good point—the code is being amended rather than there being any new proliferation of legislation. So one ought to say thank you for that.

However, the Sentencing Code shows the problem. I do not know how often the Minister looks at it but it is a fiendishly complicated set of sentences that we have accumulated over the years. Although we have seen a lot of criticism of the 2003 Act, I would say in its defence that an awful lot of thought was given to it. It may not have been quite right, and there was one area which has gone badly wrong. As I complimented one side, I now compliment the other: when we looked at the 2012 reforms to sentencing, a huge amount of thought went into that. A lot of sentences that were thought to be apposite were brought forward or modified, but at least there was some thinking.

We have now reached a stage where we need—on, I hope a nonpartisan basis—to think again. Is it too complicated? The answer must be yes. Have we got the sentencing regime right in terms of its outcomes and, equally importantly, its cost and whether the money can be spent better? There can be no better mechanism for that than a royal commission. I would hope that the initial thoughts of those who drafted the manifesto could be taken forward, at least in that respect. I would hope, though maybe I am being optimistic, that when it was all laid out what an awful state our sentencing regime is in, logic would prevail and we would see some reform. However, that is just an expression of hope by a person who is not a politician.

Police, Crime, Sentencing and Courts Bill

Lord Falconer of Thoroton Excerpts

Lords Hansard - Part 1 & Report stage
Wednesday 8th December 2021 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, I am not going to try to adjudicate on that point, which seems to be a point of procedure, better left to those who know more about it than I do. I have listened very carefully to the debate, and points of principle have been raised. With genuine respect, however, I believe that I have set out the Government’s position on those points of principle. Kicking the can down the road—attractive as that can sometimes appear—will not achieve anything substantive.

[Lord Falconer of Thoroton (Lab)]

This is pretty shocking. There is a lot of support for the principle that the amendment could be so much better if it could be debated. I completely understand the noble Lord’s embarrassment. He does not want to go back to the Ministry of Justice and not have the amendment, but if you want good law, recognising that the Government want this, there is so much that could be discussed to make this provision better.

The noble Baroness, Lady Williams, agreed without any pressure on two things in relation to the additional protest measures. First, she agreed that they should come at the end of Committee and secondly, she did not move them in Committee because of the exact problem that has arisen in this case. She indicates the right way forward. We would greatly appreciate in the House if the noble Lord would show us the same courtesy that the noble Baroness, Lady Williams, showed us.

[Lord Wolfson of Tredegar]

I am very happy to be accused of all sorts of things, but I hope that nobody in this House believes that I act either towards it or towards any of its Members with discourtesy. We may have disagreements, but they are always, I hope, courteous. I am not in the least embarrassed about going back to the Ministry of Justice with or without anything. My task, as I see it, is to set out the Government’s position in this House and then the House has to take a view.

With great respect to the noble and learned Lord, I do not accept that this is a question of tweaking the provision or making it better. The points that have been put to me are really points of principle—people do not agree with this at all, while saying, “Of course we agree.” The matter ought to be presented to the House and dealt with by it today.

Police, Crime, Sentencing and Courts Bill

Lord Falconer of Thoroton Excerpts

Lords Hansard - Part 2 & Report stage
Wednesday 8th December 2021 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

Is the Minister saying—I take Clause 9(5)(a) as an example—that, when considering necessity and proportionality under the data protection legislation, the existence of this power is not relevant because the data protection legislation will determine whether it is necessary and proportionate, and the only significance of the words in brackets is to make it clear that this opens a new gateway?

[Baroness Williams of Trafford (Con)]

Can the noble and learned Lord elucidate?

[Lord Falconer of Thoroton (Lab)]

Under the data protection legislation, whether or not to disclose the information depends in part on its necessity and proportionality, which is a balancing act. I think the noble Baroness is saying that the words in brackets are there—I am taking Clause 9(5)(a) as an example—only to make it clear that we are opening a new gateway here. They are not there to say, “In considering necessity and proportionality, have regard to the fact that this new power is given”. Is that what the noble Baroness is saying about how the words in brackets operate? If it is too late at night and I am not clear enough, she can by all means write to me, but it is quite important.

