Police, Crime, Sentencing and Courts Bill

Lord Hope of Craighead Excerpts

2nd reading
Tuesday 14th September 2021 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, there is so much in this Bill that causes concern, whatever else in it we can agree with, so I will focus on only three points. It is a bit difficult for me, as the 45th speaker in this debate, to find something new to say, but I think my first point is new; the second point, not so new; and the third point has been dealt with by several others.

My first point relates to new offence in Clause 66 of causing serious injury by careless or inconsiderate driving, which will attract a prison sentence. My second point relates to the provision in Clause 106 to increase the minimum term for discretionary life sentences from one-half to two-thirds. My third point relates to the powers given to the Secretary of State to make provision, by regulation, about the meaning of key phrases in Part 3 of the Bill relating to public order—a matter referred to in powerful speeches by my noble and learned friend Lord Judge and the noble Lord, Lord Blencathra.

Of all the driving offences, careless or inconsiderate driving is at the bottom of the scale. It has never been thought until now that it should attract a prison sentence. A moment’s inattention is all it takes, and that may happen even in the case of the most careful and responsible driver. There is no criminal intent whatever. Where criminal intent exists, it is possible that the prospect of a prison sentence may act as a deterrent, but that is not so where intention of that kind is not part of the offence at all. As for serious injury, a broken arm or broken leg will do, and that can happen to someone who, by a moment’s inattention, is knocked off a bicycle. The injury is of course to be regretted, but it seems to me that the imposition of a prison sentence for an offence of this kind is disproportionate. Do we really need to do this? Has any assessment been made of the consequences of this seemingly well-meaning measure?

At the other end of the scale is the discretionary life sentence. Not so long ago, the minimum term was reduced from two-thirds to one-half. I think that was to help to reduce prison numbers, and because it was after all only a minimum term. Given the fact that our prison population is still rising, why revert to two-thirds? Has any assessment been made of the consequences for our prisons and of the pattern of release dates since the minimum term was reduced?

I turn to a matter that has been discussed by many other speakers, on Part 3 of the Bill. The right to peaceful protest, whatever the issue and whether or not we agree with it, is an essential part of our democracy. There is no doubt that our laws are being challenged by the way in which that right is currently being exercised but any attempt by the Government to curtail that right, such as we find in Part 3, must be scrutinised with great care. I focus on the changes as to the powers of the police to give directions under Sections 12 and 14 of the Public Order Act, a breach of which amounts to a criminal offence. That is the context for the measure that the noble Lord, Lord Hendy, emphasised in his speech not long ago. If the police reasonably believe that a procession or an assembly may result in public disorder or disruption to the life of the community, they may give such a direction. Now we find that the Secretary of State is to be given power to make provision by regulation as to what is or is not to be treated as falling within these expressions. That excludes not only a power to define these expressions but also to give examples of cases that are to be treated as falling within them. In effect, as there are no limits, she and her successors are being given the power to declare the kind of protests, the reasons for them and their effect that the Government simply find inconvenient or unacceptable. That declaration will then be used for the giving of directions by the police, with its criminal consequences. As the noble Lord, Lord Blencathra, said, the use of delegated powers in this way is unacceptable.

The guiding principle must surely be that it is for Parliament, not the Executive, to decide what powers to give to the police. The words in the Public Order Act speak for themselves; as the noble and learned Lord, Lord Judge, might say, we know what they mean. Because they are broadly expressed, they can be adapted to the needs of each case. However, if amendments are needed, they should be put in the Bill—so why are the changes, which are already in draft in respect of one of these phrases, not here in the Bill so that we can subject them to scrutiny in the usual way? Can the Minister say why that should not be done?

Police, Crime, Sentencing and Courts Bill

Lord Hope of Craighead Excerpts

Lords Hansard - part one & Committee stage
Monday 25th October 2021 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I support the principle behind the amendments but will make two short points to elaborate on what has already been said. First, I support what the noble Lord, Lord Carlile, said about balance. This has been referred to as a common-law duty, but the common law does not strike hard edges in such matters; it leaves room for balance to take account of particular circumstances.

At one stage in my career, when I was a senior judge in Scotland, I needed to know the state of health of one of my judges, who I knew was terminally ill with cancer. I was able to persuade his doctor, his skilled adviser, to let me know the truth when the judge himself was not prepared to do that. I felt that was the right thing to do; he thought it was the right thing to do; and it was an illustration of balance. The information remained entirely confidential between ourselves, but I had to take a decision as to the extent to which I could trust that judge to continue to sit in open court. The advice I received was very welcome: I was able to allow him to sit in certain conditions, in the light of the information I was given. I give that as an illustration of the way in which balance can operate in practical situations.

The other point to which I want to draw attention is the difference between Amendments 22 and 48. On the one hand, Amendment 22 states simply that

“no information may be shared … which breaches”

the duty set out in the General Medical Council ethical guidance on confidentiality. That is a simple formula that merely requires looking at the way the guidance is expressed; no doubt, with the balances that are built into the guidance. On the other hand, Amendment 48 says that regulations

“must not require the release of personal health information if a doctor regards that release as a breach”

of the duty of confidentiality.

I rather wonder whether that would be the right way to go: to leave it up to the decision of a doctor without further consideration. With great respect to the medical profession, that may be taking a little bit of a risk, because there are situations where a doctor may feel under pressure and that would not be the right thing to do. I think the amendment would be strengthened by taking out the reference to the doctor and just laying it down as a matter of proper structure that the regulations should not require the duty of confidentiality, as set out in the guidance, to be breached, leaving individual doctors’ decisions out of it.

[Lord Kakkar (CB)]

My Lords, I support the principles of the amendments and declare my interest as a registered medical practitioner.

The debate in Committee has been most interesting in this regard, because it raises a delicate and deeply sensitive issue for any practising clinician—any practising healthcare professional—with the suggestion that something that is considered absolutely sacrosanct, the duty of confidentiality, may be in some way undermined.

That is, of course, not to neglect or fail to understand the fact that there are clear circumstances provided in the context of well-recognised and frequently applied professional guidance in which confidentiality may indeed be breached. But there is a suggestion that the way the Bill is drafted, there may be a deeply undermining impact on a very important principle, one that is so well recognised that it is protected in both data protection legislation and, as we have heard, common law. I wonder whether the Minister can explain why it is so important to achieve what are important objectives in the Bill that we need to undermine the common-law effect of such an important principle—confidentiality of medical information—and why they need to be promoted in the way proposed in the Bill. Have Her Majesty’s Government considered other ways to achieve their important objectives without creating this deep anxiety and uncertainty, because the full implications are clearly not well understood by the regulator or by professionals more generally, and which, we must therefore all feel, has the potential to be attended by consequences that could be deeply unhelpful to the nature and solidity of the doctor-patient relationship?

Police, Crime, Sentencing and Courts Bill

Lord Hope of Craighead Excerpts

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

[Lord Thomas of Cwmgiedd (CB)]

I rise briefly to support both amendments. The amendment in the name of the noble Lord, Lord Paddick, looks at this from the position of the victim. It is, of course, right to acknowledge the huge progress that has been made over the last 20 or so years in improving the position of the victim—but we have not got to the end of the road. The important point of his amendment is that it gives further protection to the victim at two important stages: first, where things have gone wrong and there is an inquiry, and secondly and much more importantly, in the victim exercising the right of review where there has been a failure to prosecute. It seems to me, therefore, that the duty of candour is yet another step in putting the victim—as is so often said by politicians on both sides—at the heart of the criminal justice system.

The amendment in the name of the noble Lord, Lord Rosser, looks at this from a broader perspective, which encompasses the position of the defendant and the greater public interest. We should think of experiences over the years. One can go back, for example, to a problem that arose in Tiger Bay in Cardiff over 30 years ago, where the inquiry into the Lynette White murder investigation went on and on. One cannot help feeling that, if there had been a duty of candour, it would have brought that very damaging case to an end.

I say nothing about the undercover policing inquiry as it is still ongoing, but it seems that there is ample evidence that we need to enshrine this duty of candour to protect the position of the defendant and the wider public interest by making it absolutely clear that the police owe that duty—and they should be grateful to have that duty imposed on them, because we need to restore, above all, confidence in our constabularies.

[Lord Hope of Craighead (CB)]

My Lords, I support these amendments as well. I look at the situation from an unusual perspective and with the unusual experience of sitting as the senior judge in Scotland in a criminal appeal. It was a case of murder, and I was not able—because I was sitting in a court where all the evidence was already out—to develop what was at the back of my mind, which was that the police had identified the wrong individual, who was then accused and convicted. I will not go into the facts of the case for obvious reasons, but it struck me that the court at that late stage was powerless to deal with what I thought had not been a frank and fair police investigation. I make that point simply because stages are reached where the situation is beyond recall, but I was deeply disturbed by what had happened in that case and could not do anything about it. So I welcome the steps that are being taken to improve the standard of candour among the police at all stages in the investigation of crime and its aftermath.

