Victims and Courts Bill

Lord Russell of Liverpool Excerpts

Committee stage
Monday 9th February 2026 Lords Chamber

[Lord Meston (CB)]

My Lords, I have four amendments in this group, three of which, like that just proposed powerfully by the noble Baroness, Lady Brinton, seek to explore the thinking behind the four-year minimum prison sentence required by Clause 3 to trigger the duty of the Crown Court to make a prohibited steps order to restrict the offender’s parental responsibility. My Amendments 15 and 19 would lower the minimum sentence required to one of more than six months.

Before I develop the argument a little further, I will comment on a couple of points made by the noble Baroness. Much of what she said, I entirely agree with, but please let us not talk about parental rights. The central reform of the Children Act 1989 was to substitute for the concept of parental rights the concept of parental responsibility, which is why it appears in the Bill and has been part of our law for a long time. As I have already said, it replaced the reference to rights as determining who had authority over aspects of the child’s life or upbringing. The other point I am afraid I take issue with is her suggestion that, in too many cases, the court sees matters only through the eyes of the parent who is seeking to assert his rights or responsibilities. That, I suggest, is not correct, and it is certainly not my experience of how the family courts work.

Returning to the substance of these amendments, it is clearly difficult to determine where to draw the line in such cases, bearing in mind that a convicted person whose sentence does not cross that line is still quite liable to have any parental responsibility restricted by the family court if it cannot be done in the Crown Court. During debates in another place, the logic of the four-year minimum sentence was questioned. The Minister there argued that the four-year threshold provided a predetermined marker of seriousness for cases in which the restriction of parental responsibility by the Crown Court is to happen automatically.

The Minister said that the Government wanted to minimise the strain placed on the family court. There is force in those points at a practical level. As I suggested at Second Reading, one reason to draw the line at four years is to make best use of the resources, expertise and powers of both the criminal and the family court respectively, without overburdening either. However, one disadvantage of leaving too many of these cases to the family court is that it would deprive the mother and other family members of the benefit of the automatic suspension of parental responsibility, which the Bill provides. Indeed, it would require those who want to restrict parental responsibility to make their own applications to the family court, possibly without legal assistance, as the noble Baroness has indicated.

It is possible, by use of Ministry of Justice statistics for 2023, to get some approximation of the cases involved, which would give some idea of the number of offenders and the number of children who would be affected. In this respect, I am indebted to Amanda Newby, associate professor at Northumbria University, for her research and expert assistance on this and other amendments. In 2023, in England and Wales, there were 1,924 cases of serious sexual abuse, where an immediate prison sentence of between four and 15 years was imposed, in addition to which there were 44 sentences of life imprisonment. In the same year, there were some 1,093 cases involving serious child sexual abuse, where an immediate prison sentence of more than six months and less than four years was imposed. Only 59 such offenders were sentenced to six months or less.

Those statistics all involve adult offenders. It is clearly not possible to ascertain how many of those held parental responsibility for a child at the time of sentencing, but I suggest that it could have been considerably lower. On that basis, moving the threshold down to more than six months’ imprisonment would or could increase the number of potential cases by approximately 1,000 annually—although I repeat that many of those probably would not hold parental responsibility. That likely increase does show that a significant number of children would not be protected under the Bill if the threshold is not lowered. That is indeed an argument for lowering the threshold, as I hope I have indicated.

Amendment 27, in my name, perhaps illustrates some of the difficulties in drawing lines. The offence of sexual communication with a child under Section 15A of the 2003 Act is not covered by the Bill as presently drafted, because the maximum sentence for that offence is two years. That was an offence added in 2015 to the 2003 Act to cover a specific form of sexually motivated grooming, and it might now be thought that it should be covered by the provisions of this Bill. Essentially, it should be accepted that one real difficulty is that the Crown Court, under the Bill, is going to be required to make orders under the Children Act for which the family court is generally the more appropriate forum. Further, the Bill does not contain any provision for mandatory review by the family court, as was provided under Section 18 of the Victims and Prisoners Act, known as Jade’s law. In the family court, the other parent would have the status of a party and could be represented, and that court would have access to the relevant family history and to evidence in the form of professional welfare and other reports if required. In other words, quite frankly, there are compelling arguments either way.