[Baroness Williams of Trafford (Con)]

The words provide that the processing is lawful under data protection legislation.

[Lord Falconer of Thoroton (Lab)]

Is that separate from the words in brackets?

[Baroness Williams of Trafford (Con)]

My Lords, as I understand it, they must be read with Article 6 of the GDPR, so it is a read-across. Yes, I am tired—my brain is not working very fast today.

Clauses 9, 15 and 16 also already ensure that data can be disclosed only in compliance with the data protection legislation; I mentioned that that requires a case-by-case consideration of the necessity and proportionality of a disclosure.

Obligations of confidence and other restrictions on disclosure are not breached by a disclosure under Clauses 15 or 16, or regulations made under Clause 9, but patient information and personal information held by a health or social care authority should not be shared in line with our proposed amendments, as it is vital that authorities are able to share their data when necessary to determine what is causing serious violence in local areas. Our draft statutory guidance provides some additional steers on this, and the guidance will be subject to formal consultation following Royal Assent and can be revised if it needs further clarification.

I turn to Clause 17, and first I shall answer a point made by the noble Baroness, Lady Brinton. A direction under Clause 17 cannot be made to require information requested under Clause 16 to be provided if the information is patient information or if the health or social care authority is requested to provide personal information. I hope that she finds that clarification helpful.

Amendment 35 strikes out Clause 17, which confers a power on the Secretary of State to direct a specified authority, educational, prison or youth custody authority, where it has failed to discharge its duty imposed under the Bill. I assure the House that we expect these powers to be seldom used and utilised only when all other means of securing compliance have been exhausted. However, in order for this duty to be effective, there needs to be a system in place to ensure that specified authorities comply with the legal requirements that we are proposing to help prevent and reduce serious violence.

I hope, in the light of my explanation, that the noble Baroness, Lady Meacher, and the noble Lord, Lord Paddick, will be content not to press their amendments and support the government amendments.

Police, Crime, Sentencing and Courts Bill

Lord Falconer of Thoroton Excerpts

Lords Hansard - Part 1 & Lords Hansard - part one & Report stage
Wednesday 15th December 2021 Lords Chamber

There would also be glaring and unjustifiable discrepancies with the penalty for breach of other sorts of prohibition on identifying a participant in a trial, some of which might have been imposed for a witness’s protection. I made that point in Committee. With respect, it was not directly addressed by the noble Baroness, Lady Chapman, and we therefore remain unpersuaded that it is appropriate to legislate selectively—

[Lord Falconer of Thoroton (Lab)]

Having very kindly accepted that the maximum is wrong, the Minister’s only point appears to be that it would put it out of sync with these others. What work is being done in the Ministry of Justice and when can we expect to see legislation bringing them all to a position where there is an appropriate maximum sentence? This matters very considerably to victims of a Section 1 crime.

[Lord Wolfson of Tredegar (Con)]

My Lords, it certainly matters. I am a little concerned that the noble and learned Lord has seen my notes because that was precisely the point to which I was coming when he intervened. I am grateful for the intervention and for the points made by my noble friend Lord Sandhurst and the noble Lord, Lord Faulks, which I endorse. We need consistency and a fair approach in this area. We will begin by drawing up, as my noble friend Lord Sandhurst invited us to, a list of relevant offences, to ensure that we capture this issue fully.

[Lord Falconer of Thoroton (Lab)]

I am sorry to interrupt again, but when that has been done, what is the next stage?

[Lord Wolfson of Tredegar (Con)]

There may be others, but I am coming to the next stage. The noble and learned Lord is very keen.

Also part of the framework is the law of contempt of court, which we must consider if we are to look at this area properly. In some circumstances, it might be an alternative to charging the appropriate breach offence, although conduct is usually dealt with as a contempt only where some harm to the administration of justice was likely. It also does not attract the investigatory powers which these offences attract.

My right honourable friend the Attorney-General has already independently asked the Law Commission to examine the law of contempt in this regard. I could not say this in Committee because at that point I was saying that we would invite the Law Commission to do it. In fact, they have already committed to such a review. We have asked them to add in the breach of anonymity offences, both for Section 5 and related offences.