[Baroness Williams of Trafford (Con)]

My Lords, I commend the noble Lord, Lord Paddick, for once again sharing his experiences with the Committee in moving his amendment and the noble Lord, Lord Rosser, for tabling his. The noble and learned Lord, Lord Thomas of Cwmgiedd, summed it up very well: we have not got to the end of the road. The noble Lord, Lord Pannick, also challenged me about what the Government are going to do. I hope I can explain to both noble Lords how we are going to get to the end of the road and what we are going to do.

Noble Lords have rightly highlighted the very important fact of transparency within police forces and prosecuting authorities when dealing with victims of crime and their families. I totally agree with noble Lords about the importance of placing this at the heart of engaging and supporting victims and their families and, as we have talked about so much over the last week or so, the importance of regaining trust in the system.

There are a number of areas where the Government have already made progress and where work is ongoing to improve integrity and transparency in policing. In relation to the amendment in the name of the noble Lord, Lord Rosser, it is worth highlighting the introduction of the College of Policing’s statutory code of ethics in 2014, which makes clear the requirement on all officers to act within their powers and with integrity.

In February last year, we amended the policing standards of professional behaviour to make it clear that failing to co-operate as witnesses in investigations and inquiries can be a disciplinary matter. This means that there is now a clear framework in place to hold officers to account where they fail to reach the high standards the public expect of them. Ultimately, a significant breach can mean that an officer is dismissed and placed on the barred list. The noble Lord, Lord Paddick, rightly asked me why no officer had been disciplined following the Daniel Morgan independent panel. The IOPC is still considering that, so we could still get a call-in referral. On the failure to co-operate, those regulations have been in force since February 2020, so anything before that would be difficult to enforce.

I turn to the concept of a duty of candour. Like the noble Lord, Lord Rosser, I pay tribute to the bereaved families and survivors of the Hillsborough disaster, who have campaigned for a statutory requirement for candour in public life. This idea, as noble Lords have said, was also endorsed by the Daniel Morgan Independent Panel as a means of ensuring that law enforcement agencies are fully transparent with the public.

It is absolutely right that the Government carefully consider the arguments made around the duty of candour. This is not the first discussion we have had about it in this Chamber. There is ongoing work across government, and we continue to work closely with our partners to carefully consider all the points of learning in Bishop James Jones’s report concerning the bereaved Hillsborough families’ experiences and from the Daniel Morgan Independent Panel report. Before we respond to Bishop James Jones’s report, we believe it is important that the families have an opportunity to share their views, as it is critical that the lessons that can be learned from their experiences are not lost. We hope to do that as soon as is practicable. The Home Secretary has committed to updating Parliament in due course on the Daniel Morgan Independent Panel report.

I fully understand and empathise with the interest in the introduction of the duty of candour. The Government have already made significant changes to ensure that officers can be disciplined if they mislead the public, and we are committed to properly consider and respond to the recommendations for a duty of candour, as highlighted in Bishop James Jones’s report.

I hope that, having had the opportunity to debate this and given the work that is ongoing, the noble Lord will be happy to withdraw his amendment.

Police, Crime, Sentencing and Courts Bill

Lord Hope of Craighead Excerpts

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

[Lord Hope of Craighead (CB)]

My Lords, I want to provide my support for a remark made by the noble Lord, Lord Berkeley, in the course of his speech. He said that the emphasis should be more on disqualification than on imprisonment. One can understand that, when a jury or magistrate is considering what to make of the facts of the case, the threat of imprisonment may influence the decision to go for the softer option rather than the harder one, whereas disqualification does not have that connotation at all. There is a lot of force in the noble Lord’s point.

I also support the point made by the noble Baroness, Lady Jones of Moulsecoomb. She talked about the patchwork of offences and the need for a much more balanced approach that looks at all the various offences across the board, rather than fitting together one or two things. That is what this enormously long Bill, which, I suggest, is really not suited for this kind of treatment, does.

Having made those remarks by way of support, if one examines the wording of the proposed new clause, one can see that it is a little risky to try to find new wording to replace the well-understood, well-trusted and frequently used phraseology that we have at the moment. For example, in the new meaning of dangerous driving, we are told that that would be where somebody

“commits a breach of … the Highway Code in a way that causes inconvenience, intimidation or danger”.

The word “inconvenience”, which is one of the three alternatives, does not seem appropriate for dangerous driving. I suggest that, if this is to go any further, this word should come out because it is not descriptive of the effect of dangerous driving at all. Similarly, the next subsection defines “careless or inconsiderate driving” and includes “intimidation”, which does not really fit with what one is talking about when one talks of careless driving or driving without due consideration for other road users.

I draw these points to the Minister’s attention because they show that it is a quite a delicate matter to alter the existing wording, which I would wish to preserve instead of trying to introduce a fresh definition.

Finally on definitions, in subsection (4), the words “serious injury” are equated with

“causing death by careless driving”

and the proposal is to insert “or serious injury”. What amounts to a serious injury is difficult to define but, if one is moving in that direction, one would have to introduce additional words, such as “serious injury”. One finds an example in Clause 66, where there is a definition by reference to the existing standards in the criminal court.

I am not sure that that goes far enough when one considers the consequences of some of these offences and the threat of imprisonment, but one has to give very careful thought to what is really meant by “serious injury”. Is somebody breaking their wrist due to falling on the ground enough? Is something that requires them to go to hospital enough? Or is one looking at something much graver? That brings it closer to the idea that one is trying to bridge what might seem to be a gap, where somebody is injured so seriously that it is only by the skill of a surgeon that death is avoided—I can quite see that there is something that needs to be addressed there—but just using the words “serious injury” may mean walking into a trap that it would be better to avoid.

[Lord Judge (CB)]

My Lords, I will speak briefly. The Road Traffic Act and all its many successors have left us with a law in which a simple textbook, Wilkinson’s Road Traffic Offences, is about as fat as a successful marrow. It is absurd that our law is so complicated on something that everybody, or nearly all of us, does every day. Our children will learn it; the day they get to the age of 17, they will want to drive, and so on and so forth.

I entirely agree that this is a patched-up proposal. Personally, I strongly support the idea that we should get this review conducted and analyse exactly what it is that we want to achieve with a modern law relating to road traffic. That law should address not merely the conduct of a person at the wheel of a car but the conduct of a person on an e-scooter or a person riding a bicycle, some of whom are appalling in the way they ride. It should also include pedestrians who step out into a path and make a driver pull away, causing them to knock somebody else over. We need synchronisation of our laws on these issues, which is why I support the noble Lord, Lord Berkeley.

That said, I want to make a different point and indicate how strongly opposed I am to a proposal that would enable a prison sentence to be imposed on a motorist who was not driving dangerously or taking deliberate risks, and was not under the influence of drink or drugs, but simply made a mistake while at the wheel. I agree with the noble Baroness, Lady Jones, that “road traffic accident” is not the right phrase to use. It is a road traffic incident, which must be examined, as the evidence shows.

You can, perfectly reasonably, accuse someone who drives without due care and attention of being negligent, but criminal culpability is inevitably low because it is negligent. Driving without due care and attention is an offence; it is negligence. However, we do not send people to prison for negligent mistakes causing serious injury in the context of, for example, the medical profession. A mistake is made. It is negligent. There is an action. Various steps are taken in respect of the doctor, the nurse, or whoever it might be. The result to the victim is very serious. So, when we examine whether a doctor or a nurse may be prosecuted, we look not for evidence of negligence, a lack of due care or a mistake, but for something demonstrating that he or she fell far below the standards required by that profession of that individual in that job at that time. We must be careful not to introduce a different standard of approach to motoring offences. We must remember that this offence is also committed by the young mum whose children in the back of the car start howling because there is a wasp in the car, in the way that children do. Is she momentarily distracted? Yes. Should she have stayed rigidly looking to the front? I suppose so. Is it realistic to think that she, or most mums, would stay that way when her child is screaming in the back? No. Let us keep it realistic.

I am also troubled by the way we approach consequences in the whole of this road traffic law. We have situations where identical culpability can lead to completely different sentences because there has been a death. Of course a death is dreadful, but does the offence become more serious because there are two or three deaths? Personally, I think it does, but there is a question that needs to be answered: how far are we addressing the culpability of the driving as against the consequences? Death by dangerous driving is no trouble; after all, you are driving dangerously. Drink driving is no trouble; you choose to have a drink. Driving to take risks and show off to your friends is no trouble; you are driving dangerously. However, we need to be cautious about the introduction of prison sentences for people whose standard of driving amounts to negligence, not gross negligence.

--- Later in debate ---

Moved by

[Lord Hope of Craighead]

155: Clause 66, page 63, line 28, at end insert—
“(3) A person is to be regarded as having caused a serious injury to the other person using the road or place only if it would have been obvious to a careful and competent driver that the way the person was driving at the time of the accident was likely to cause serious injury to that other person.”Member’s explanatory statement
This amendment would introduce a test for the words “causing serious injury”, which is needed as a conviction for this offence would attract a sentence of imprisonment.

[Lord Hope of Craighead (CB)]

In moving this amendment, to which the noble Baroness, Lady Randerson, has put her name, I will speak also to my opposition that Clause 66 stand part of the Bill, to which the noble Baroness, Lady Randerson, and the noble Lords, Lord Marks of Henley-on-Thames and Lord Pannick, have added their names.

The essence of the point I wish to raise, which is about imposing sentences of imprisonment for the consequences of an act of careless driving, was put across with great clarity by my noble and learned friend Lord Judge, in his contribution to the previous debate. But if your Lordships will forgive me, I would like to take some time to explain my position on Clause 66, as it raises important issues that affect every driver, however careful and considerate they almost always are.

Clause 66 seeks to introduce a new offence of causing serious injury by careless or inconsiderate driving. As the law stands, causing death by careless driving is a separate, distinct offence but causing serious injury by careless driving is not. That might suggest there is a gap in our law that needs to be filled. Indeed, at one time, it was thought that the fact that a serious injury had resulted from careless driving was not to be taken into account at all when the motorist was being sentenced for careless driving, but that is no longer the case. Under the current sentencing guidelines, that harm has been caused to others is now a relevant factor when a court is sentencing for careless driving, so there is, in practice, now no such gap. It seems that the issue at the heart of this debate is whether the current sentencing approach goes far enough, whether it needs to be changed, and if so, how far, and in what respects.

The Minister in a contribution to the previous debate referred to the need for balance in sentencing. Under the current sentencing guidelines, one finds a balance. Cases are to be assessed in three categories according to the degree of culpability and the extent of the harm. A case where serious injury has been caused will be in the top category where the culpability is higher or the middle one if the culpability is lower. The maximum fine in both cases is I think £5,000. The appropriate fine level is higher for the top category, for which disqualification is possible but not mandatory, and it permits the imposition of seven to nine penalty points. Cases involving serious injury with lesser culpability, which are in the middle of the category, will attract five to six penalty points but no disqualification.

Clause 66 seeks to provide that disqualification is to be obligatory in all cases of causing serious injury by careless driving, that the upper range of penalty points be extended and that there be no limit on the fines that may be imposed. However, it also proposes that a conviction for this offence may result in imprisonment of up to 12 months if prosecuted summarily or two years if on indictment. The contrast between what the penalties are now and what they would be if this clause were to be enacted in its present form, given that serious harm is already a relevant factor under the current guidelines, is astonishing. That is why I thought it right to draw attention to the issue and to the need for the proposal to be explained and fully justified.

Careless driving is something that every competent motorist will seek to avoid but, human nature being what it is, they will not always be able to do so. Lord Diplock explained the difference between dangerous or reckless driving and careless driving in Regina v Lawrence in 1982—Appeal Cases 510. As he put it, driving is dangerous or reckless where it creates an

“obvious and serious risk of causing … injury … or … damage”.

However, he went on to explain that it is not necessary to show that a driver was conscious of the possible consequences of what he was doing for him to be guilty of driving without due care and attention. Section 3, he said,

“takes care of the kind of inattention or misjudgment to which the ordinarily careful motorist is occasionally subject without its necessarily involving any moral turpitude, although it causes inconvenience and annoyance to other users of the road.”

The noble and learned Lord, Lord Judge, gave striking examples of situations that may arise that caused that kind of situation to occur—the wasp in the car with children, for example. Lord Diplock did not mention causing injury, but I suggest that the fact that a serious injury has resulted from that kind of driving does not alter his assessment of the culpability of the offence—the nature of the offence itself. Of course, the circumstances will vary from case to case, but the offence does not necessarily involve any moral turpitude, criminal mind or wicked behaviour at all. A moment’s inattention may be enough.

The fact that the punishments now being proposed for this offence include imprisonment of up to one year if the offence is charged summarily and up to two years if it is brought under indictment is particularly striking. That is a massive increase in the available penalties. Prisons, after all, are nasty, brutal and dangerous places. Quite rightly, imprisonment is reserved under our road traffic law for only the most serious cases where there has been a deliberate breach of the law of some gravity. This prompts me to ask a number of questions to the noble Lord. Why is such a severe penalty now being proposed for something that does not involve a deliberate breach of the road traffic law but which is mere negligence or inattention? What is the reason for this? What research has been carried out into the need for it, and what thought has been given to the consequences of imposing such a penalty for acts of mere carelessness, albeit that a serious injury has been caused?

One may take the example of the mother in the car with the wasp; something has happened because the children were alarmed and she had a moment’s inattention, and a serious injury resulted. Does a person in that situation really deserve a sentence of imprisonment, or even the severe worry of being faced with the possibility of imprisonment? After all, the imprisonment is one thing, but the fact that you are charged with an offence with a penalty of imprisonment is itself a very serious matter indeed, which is not to be taken at all lightly. I suggest that imprisonment as a punishment for such an offence on its own that is being posed here—of course, I leave aside situations where drink or drugs have been taken, which is a different situation altogether—is grossly excessive and wholly inappropriate.

The risk I fear most when I venture out on to the roads is that of accidentally hitting a cyclist. That risk increases as the days grow shorter, we have increasing hours of darkness and, let us face it, not all cyclists are very visible to people driving motor cars along the road, however careful they may be. They do not always wear Lycra and bright colours and it is sometimes extremely difficult to see them and indeed to be sure which direction they will take their cycle in as you approach them. I fear these cyclists when I see them. There are so many situations where it is not possible, despite one’s best efforts, to create the space that is needed when overtaking. You may have a bus coming towards you on the other side of the road. Of course you can slow down, as I often do, and wait for the cyclist to get to a broader place in the road, but it is not always possible to do that. One has to exercise judgment and take as much care as possible.

However, what if the worst was to happen? The cyclist has fallen off the bicycle and breaks a wrist, possibly an arm or a leg. Of course you stop, because there has been an accident resulting in injury. The police have to be called and, no doubt, an ambulance too. There is then the real possibility of a charge of causing serious injury by careless or inconsiderate driving. In a situation of that kind, almost always the driver will be blamed as the person who caused the accident—that is the way things turn out. Then there is this real prospect of a prison sentence. There is nothing in Clause 66 to tell the magistrates when that would or would not be appropriate. Is that really acceptable? Another question for the Minister: has any thought been given to what the Sentencing Council’s guidelines might be if this offence were to be introduced?

Many of your Lordships will have received an email from Cycling UK with recommendations as to how our current road traffic law should be reformed. The noble Lord, Lord Berkeley, with his amendments in an earlier group, has drawn attention to a number of its recommendations. Its interest in promoting these reforms is very obvious in view of the very real risks that cyclists undertake every day. However, I was particularly interested in its comment on Clause 66, and I hope that I have understood it correctly when I say that it suggests that there should be a greater focus on disqualification and less on imprisonment. Indeed, the noble Lord, Lord Berkeley, made that very point in his speech in an earlier group. Cycling UK suggests that the maximum sentence on summary prosecution should be reduced to six months—of course, I would say that it should not be there at all—and that account should be taken of other circumstances not mentioned here that would increase culpability. I would regard that as an improvement if one is to introduce this offence at all; you look for something else, such as taking drugs or driving without insurance or when disqualified. I do not support all that Cycling UK proposes, but there is an indication in what it is saying, which I endorse, that the Government need to think again, and much more carefully, about what needs to be done to alter the current approach to sentencing, which, as I have suggested, strikes a balance as to what is appropriate between the various degrees which may fall within the ambit of this offence.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

I accept that it may be a severe penalty. It depends who you are dealing with, and the circumstances. There are other factors which the courts have to bear in mind when considering the particular effects of disqualification on a particular driver.

[Lord Hope of Craighead (CB)]

I hope the Minister has sat down, because I thought it was time for me to wind up. I am very grateful to all noble Lords who have contributed to this debate.

I hope the Minister will appreciate—I think he does—that my Amendment 155 is simply an attempt. I said that it was not cleverly drafted, and he has made it clear that it has problems attached to it. The essence of my intervention is on Clause 66 and imprisonment. Disqualification is fair enough. I can see that taking people off the road meets almost every situation. The same is true with fines. It is quite remarkable that there are no other non-custodial penalties. What about other orders, such as retraining, community service, or something of that kind? They are not mentioned here. As the noble Lord, Lord Beith, pointed out, the emphasis on imprisonment as the alternative is endemic in the Government’s approach. It is seriously wrong in this situation.

Two phrases came up in the course of the discussion. The noble Lord, Lord Ponsonby, said that only in an “exceptional case” would a custodial sentence be thought appropriate; I understand that and entirely follow it, of course. The Minister said that he contemplated a “serious, life-changing injury” where he might find it difficult to look into the eye of the victim and say, “We cannot equate it to the sort of sentence that involves imprisonment. We cannot provide a custodial sentence to make up for the devastating consequences of the injury.”

The problem is that, as it stands, the clause is completely open-ended. There is absolutely no qualification to narrow down the situation described by both noble Lords. That is what I was trying to do with my Amendment 155, and is part of my complaint. If you introduce sentences of imprisonment, you really have to think about whether the nature of the offence or the circumstances that give rise to that kind of penalty should be more carefully defined. Otherwise, we are at the mercy of magistrates, who vary and may misunderstand the situation.