The noble and learned Lord says “years”. It will take some time, but the alternative is to legislate on a piecemeal basis. I do not want to explain to a victim of FGM who is named why she is being treated less favourably than a victim of any other offence. We want consistency in this area. If we have a Law Commission to ensure that we look at the law holistically in an appropriate way, it will deliver a coherent approach to penalties for all offences involving breach of reporting restrictions.

Moving to Amendments 78C and 78D, the unduly lenient sentence scheme allows anyone—the CPS, victims, witnesses, or members of the public—to ask for certain sentences imposed by the Crown Court to be considered by the law officers, where that sentence is felt to be unduly lenient. I underline that point. Anybody can ask the law officers to consider referring the sentence to the Court of Appeal. I am afraid that a number of my colleagues at the Bar have taken the view that it is somewhat improper for Members of Parliament to invite the Attorney-General so to consider. I underline again that anybody can ask the Attorney-General to consider referring a sentence to the Court of Appeal. That is how the scheme operates. It is then for the law officers to decide whether to refer the case to the Court of Appeal, which may then decide to increase the sentence.

Amendment 78C places a duty on the Secretary of State to nominate a government department to inform victims of the details of the scheme. We recognise the importance of victims being aware of the scheme and being clear on how it operates. However, the duty is not necessary. The revised Code of Practice for Victims of Crime—the victims’ code—which came into force on 1 April, already provides victims with the right to be informed about the existence of the scheme. Furthermore, it includes a requirement for the witness care unit to inform victims about the scheme following sentencing. Therefore, that provision is unnecessary.

Turning to the timing point, an application by the law officers to the Court of Appeal must be made within 28 days of sentencing. The absolute time limit of 28 days reflects the importance of finality in sentencing. That point of finality in litigation is sometimes marked by a Latin tag, which I will not trouble your Lordships with, but it is particularly important when it comes to sentencing. While we will keep the operation of the scheme under consideration, including the time limit, there are no current plans to remove the certainty of an absolute time limit in any circumstances.

Amendment 78E would expand the circumstances where a whole life order would be the starting point to include cases of murder involving the abduction and sexual assault of a single person. I explained in Committee that of course we sympathise enormously with the concerns that underpin this amendment, but we do not agree with its purpose. Our current sentencing framework can and does respond to these horrendous cases. The courts can, and do, impose lengthy sentences that fully reflect the gravity of this type of offending and the appalling harm that it causes to families of victims and the community generally.

All those convicted of murder already receive a mandatory life sentence. The murder of a single victim involving sexual conduct has a starting point, when determining the minimum time to be served in prison—the tariff, as it is sometimes called—of 30 years. This can be increased depending on the circumstances of the individual case and the presence of aggravating factors. Additionally, as was demonstrated by the sentencing of Wayne Couzens for the horrific murder of Sarah Everard, there is an existing discretion to impose a whole life order if the seriousness of the individual case is exceptionally high, which Wayne Couzens received.

Amendment 82B, tabled by the noble Baroness, Lady Brinton, seeks to prevent the release on home detention curfew of any offender who has previously breached a protective order and who has been convicted of offences relating to stalking, harassment, coercive control, or domestic abuse. I set out in Committee the importance that we attach to this area. The noble Baroness was quite right to refer to my comments made in another part of the Palace at an event organised by the right reverend Prelate the Bishop of Gloucester, and I stand by them.

I have asked officials to consider the risks presented by such offenders, to ensure that all appropriate safeguards are in place to protect victims and the public and to ensure that unsuitable offenders are not released on home detention curfew. Once that review is complete, I will update the noble Baroness and the House. Despite the fact that we were not able to arrange a meeting in the last 48 hours, I or the Minister for Prisons will be happy to meet with her. I do not believe that legislating on this matter is proportionate or effective in safeguarding victims. The safeguarding can be achieved via the policy framework, without the need for any change in statute.

We are committed to ensuring that serious sexual and violent offenders serve sentences that reflect the severity of their crimes. For those reasons, I urge noble Lords not to press these amendments.