Of course, as I mentioned in my earlier speech, the mere threat of imprisonment is a devastating situation. I go back to example given by the noble and learned Lord, Lord Judge, of the mother in the car. Her children will ask, “Mummy, does that mean you’ll have to go to prison?” The family must live with the possibility of imprisonment and all its consequences until, eventually, the moment arises when the sentence is pronounced. Even when there is no imprisonment, the fact that this hovers over a family in that situation is devastating enough.

I hope that the Minister will think more carefully. Perhaps the noble Lord, Lord Ponsonby, will also think more carefully about his party’s approach to this problem, because there is more to it than was thought at first sight. I welcome the suggestion of ongoing discussions; I hope that, with the noble Baroness, Lady Randerson, we will be able to have a discussion with the Minister to see whether some attempt can be made to qualify the open-ended nature of this offence to make it a little less devastating.

For the time being, I beg leave to withdraw the amendment.

Amendment 155 withdrawn.

Police, Crime, Sentencing and Courts Bill

Lord Hope of Craighead Excerpts

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

[Baroness Bennett of Manor Castle (GP)]

My Lords, I offer Green support for Amendments 212 and 213, with a preference for Amendment 213, which this debate has made clear is the stronger of the two. I return to the Committee after two weeks away from your Lordships’ House at the COP 26 climate talks. There we heard again and again about the need for evidence-based policy-making on the climate. It is very clear from the powerful introductions from the noble Lords, Lord Ponsonby and Lord Dubs, and all of the subsequent debate, that the evidence here is clearly that short prison sentences do not work.

I very much agree with the comment by the noble Lord, Lord Beith, in response to the noble Lord, Lord Pannick, that those words are there in the Sentencing Code, but clearly we need to strengthen this prescription. The figures from 2019 show that more than 44,000 prison sentences of less than six months were handed out. That was nearly half of all people sent to prison. Some 68% reoffended within a year of release, and for theft offenders, the rate was 82%. Two-thirds of the women in prison are serving a sentence of less than six months. Like other noble Lords, I go to the excellent group, Revolving Doors, and the experience of one person, Robert, subjected to a whole succession of short sentences. He said:

“Any support with drugs and alcohol I had in community stopped when I went to prison. I didn’t access any support in prison and certainly there was no planning when I was released.”


Very briefly, I turn to the reference to children in Amendment 212. The report from the Joint Committee on Human Rights, Human Rights and the Government’s Response to COVID-19: Children Whose Mothers are in Prison, indicated that the Government do not have clear figures on the number of women in prison who are separated from dependent children. It recommended that the Government undertake a census and ask all women coming into prison whether they have dependent children and what ages they are, and that those figures be collated and reported regularly. Can the Minister tell me, either now or in the future, whether that recommendation from the Joint Committee on Human Rights has been acted upon?

[Lord Hope of Craighead (CB)]

My Lords, I support both these amendments, but I want to add a brief comment on the mechanism which they both have in common: the giving of reasons. I know from my own experience how valuable it is to marshal your thoughts when you are having to give reasons, and sometimes when you write them down you wonder whether your thoughts in the first place were correct, and you may think again as a result. So the mechanism that is being suggested is a good one and, with great respect to my noble friend Lord Pannick, I think Amendment 213 in the name of the noble Lord, Lord Ponsonby, does add something to the code.

Of course, the code encourages care in passing custodial sentences and it sets it out very well, but it is this additional element which is of value. One particular word in the amendment adds force to it, and that is “must”. Everybody will have to do this. The noble Lord will know better than I do how often magistrates in particular pass custodial sentences without giving reasons. The point is that this discipline, which both amendments seek to inject into the system, adds value.

That having been said, I hope that these reasons will not just become a rota, because there is some experience in the Supreme Court where we had to give reasons for refusing leave to appeal; we had many of these cases to deal with, and we adopted a mechanism which I think the Minister will know quite well—it was the same reason given every time. That does not really meet what I think the noble Lord, Lord Ponsonby, is getting at, and I hope the Minister will be able to reassure us that when the word “must” is put there, together with the other matters in his report, it will actually add value and people will really think before they give their reasons, and not simply adopt a formula.

[Lord German (LD)]

My Lords, I would like to add a little to the evidence which has already been provided to the Minister, but he must of course know the evidence which has already been made available to him. Just in case it has not, I repeat what the recent sentencing White Paper says: short sentences

“often fail to rehabilitate the offender or stop reoffending.”

It goes on:

“A Ministry of Justice 2019 study”—


an analytical exercise, full of figures—

“found that sentencing offenders to short term custody with supervision on release was associated with higher proven reoffending than if they had instead received community orders and/or suspended sentence orders.”

In other words, the Government’s own evidence points to supporting these amendments—not necessarily in the same words, but certainly the thrust of them. We should remember that, pre-pandemic, nearly half of those people who were sentenced to custody in England and Wales were subject to short sentences of less than, or equal to, six months.

There are many reasons why we must support the change—more effectively reducing reoffending, dealing with issues such as drug use and producing better outcomes for women. Short prison sentences do not provide sufficient time for addressing those issues, such as dealing with substance addiction, or benefiting from any education and training facilities on offer. There may not even be sufficient time for the prison authorities to devise a programme to address the prisoner’s needs on release day. The best we can say about short sentences is summed up by one of the former Conservative Prisons Ministers, of which there have been many in recent years, who said that short prison sentences are

“long enough to damage you but not long enough to heal you.”

Almost two-thirds of prisoners sentenced to these terms of less than 12 months will reoffend within a year. The amazing statistic is that nearly half of adults are convicted of another offence within one year of release, but anyone leaving custody who has served two days or more is now required to serve a minimum of 12 months under supervision in the community. As a result of not fulfilling their supervision orders in some minor way, 8,055 people serving a sentence of 12 months or less, and sometimes of only a few days, were recalled to prison in the year ending December 2020.

What has happened to the Conservative plan to secure a reduction in the use of short sentences? I think I know the answer, but it would be helpful if the Minister could confirm to the House what has happened to this idea. The Bill can address this issue. To finish with the words of a former Conservative Secretary of State:

“For the offenders completing these short sentences whose lives are destabilised, and for society which incurs a heavy financial and social cost, prison simply isn’t working.”


Offenders are less likely to reoffend if they are given a community order. These are much more effective in tackling the root causes behind criminality.

Given the evidence of both Conservative Secretaries of State and the evidence produced in the Government’s own studies, can the Minister explain whether there has been a U-turn or a Z-turn, or whether the course is laid out as described in the evidence that they have received?

Police, Crime, Sentencing and Courts Bill

Lord Hope of Craighead Excerpts

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

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I like many elements of the proposal from the noble Earl, Lord Attlee. We all know that the youth justice system, in theory if not in practice, is focused on diverting young people from criminal justice towards a better life. At 18 years of age, however, this sort of falls off a cliff as young adults get dropped into the mainstream criminal justice system and are left to fend for themselves. This leaves a huge population of young adults stuck in the adult prison system and missing out on essential learning and the foundations for developing work, family and social lives. These young people are also often illiterate.

Those important years of young adulthood—when one is no longer a child but lacks experience and wisdom—are lost in prison, and can never be retrieved. I like the aspect of this amendment, therefore, that would create a structured system of personal development and rehabilitation for those too old for young offender institutions but too young to be written off by society as lifelong criminals. There are issues about the tuition they would be given, because many of them might have problems such as autism or dyspraxia: they would need specialist help. That they would, however, be leaving better informed and educated than they went in is a positive for them as individuals and for society.

[Lord Hope of Craighead (CB)]

My Lords, I have some sympathy for the noble Earl’s amendment because of two experiences of mine. First, I had to undergo 10 weeks of basic compliance training when I did my National Service. It had many of the elements listed here. Hope for the future was there. Certainly, a lot of attention was paid to dress and bearing, teamwork, first aid training, conduct and anger management, fieldcraft and so on. I underwent that for 10 weeks as a recruit. Later in my national service, having become a commissioned officer, I was responsible for training recruits, and I noticed a remarkable difference in their behaviour and appearance between the beginning and the end of the 10 weeks. That impressed on me the value of the training that the Army was then able to provide.

At a later stage in my life, when I was prosecuting criminals, usually in Glasgow High Court, a lot of those who were being prosecuted I could see in my mind’s eye as people who might have been among my platoons of people undergoing training. My great regret was that we had not been able to get hold of them before the gang fights took place that led them to being prosecuted and ultimately going to prison. There is a lot of force in what the noble Earl has suggested. In those days—I am talking about my national service days—there was an enormous force available within the Army to conduct all these procedures. This is not easily managed. You are required to train the trainers and you must have the facilities. However, the philosophy and thinking behind the noble Earl’s amendment has a great deal to recommend it. He is talking about people who have already been convicted, but it would be lovely if one could intercept them before they got into the criminal system in the beginning. We cannot do that but, at least if they have been convicted, we can do something to prevent reoffending, which is what I think his amendment is driving at.

[Earl Attlee (Con)]

My Lords, perhaps I may respond to what noble Lords have said. The noble Baroness, Lady Jones of Moulsecoomb, mentioned young offender institutions. When I was getting educated by Frances Crook, I asked her, “How often do inmates at a YOI get taken out on camp?” She said to me, “John, you should ask how often they are taken out of their cells.”

In response to the noble and learned Lord, Lord Hope of Craighead, I am not proposing conscription or a national service-type solution. However, the points that he makes are absolutely what is informing my thinking. He made a valid point about the need for instructors and I am not proposing the use of the military to provide that function. Prison officers ought to be taking up that role and I envisage, among other things, youngsters who trained as Outward Bound instructors who cannot necessarily get particularly well-paid employment then training as prison officers and being double-hatted. There are a lot of things that we could do if we wanted to do them.

--- Later in debate ---

[Lord Thomas of Gresford (LD)]

My Lords, I ask the Committee to forgive me for using legal language. Some years ago, I had a case in Newport. It was a murder trial in which the victim was profoundly deaf, the defendant was profoundly deaf and four or five of the witnesses were profoundly deaf. This trial proceeded with three sign language interpreters always in the courtroom: one for the defendant, one for the witness and one behind the judge, positioned so that everybody, including the many profoundly deaf people in the public gallery, could see what was happening.

When I first looked at this provision, I thought, like everyone else would, that surely a person who is profoundly deaf should be entitled to carry out their public duty. But the practicalities of it make that an impossible idea. For a deaf juror, there has to be a succession of people interpreting what is going on in the court in sign language. First of all, that is an immense burden on him—he is different from everyone else; and, secondly, while what is said in the court can be heard by everyone else, we do not know whether the person doing the signing gets it right. Nobody can really tell if that is the case, unless, as in my case, you have someone familiar with sign language in the box with the defendant.

How can we be sure that that juror understands the nuances of a summing-up, in which the judge sets out the law that the jury is to apply? Can it be the case that some other person who knows sign language checks that the proper interpretation is being made of what may be very technical language? As I learned, the sign language interpreter is not translating word for word but is conveying ideas. During that case I also discovered that sign language interpreters and witnesses who give their evidence by signing are quicker than people using ordinary speech. It is not a slower procedure, rather it actually speeds things up; the rest of the court have to hold the sign language interpreters back.

However, in the jury room, there is no way in which a profoundly deaf person can follow the arguments being made—passionate and otherwise: nobody can be sure that every nuance of what the other jurors are saying is being transmitted, and nobody can be sure that an interruption or question from a profoundly deaf person is being accurately translated and represents his thoughts.

I take the argument of principle that the noble and learned Lord, Lord Judge, put forward, but from a practical point of view, and from my experience of that trial, it is impossible for a fair trial to take place.

[Lord Hope of Craighead (CB)]

My Lords, I do not think I can add very much to the points that have already been made on the difficulties which this proposal is likely to give rise to, except to say that one has to remember that hearings in criminal trials take a very long time. I do not know whether we, who have never had to be instructed in sign language, are able to tell whether a deaf juror can maintain concentration by that method throughout the entire day that the trial goes on, and indeed whether the interpreter can conduct that process throughout the entire day without relief. Maybe you would have to have another interpreter to come and take over after a reasonable interval, as you often had to do with shorthand writers in the days when they were used.

--- Later in debate ---

[Lord Hope of Craighead (CB)]

My Lords, I do not wish to be taken as suggesting that what works well in Scotland should necessarily be applied in England and Wales, but I think I am right in saying that there has been some attempt in Scotland to allow juries to be remote. The problem one has is that a judge cannot be in two places at once. I think it was thought more appropriate that the judge should be close to the place where the evidence was being taken, with the juries remote in some other room because of the need for social distancing and so on. My point is simply this: I suggest once again, with great respect, that the Minister should find out what has been happening in Scotland and what the experience has been. They may have decided, for the reasons given by the noble Lord, Lord Pannick, that it should not be continued. I simply do not know, but it is worth exploring to find out exactly what the position is.

[Lord Judge (CB)]

My Lords, despite Covid—I know it is not over yet, but despite the 18 months we have had—I have not heard it suggested that one solution to the problems that the courts face is that juries should act remotely. We have trial by judge and jury. I agree with what the noble Lord, Lord Pannick, said, but I want to be just a bit more down to the realities of it. What happens in court when the jury is unhappy with itself or with some of its members? The judge has a most delicate task to perform. On my old circuit—I am sorry to say that the Midlands circuit has this—one juror smelled; he stank, and the jury were extremely unhappy about it. Can all that be done remotely, when the judge is responsible for looking after the interests and needs of the jury as a whole? Do we send messages down the line? How is it accommodated? It requires huge tact, skill and, I think, the personal touch.

My other concern about this provision was touched on by the noble Lord, Lord Pannick—it is the usual one, I am afraid; you have all heard me talk about it. Why should we give these huge powers when we do not need to give them?

--- Later in debate ---

The last thing I have to say is that I, too, do not like general powers taken without a very good reason. There are too many examples of this Government doing things they should not do, without the powers. Give them the powers and we have no idea what they might do. So, as far as I am concerned, the fewer powers they have, the better protected we are.

[Lord Hope of Craighead (CB)]

My Lords, there is a great deal to be said for the need for justice to be done, as the noble Lord has been saying, but there is another side to the coin, which is a trial within a reasonable time. That factor has been exercising the minds of those who have been trying to progress trials through the desperately difficult situation created by the Covid epidemic. I hope those times have passed but, in the defence of those who have been setting out remote proceedings, they have been doing so under great pressure. People have been languishing in custody for far longer than they should have been, awaiting trial, and that factor has to be taken into account in deciding what is the right thing to do. The noble Lord is absolutely right, of course, that the worst option is the one they were driven to—but they were driven to it for very good reasons.

Police, Crime, Sentencing and Courts Bill

Lord Hope of Craighead Excerpts

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

Finally, Amendment 292T proposes that where somebody, A, kills another person, B, in the course of, or with the motive of, sexual gratification, if A intended the action that led to the death of B, that should be an offence that has a maximum sentence of life imprisonment. This is to ensure that the “rough sex” defence cannot be deployed. It means that where that does happen there is an offence, punishable up to life, available to the prosecutors to prosecute and for the jury to find the person guilty of. I would be very interested to hear the Government’s reaction to that. I beg to move.

[Lord Hope of Craighead (CB)]

My Lords, I support Amendment 284 for all the reasons that the noble and learned Lord, Lord Falconer of Thoroton, has explained. However, I respectfully suggest to him that there is a slight mismatch between that amendment and Amendment 285. Amendment 284 is so broadly defined, for the reasons that have been very well expressed, that it would include the conduct that is described in Amendment 285. Indeed, if we look at the wording of Amendment 285, harassment is an essential element of that offence.

I raise the point because there is a difference between the penalties. The value of the kerb-crawling clause is that it introduces a possibility of disqualification, and I see the force of that, but the fine is only level 3, whereas the fine in Amendment 284 is level 5. If I was a prosecutor, having to decide which charge to bring, I would probably go for the offence in Amendment 284 and forget about the disqualification. I wonder whether, if the noble and learned Lord is thinking of bringing the matter back, he might try to amalgamate these two and perhaps put a subsection into Amendment 284 to cover the situation that if the harassment offence is conducted from a motorcar, in the way broadly described in Amendment 285, it would attract the additional penalty of disqualification. It would then be brought into Amendment 284’s sanctions, which are imprisonment, which might well be appropriate in a kerb-crawling offence, and also the level 5 fine. That is a refinement of drafting, but I am very much in favour of Amendment 284 as it stands, particularly in view of the broad way in which it is expressed.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I offer Green support for all these amendments. Some of my questions have just been answered by the noble and learned Lord, Lord Hope of Craighead, and his suggestion that some of the amendments be combined is positive, because retaining the opportunity to take away the right to a vehicle in an offence involving a vehicle is very useful.

I am aware of the time and the pressure to make progress, but it is a great pity that we are discussing such an important group of amendments, all put forward by the noble and learned Lord, Lord Falconer of Thoroton, so late at night and in this rather rushed way. I will just draw some comparisons and links between them.

One thing to highlight is how much these amendments come from community campaigning from the grass roots up. I imagine that the campaign for the offence of harassment draws, in large part, from the group called Our Streets Now, set up by sisters Gemma and Maya Tutton, aged 16 and 22, who are working with the charity Plan International UK. Their hashtag is #CrimeNotCompliment. I suspect that the noble and learned Lord might have drawn on their ready-made Bill and I note that this has had strong cross-party support in the other place. I draw on the words of the women’s rights campaigner Nimco Ali, who said it is “bizarre” that street sexual harassment is still legal. Littering and smoking are banned, but this kind of behaviour is not.

On Amendment 285, I briefly highlight that Generation Rent, another grass-roots campaign group, has been pushing for action here. A report by Shelter in January found that, between March and September 2020, around 30,000 women had been offered housing in exchange for sex. This is a function of the extreme dysfunction of our current housing system.

I have to address Amendment 292M personally because, as I suspect is the case for many people, particularly women, it is something I have personally experienced. I was 11 years old in another country, out in the centre of Sydney on my own, when I was subjected to this offence. I was taught, as lots of young girls were then and probably still are now, to laugh, turn around and walk away. But that I can still vividly remember that street scene shows that it had an impact on me. When I look back now, I felt as an 11 year-old that this was a threat to my right to be on the streets. I did not tell my mother, because I was worried that she would think I should not be allowed out on my own to exercise the freedom that I wanted and continued to exercise. It is crucial that we see a change in attitude here and a review is a good way to address that.