Police, Crime, Sentencing and Courts Bill

Lord Falconer of Thoroton Excerpts

3rd reading
Tuesday 25th January 2022 Lords Chamber

Moved by

[Lord Falconer of Thoroton]

1: Clause 3, page 4, line 39, at end insert—
“(c) manslaughter in circumstances where—(i) the death was not caused by dangerous driving or driving when under the influence of drink or drugs, and(ii) but for causing death or serious injury to the emergency worker, the unlawful act would have attracted a maximum sentence of less than five years imprisonment.”

[Lord Falconer of Thoroton (Lab)]

My Lords, on 24 November 2021, the Government announced in a press release that they were introducing into the Bill a provision that imposed a mandatory life sentence where a key emergency worker dies as a result of manslaughter. The introduction of that provision into the Bill was not the product of any debate in this House or the other place.

On 1 December 2021, the relevant amendment giving effect to the provision that there was a mandatory life sentence for manslaughter was tabled with the Table Office. On 8 December 2021, the matter was debated in this House. A large number of Peers spoke in the debate, including the noble Viscount, Lord Hailsham, the noble and learned Baroness, Lady Butler-Sloss, the noble Baronesses, Lady Fox, Lady Hamwee and Lady Jones of Moulsecoomb, the noble Lords, Lord Beith, Lord Pannick, Lord Carlile and Lord Marks, and the noble Earl, Lord Attlee. They gave a variety of reasons why the provision had particular defects; there was a range of detailed complaints about it. The noble Lord, Lord Ponsonby of Shulbrede, spoke on behalf of the Labour Front Bench and indicated that Labour accepted the amendment in principle but that there were problems with the detail.

Before there was a vote on the amendment itself, the noble Viscount, Lord Hailsham, suggested an adjournment to discuss the detail. There was a vote on that and it was rejected. There was then a vote on the amendment. Anybody fairly reading that debate would conclude that the principle of the amendment was agreed to—that this House agreed to the principle of a mandatory life sentence where an emergency worker dies as a result of manslaughter. However, nobody reading that debate could possibly conclude that the detail was treated as being resolved in relation to that.

One detail that affected many noble Lords was the consequence of having a mandatory life sentence for manslaughter if, for example, in a demonstration about, say, HS2, a demonstrator pushed over a police officer acting in the execution of his or her duty, who bumped their head—which would be common assault at worst—and died. That demonstrator would end up with a mandatory life sentence. They would not be saved from the mandatory life sentence by the exceptional circumstances defence.

This caused many people in the House considerable concern. I completely accept that the principle of the mandatory life sentence is no longer up for debate; that has been resolved. However, in conjunction with my noble friend Lady Chakrabarti—to whom I pay tribute for her work on this issue—I have crafted an amendment that does not touch the detail of the provision, in the sense that it leaves in place the principle agreed but says that, where the offence you would otherwise be charged with does not attract a sentence of more than five years, you will not be susceptible to it. This is to deal with the one-knock manslaughter case. It leads to justice and reflects where the House is coming from. I strongly commend the amendment to the House and very much hope that the noble Lord, Lord Wolfson, will address the detail.

--- Later in debate ---

For those reasons—and, frankly, with renewed regret that I am having to deal with this on the floor of the House when I could have had conversations about it in good time previously—I respectfully beg the noble and learned Lord to withdraw the amendment.

[Lord Falconer of Thoroton (Lab)]

I am incredibly grateful for the support from all around the House. I am particularly grateful to my noble and learned predecessor and my noble and learned successor for supporting me in this matter.

The response from the Minister was incredibly disappointing. It was bombastic and technical and failed to address the essential issue, which is: what about the “one knock” manslaughter case? The answer that came in the end appeared to be, “Actually, we intend to cover that.”

The Minister made one good point on the drafting. He is absolutely right that my draft covers only 17 year-olds because it refers only to page 4. I would have had to submit the same draft in relation to pages 5 and 6 as well, which, if I had got page 4 in, I am sure would not have made much difference.

This is such an important issue that I would have been tempted to obtain the opinion of the House. All around the House there has been support for it, but the only encouragement I get is the technical point the Minister made. It may be that when this comes to the House of Commons, the Government will consider that they could improve my drafting and get to the same result. In those circumstances, with regret, I beg leave to withdraw the amendment.

Amendment 1 withdrawn.