The noble and learned Lord, Lord Falconer, has covered Amendment 292T very well, but we must note that Femicide Census, campaigning on this and broader issues, reports no sign of a reduction in the rate of femicide. That study covered a 10-year span from 2009 to 2018. We are not making progress on this, but we need to. I hope the Government will go away and look at this important group of amendments very seriously, and come back to us with proposals covering—I like to be an optimist—all of them.

Police, Crime, Sentencing and Courts Bill

Lord Hope of Craighead Excerpts

Committee stage
Wednesday 24th November 2021 Lords Chamber

[Lord Judge (CB)]

My Lords, we have not had time yet for all of us to read the report from the Secondary Legislation Scrutiny Committee or, for that matter, that of the Delegated Powers and Regulatory Reform Committee, whose paper is entitled Democracy Denied? The Urgent Need to Rebalance Power between Parliament and the Executive. I have read that, but I did not get round to the first.

We have to support our committees—that is why we have them; they are cross party. This is a tiny amendment of significance. The amendment does not propose any interference with the power to address the problem of serious disruption. It is not intended to address that. The submission is that the way in which the legislation is drafted, in Clause 55(4) and Clause 56(6), is completely unnecessary to enable justice to be done in whichever way the Government think it is appropriate for justice to be done.

Secondly—this is a bit naughty of me—I think the provision reflects a growing constitutional wheeze, what I call the “blank cheque wheeze”. It is this: the Executive tell the legislature to please legislate, and the legislature legislates—and, when it legislates, the Executive then tell the legislature what the legislation means. That is a blank cheque that we are being asked to give in these clauses.

As to the words, I know that it is quite late at night and so I shall be short, but do any of us here not understand two simple English words—“severe disruption”? I mean, come on, even the lawyers among us cannot think of a lot of differences. “Severe”, “serious”—get out your thesaurus. They are simple English words, and the two words put together make a perfectly clear picture of what is being addressed and sought to be protected.

This is unnecessary and a wheeze. We really must not allow the Executive to start treating this way of legislating—called in more elegant terms tertiary legislation —by saying, “We’ll tell you what it means when we get around to it”. The Secretary of State has started to tell us what it means. The place where we should be told what it means, if it does not mean what it says—and I think that it does mean what it says—is in a definition clause within the primary legislation.

[Lord Hope of Craighead (CB)]

My Lords, I put my name to Amendment 308 in the name of my noble and learned friend Lord Judge and shall say a few words in support of what he has just said. It was quite clear from the reply by the Minister to the previous group that these words, “serious disruption”, are the key to the proportionality of the clauses that we are considering. They are absolutely central to the whole proportionality of the scheme. Of course, if something does not amount to a serious disruption, the police take no action; if it does amount to that, within the ordinary meaning of the word, the police have authority to do so.

I mention that because, while I support entirely what my noble and learned friend has just said, there is an element of risk here, which I think the noble Lord, Lord Rosser, hinted at in his comments in the last group. It is the risk of lowering the threshold. Why else is the power being taken? If it is not in the present Home Secretary’s mind to lower the threshold, the risk is there. It is for that reason that I suggest there is a risk here that should be avoided.

There is also the point about the clarity of the legislation. One element of the rule of law is that the law should be accessible, and the more you attempt to define words by regulation and not in primary legislation, the more inaccessible the true meaning of the words becomes. It is not a way to go down—it is unnecessary, as my noble and learned friend said—and I hope very much that the Government do not proceed with this scheme.

[Baroness Chakrabarti (Lab)]

The noble and learned Lord is exactly right about this constitutional problem, but there is a further point to be made. In this context, it is not just the usual problem of allegedly unclear legislation that is then going to be sorted out by regulation later, and the relationship between the Executive and the legislature not as it should be. It is also in danger of interfering with police operational independence. To be explicit about this, my fear is that the police will take whatever view they take of what this legislation means in certain circumstances and do their best—and if a Home Secretary of the day, even well into the future, thinks that the police are being too lenient towards protesters, or perhaps there is a commotion in the media, regulations will be used further to define what “serious” and “disruption” mean so as to mandate the police effectively to be more heavy-handed than the natural meaning of the words would suggest.

Police, Crime, Sentencing and Courts Bill

Lord Hope of Craighead Excerpts

Lords Hansard - Part 1 & Lords Hansard - part one & Report stage
Monday 13th December 2021 Lords Chamber

[Baroness Bakewell of Hardington Mandeville (LD)]

My Lords, I support this group of important amendments, which seek to bring some sort of equality into the Bill when dealing with the Gypsy, Roma and Traveller communities, which is significantly absent from the Bill as it stands.

On Friday, the most reverend Primate led a debate on the challenges to freedom of speech and the role of upholding freedom of speech. He said in his remarks that one of the threats to freedom of speech is the “dehumanisation” of those with whom we disagree:

“We must be alert to how our habits of communication can stifle our creative imagination—how they might make us see others as somehow less than fully human.”—[Official Report, 10/12/21; col. 2109.]


While this section of the Bill is not about freedom of speech, it is certainly about the loss of freedom to roam.

In Committee, we heard speeches from some quarters which made assumptions about the character and lawfulness of the Travelling community, without evidence being provided to substantiate the allegations. All the amendments in this group deal with Part 4 of the Bill, which seeks to demonise and terrorise the Travelling community. I support Amendment 55ZB and congratulate the noble Baroness, Lady Whitaker, on her contribution.

The Travelling community is often portrayed as being less than fully human. It is true that their way of life is very different from that of those in this Chamber, but they are human, and they have the right to a roof over their heads, to educate their children and to have access to healthcare. This can be achieved only when they have somewhere to stop with their caravans. The Minister has rightly said that the provision of sites is a local authority matter and dealt with through the planning process, but she is reluctant to ensure that local authorities step up and fulfil this role.

As a vice-president of the LGA, I receive a regular copy of the Local Government First periodical. In the latest edition, there are two articles on Gypsies and Travellers. The first is from Sarah Mann, the director of Friends, Families and Travellers, about countering inequalities. GRT communities are known to face some of the poorest life outcomes across multiple indicators among the UK population. FFT provides local government with training on cultural awareness to provide more inclusive services, and this has resulted in the provision of more transit and permanent sites in certain areas. The second article was from Boris Worrall, chief executive of Rooftop Housing Group, which provides high-quality accommodation solutions to the Travelling community. He writes that the evidence shows that

“where high-quality sites are provided for the … (GRT) communities, and managed effectively, there is a wealth of evidence about better outcomes for residents, positive community relations and the avoidance of taxpayer costs.”

There are solutions out there to what some sections of our community see as the problem of GRT. It is part of the role of government to promote these to the benefit of all. The draconian measures in this Bill are not the answer and are a sledgehammer to crack a nut. My friend Lord Avebury, had he been here, would have had much to say on this matter.

[Lord Hope of Craighead (CB)]

My Lords, there is a lot of force in what the noble Lord, Lord Pannick, said about reasonable excuse. There is a problem, however, in that one would not know that one had a reasonable excuse until one had been charged with the offence. The advantage of the amendment spoken to by the noble Baroness, Lady Whitaker, and others is that it achieves certainty and intercepts the risk of being brought to court to have one’s reasonable excuse determined. Although I tend to agree with what the noble Lord said, it comes too late in the process, and the safest and most secure way of dealing with it is to intercept the process at the beginning, which is exactly what the amendment in the name of the noble Baroness, Lady Whitaker, seeks to do.

[Lord Paddick (LD)]

My Lords, there are two problems here. Because of the behaviour of the lawless few, all Gypsy, Roma and Traveller communities are being stereotyped as troublemakers. The new law creates offences when people trespass on land with vehicles where, among other things,

“it is likely that significant damage or significant disruption would be caused”,

and, again, where

“significant distress … is likely to be caused”.

All GRT people are likely to be criminalised by these new offences because people’s prejudices will result in them anticipating damage, disruption or distress, despite no previous experience of the GRT people concerned, or any other evidence—just their own prejudice. The second problem is that there is no option for many GRT people other than to trespass on land because local authorities do not, and do not want to, provide authorised pitches. Imagine the reaction of motorists if there were no local car parks and double-yellow lines on every road? That is the equivalent of what GRT people face.

That is the reason for these amendments. In the absence of removing the whole of Part 4 from the Bill, we will vote with the noble Baroness, Lady Whitaker, should she divide the House. At the very least, the police should not be allowed to seize caravans when they are peoples’ homes and the statutory duty on local authorities to provide authorised sites should be reinstated. That is the purpose of my Amendments 55ZC and 55AA. These may be planning issues, but the clerks have ruled that these amendments are within scope.

Police, Crime, Sentencing and Courts Bill

Lord Hope of Craighead Excerpts

Lords Hansard - Part 2 & Lords Hansard - part two & Report stage
Monday 13th December 2021 Lords Chamber

Moved by

[Lord Hope of Craighead]

60A: Clause 67, leave out Clause 67

[Lord Hope of Craighead (CB)]

My Lords, I am moving this amendment to enable the House to continue the discussion which took place in Committee with regard to what was then Clause 66: the new offence of causing serious injury by careless or inconsiderate driving. I should stress that we are dealing here with careless driving pure and simple, with no aggravating factors or other offence being committed—an act of carelessness or a moment of inattention which causes a serious injury.

My objection to the clause relates to the fact that among the penalties that a conviction for this offence will attract is a sentence of imprisonment: two years on indictment and one year if prosecuted summarily. There are also provisions for automatic—or, I should say, obligatory—disqualification and endorsement. I make no complaint about that, nor do I complain about the two-year sentence on indictment. However, I am concerned about the sentence of imprisonment in cases which do not deserve to go to jury trial and are taken summarily before magistrates, or before sheriffs in Scotland.

I recognise that as the law stands, causing death by careless or inconsiderate driving does attract a sentence of imprisonment. On the other hand, causing a very serious life-changing injury, where perhaps the injured party has survived only by the skill of the doctors, does not. I can well understand why the Government see this as a gap which needs to be filled. But the situations to which the wording of this clause will apply extend well beyond those where one can reasonably say that there is a gap in the present law that needs to be filled. The words “careless” and “serious injury” can embrace many situations where to send the careless driver to prison would be wholly disproportionate. That is my concern.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

My Lords, of course I understand and to a certain extent accept that point; we have previously helpfully discussed it. What we try to do with the two-year maximum is find the appropriate level. One has to fit it between that six-month point and the five-year point for the reasons I have explained. Even if the noble Baroness does not accept the comparison with six years, it still obviously has to be below five years. The question is where we should put it. The central point is that maximum penalties are there for the worst imaginable case. The two years, therefore, is really for the worst imaginable case. I have sought to set out, in not too great length but clearly, why it is two years and, more importantly, what a maximum sentence means in this context and what the very limited circumstances are in which we would expect a maximum sentence to be imposed—not because the Government are telling the courts what to do but because, given the guidelines under which the courts already operate, it would be a very rare case to have a term of imprisonment or, certainly, a maximum term of two years. That is why I set it out earlier in the terms I did.

[Lord Hope of Craighead (CB)]

My Lords, I am grateful to all noble Lords who have spoken in this short debate, and in particular to the Minister for his careful attention to the points that I have raised and the carefully worded assurances that he has given us in the past few minutes.

The worst imaginable case is the reason why I accept that there is a gap that needs to be looked at and filled, and this offence obviously addresses that gap. But one is faced with the mental element that the noble Baroness, Lady Randerson, and the noble Lord, Lord Marks of Henley-on-Thames, have drawn attention to. It is that which makes it very difficult to accept that, even for the middle layer, there should be a sentence of imprisonment at all, in comparison with the many offences where there is a distinct mental element and a deliberate intention to flout the law—to disregard it, shrug your shoulders and go ahead anyway. It is not that kind of offence, which is why it is so important to signal, as the Minister has done, that it is only for the most extreme cases that a sentence of imprisonment for this kind of offence would really be appropriate.

Obviously, we must listen and wait for the Sentencing Council to set out the scales, and no doubt it will do so with great care. But, for the time being, what the Minister has said offers some reassurance, and I am extremely grateful for that. For those reasons, I beg leave to withdraw the amendment.

Amendment 60A withdrawn.

Police, Crime, Sentencing and Courts Bill

Lord Hope of Craighead Excerpts

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

[Baroness Jones of Moulsecoomb (GP)]

I do not want to re-enter an old argument but, in Committee, I was almost embarrassed when the Minister pointed out that I was completely wrong about mandatory minimum sentences. Not being a lawyer, I thought that I had made some sort of legal error, but apparently not. Clause 102 will lead to gross injustice for anyone who is convicted of these offences, except in exceptional circumstances. That is revealed by the very clever wording of the amendments tabled by the noble Lord, Lord Marks of Henley-on-Thames, which contrasts those exceptional circumstances with a much preferable

“contrary to the interests of justice”.

These amendments bring justice into play rather than pure, unmetered punishment. I and my noble friend will be supporting the amendments.

The deterrent effect of these minimum sentences would still be in play, but there would also be the freedom that, when justice requires, a person is not given one of these mandatory sentences—so the Government can still hold their “tough on crime” stance and even call this “crime fortnight” while justice is still served—although it would be good if they could admit their own crimes sometimes.

[Lord Hope of Craighead (CB)]

My Lords, I will say a few words in support of Amendment 82A dealing with short custodial sentences. The value of this amendment is that it places greater emphasis on alternative disposals, which fits in with what I thought was the Government’s policy of trying to rehabilitate offenders. Sending people to prison for a short period is counter- productive. One knows what happens in prisons. To send people for a short sentence is wasteful of public money. If there is an alternative to a custodial sentence, then it should be adopted. The proposal made in this amendment has a great deal behind it.

As for the other issues, speaking as a former judge I tend to support what the noble Lord, Lord Faulks, has said. If I was faced with the choice of words, I would find it easier to work with the Government’s wording than the wording proposed in the amendments.

[The Lord Bishop of Gloucester]

My Lords, I agree with much of what has been said. On Amendment 82A I reiterate what has been said, and I hope will be said later, about primary carers. We know the damage short sentences do to families. We also know that close to half of those leaving custody go on to reoffend within a year of their release, but two-thirds of those sentenced to less than 12 months go on to reoffend.

This is not pie in the sky; if we look at Germany, which performs better on virtually every metric including reoffending, they imprison a far smaller proportion of the population and sentencers have to make two assessments before sentencing. First, they have to show that a community sentence is inappropriate and, secondly, they have to say that a short sentence will suit the need better. I commend Amendment 82A.

--- Later in debate ---

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

My Lords, I am very grateful for the support that I have had for my Amendments 71 to 78 from Members of the House and for all the contributions to this important debate. I am also grateful to the Minister for his response. However, when one analyses it, what he was saying about discretion cannot survive a proper reading of what is meant by “exceptional circumstances”. Certainly, it is the case that authorities have analysed exceptional circumstances, including the Court of Appeal authority of Nancarrow that he mentioned.

Nevertheless, the nub of it is that “exceptional circumstances” means circumstances that are very unusual, and what the Minister did not address was my point that there are many situations which in general experience are commonplace, and the circumstances are common- place, but where it would nevertheless be unjust—contrary both to the judges and to any normal sense of justice—to impose the minimum sentence. Because the circumstances are not exceptional, the judge would be bound to impose that sentence.

In answer to the points of the noble Lord, Lord Faulks, of course it is the case that judges are daily addressed on the basis that they should take an exceptional course of leniency, and it is not surprising that, as a recorder, he has been asked to take that course many times. However, that does not mean that he has been asked to find that circumstances are exceptional. It is interesting that the test for the sentencing guidelines and departing from them is “contrary to the interests of justice”, and not a requirement that there should be exceptional circumstances.

On the matter of policy, I respectfully suggest that the answer to the Minister’s point was comprehensively expressed by the noble and learned Lord, Lord Garnier. He used the word “wise”. It may be that the Government are entitled to legislate in this way, but is it wise? The Minister said that there was a difference between “wise” and “constitutionally proper”. The point I am making is simply that, although it may be a matter of policy in the sense that the Government can have the policy and can legislate—as the noble and learned Lord, Lord Garnier, said, Parliament can do what it likes—the question is: is it bad policy? We say that it is bad policy because it forces judges to do what they would not otherwise do, having regard to the interests of justice.

In respect of the point made by the noble and learned Lord, Lord Hope, of course it is right that it may be easier to apply a test of exceptional circumstances, because the authorities are so clear, but the point about the interests of justice, as the noble and learned Lord, Lord Judge, picked up in Committee, is that sentencing decisions are difficult.

[Lord Hope of Craighead (CB)]

I am grateful to the noble Lord for giving way. My point is that I would be drawn into arguments with myself about policy in deciding whether to do what Parliament has asked me to do. I am afraid that, as a judge, the constitutional position is that I have to accept what Parliament has laid down. I do not like minimum sentences; they are a very blunt instrument, and I can think of cases where I would not want to be driven down that road. But that is not my position as a judge. I have to follow what Parliament has said, but I have leeway with the phrase which has been inserted in the Bill. That is my point.

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

My Lords, I understand that point. It is very rare that I disagree with the noble and learned Lord, but it is still the fact that what Parliament decides, judges must implement. If they decide that there is an exceptional circumstances test, that is far more limiting than an interests of justice test. That is my point and I will close on it—except to say that the default position under my amendment is to accept minimum sentences and simply to allow the judges to depart from those sentences where it is just to do so, having regard to all the circumstances. I do not believe that there has been any answer presented to that central position, on which I therefore wish to test the opinion of the House.

Police, Crime, Sentencing and Courts Bill

Lord Hope of Craighead Excerpts

Lords Hansard - Part 1 & Lords Hansard - part one & Report stage
Monday 10th January 2022 Lords Chamber

[Lord Pannick (CB)]

My Lords, I am very happy to stand up for womanhood and motherhood, but this amendment is very puzzling indeed. What it would mean is that even if a person born male has lived as a woman for 20 years, even if they have undergone sex reassignment surgery, even if they have a gender recognition certificate, and even if they are assessed as posing no risk whatever to other women, the Home Office would be obliged either to place them in a men’s prison or put them in specially segregated facilities. The former option of putting them in a men’s prison would be a disaster; it would obviously be enormously dangerous to such a person. Placing them in specially segregated facilities would be demeaning; it would fail to recognise what legislation in this country has recognised for the last at least 15 years: that people who happen to be born in the wrong sex deserve our compassion and deserve recognition of their position.

I suggest to the House that these issues are far better addressed, as they are at the moment, by Home Office policy that considers the circumstances of the individual case, rather than by broad amendments of this nature, whatever the good faith of those who put them forward.

[Lord Hope of Craighead (CB)]

My Lords, I warmly support what my noble friend Lord Pannick has just said. It is a great mistake, certainly at this stage in our affairs, to attempt to legislate in this matter. It may be that the prison estate will be big enough in years to come so that one can segregate by gender reassignment in special prisons of their own, but we are nowhere near that at the moment and the proper way to deal with this is to rely on the discretion that exists at present.

It is quite striking if you look at the wording of the amendment—it makes no distinction between whether we are talking about male or female prisoners, but very different situations arise depending on which of these two characteristics you are considering. It makes no distinction for the time that the person may have lived in that new assignment. It makes no distinction, either, for the extent of the surgery and the appearance of the person over time as the reassignment process takes place.

It is very difficult for those of us who, I assume, have not faced this to appreciate the intense emotional problem that people who believe that they have been born into the wrong sex undergo. It is a very emotional matter, fighting against characteristics you have acquired that you do not believe belong to you. The way you deal with it is to believe that you are actually of the sex—of the gender, I should say—that you think you should have been. That involves not only reconstruction of the body but a mentality designed entirely to live the new life, which you believe is the one you should have been given. It strikes me as very cruel, if I may use that expression, to treat these people as if they had not reassigned themselves. It is not a choice. They are driven by the characteristics they acquired which forced them into their decision.

I make these points just to emphasise that we are dealing here with a very difficult problem. The offender requires as much consideration on the grounds of safety and emotional distress as the people around them in the prison in which they are placed. Legislation is not the way to go, certainly not at the moment. I personally have complete confidence in the way that the prison authorities are dealing with this very difficult problem at the moment.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I welcome this amendment and I commend the noble Lord, Lord Blencathra, in particular, for doggedly sticking with this issue. I also thank the noble Lord, Lord Wolfson of Tredegar, for organising the MoJ teach-in, which I found very interesting and useful. I learned a lot and I listened hard.

I thought this amendment was a nuanced and sensitive way of dealing with all the objections raised by the MoJ at that teach-in, so I am rather disappointed that the Government have not accepted the proposal from the noble Lord, Lord Blencathra, which is a bespoke amendment that protects women’s single-sex spaces while sympathetically and practically managing any challenges faced by transwomen prisoners.

The amendment might be a modest proposal—I think it is—but noble Lords may be interested to hear that it has created a huge amount of interest outside this place over the last couple of days. People on Twitter might look at #KeepPrisonsSingleSex. It has been trending for the last 36 hours. Do look because the messages on there are what I am talking about, rather than the fact that it is trending.

I want to read a few tweets that could maybe help us understand why this amendment matters. One woman said:

“I find it quite baffling that this is even up for discussion! How did we get to the point where we need a debate to include legislation to prevent something so damaging to women?”


Another said:

“Women in UK prisons must not be locked in with convicted male criminals. This is an appalling failure of the duty of care the state has for female prisoners. Female prison staff must not be forced to search male prisoners. Let’s hope the House of Lords shows sense.”


I would like to think the House of Lords would as well, but maybe not. The final one I want to read out says:

“I’ve been to prison and I’m telling you now that for some women it’s their only safe space, due to abuse on the outside. Allowing anyone who claims to feel like a woman to be put in that safe space is wrong! Women, criminal or not deserve to feel safe.”


I say hear, hear to that.

Police, Crime, Sentencing and Courts Bill

Lord Hope of Craighead Excerpts

Report stage
Wednesday 12th January 2022 Lords Chamber

[Lord Pannick (CB)]

My Lords, I do not share the concerns that have just been expressed. It seems to me that Amendment 104E makes it very clear what the mischief is; it is making it a condition of access to accommodation that sexual services are provided. We all know what that means, and juries will know what it means. It is a real mischief and it needs to be addressed. If the noble Lord, Lord Ponsonby, divides the House on Amendments 104E and 104F, he will certainly have my support.

However, I have concerns about the drafting of Amendment 104F. My concern is that in several places it uses the concept of “arranging” an offence—not simply facilitating the offence but arranging or facilitating it. I do not really understand what the difference is and what is added by “arranging an offence”. I am not myself aware of other contexts where that concept has been used. It is a very vague concept and, I think, a rather undesirable one.

I am also troubled by proposed new subsection (3)(c) of Amendment 104F, which makes it an offence if a publisher is informed that its actions

“had enabled the arrangement of or facilitated an offence”

and it then

“failed to take remedial action within a reasonable time.”

All that is extremely unclear and uncertain as to the ingredients of the offence. No doubt that can be dealt with at Third Reading if others share my view. I emphasise that I support the amendments, but I draw attention to those matters that cause me concern.

[Lord Hope of Craighead (CB)]

My Lords, I have one point to add to what has been said by my noble friend Lord Pannick. The word “publisher” troubles me a bit. It is not defined in the amendment, and I am not quite sure what that word is directed to. Is it somebody in business as a publisher or somebody who simply publishes something, describing the activity rather than the trade? The amendment would be improved if something was said in it as to what exactly is meant by the word “publisher”.

[Baroness Kennedy of Cradley (Non-Afl)]

My Lords, I speak briefly in support of Amendments 104E and 104F, in the name of my noble friend Lord Ponsonby of Shulbrede. In doing so, I declare my interest as director of Generation Rent.

Predators online attempt to coerce men and women to exchange sex for a home by exploiting their financial vulnerabilities. They have used the economic effects of the pandemic as a marketing technique. This is already a crime, and it is not a new crime, but there has only ever been one charge for this offence, and that was in January last year. However, back in 2016, Shelter found that 8% of women had been offered a sexual arrangement. Two years later, its polling estimated that 250,000 women had been asked for sexual favours in exchange for free or discounted rent, and its more recent research showed that 30,000 women in the UK were propositioned with such an arrangement between the start of the pandemic in March 2020 and January 2021.

This is a crime that goes on, openly and explicitly, through adverts on online platforms. Despite the adverts being clear in their intention, they go unchecked, are placed without consequence and are largely ignored by law enforcement and the online platform providers. The fact that there has only ever been one charge for this crime shows how inadequate the law and CPS guidance are in this area.

The victims of this exploitation have been failed. As my noble friend said, for a victim to get justice, they need to be defined as a prostitute for a criminal case to progress, which is a huge deterrent that has to be changed. The online platforms—that is what I believe is meant by “publisher”—allow this crime to be facilitated, and they must have action taken against them. That is why I very much support the amendments tabled by my noble friend.

In closing, I pay tribute to the honourable Member for Hove in the other place for his campaigning on this issue, and the many journalists who have kept this issue on the agenda, including the team at ITV, whose research I understand helped to lead to the one charge for this crime that there has ever been. No one should ever be forced by coercion or circumstance to exchange sex for her home. There is a housing emergency in this country. It continues to hit new lows—so low that sexual predators can deliberately take advantage of people’s desperation to find a home. For me, Amendments 104E and 104F are an opportunity to protect some of the country’s most vulnerable renters.

--- Later in debate ---

[Lord Pannick (CB)]

My Lords, I pay tribute to the noble Baroness, Lady Coussins, for pursuing this important matter, and to the Minister for his engagement on a number of occasions with those of us who support the noble Baroness and are concerned about this. During those discussions, I expressed the view that it is striking that there is such a radical difference of view between the noble Baroness, Lady Coussins, with her enormous expertise in this area, and civil servants as to how the system is working in practice. I therefore suggested to the Minister that one way forward in this important area would be for him to agree that there should be an independent assessment—an independent inquiry—of an outfacing nature that can rely on the expertise of the noble Baroness, Lady Coussins, and others in order to inform the department as to the way forward. That seems to be a constructive way forward, and I very much hope that the Minister will be able to say that the department is prepared to do that.

[Lord Hope of Craighead (CB)]

My Lords, I too pay tribute to my noble friend Lady Coussins for the determination with which she has pursued this argument. As a user of the court, it is crucial to have complete confidence in the interpreter. Most of us do not have the complete gift of language—which perhaps my noble friend has—over a wide range of languages. You have to rely on the interpreter; confidence in what the interpreter is doing is crucial to the way the proceedings are conducted, so the highest standards should be aimed for. I must say, I am surprised that it is taking so long for the advice my noble friend has offered to be accepted and put into practice.