Amendment 34 is in my name and has the support of the noble Baroness, Lady Brinton. It does not concern sexual offences but, rather, seeks to extend what is now known as Jade’s law, which was enacted under the Victims and Prisoners Act 2024. As the noble Baroness reminded us, Section 18 restricts parental responsibility where one parent kills the other and is convicted of murder or a specific category of manslaughter. At the suggestion of the Victims’ Commissioner, we seek to amend that provision to include the attempted murder by one parent of the other.

I do not recall that being suggested when the 2024 Act passed through Parliament—the omission of attempted murder may have been an oversight—but there was some caution when, at various stages, suggestions of extending Jade’s law to other offences of violence were ventilated. Be that as it may, I submit that it is clearly appropriate to include attempted murder involving the most extreme form of non-fatal assault. To do so would relieve the victim from the obligation to seek the perpetrator’s agreement on decisions concerning the child and, if agreement is not forthcoming, from having to apply to the court.

The Victims’ Commissioner has become aware of the concerns of survivors of attempted murder when the offender has retained parental responsibility over their children. Without giving details, I had to deal with a case where the convicted parent used his status to obstruct the other parent, clearly motivated only by a desire for revenge, causing the other parent further distress and expense, as well as an inescapable fear of what he might try to do when released from prison. People in that position should be relieved and shielded from having to go to court unless absolutely necessary to do so.

Finally, I join the noble Baroness in mentioning the commencement of Section 18—Jade’s law. It is not retrospective and has yet to be brought into force, so the reality is that nobody has yet benefited from it. Can the Minister say when it will be put into effect?

I do not want to trespass on arguments to be advanced on other amendments, but I share the curiosity about the provisions in the Bill covering what would happen in the event of an acquittal on appeal or when a sentence is reduced on appeal. To that I add the question of whether prohibited steps could be made where a sentence is increased on appeal or under the unduly lenient sentence scheme to one of more than four years.

[Lord Russell of Liverpool (CB)]

My Lords, I will speak very briefly to support the noble Lord, Lord Meston, and the noble Baroness, Lady Brinton, on Amendment 34. As they mentioned, the Victims’ Commissioner has been approached by a variety of individuals who survived attempted murder by their other half or partner. In those cases, they face a dilemma. In some cases, the difference between being murdered or not is a matter of an ambulance arriving two minutes earlier and managing to stop a murder attempt, whereas if it arrived two minutes later that person might have died. Alternatively, it might be a matter of a neighbour hearing what was going on and making a telephone call so that the authorities arrive in time. It is a very narrow difference, frankly, as to whether somebody ends up dead or injured but alive.

In some of those instances, the perpetrator, who has gone to prison, retains parental responsibility but may not know that. The surviving partner has a dilemma: if they bring it to the attention of the partner who is in prison and he is unaware of those rights, he may be tempted to try to use them to disrupt the life of the surviving partner. I do not think that anybody would wish that to happen.

In the instance that a survivor feels strongly enough that they want to try to go through the courts to have the parental responsibility of the person who tried to kill them stripped away, the onus is on the survivor to go through the family courts. That can be quite a lengthy and complicated process. It is often made more difficult because the quality and flow of relevant information between the criminal court, which sends the attempted murderer to prison, and the family court is not always as open and as clear as it might be.

For all those reasons, I hope that, when she comes to reply, the Minister can clarify the Government’s view on this and, in particular, why commencement of the original Jade’s law seems to have been delayed. What is holding it up? How quickly can we expect it to be put into operation?

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[Lord Keen of Elie (Con)]

My Lords, I am grateful to all noble Lords who have tabled amendments in this group which concern the operation of Clauses 6 and 7 and the scope and operation of the victim contact scheme. I turn first to Amendment 42 in the name of the noble Baroness, Lady Brinton. I recognise the intention behind this amendment and the principle that underpins it: that victims whose close family members have been murdered, killed unlawfully or subjected to infanticide abroad should not find themselves falling between the cracks of the victims’ code simply because the offence occurred outside the United Kingdom. There is a strong case for ensuring that any victim should receive clear information and appropriate support on how to engage with the criminal justice system. The amendment seeks to give effect to that principle by requiring an appendix to the victims’ code setting out how it applies in such circumstances.

That said, it is also right to acknowledge that this amendment raises practical and operational questions that would need careful consideration. These include questions about jurisdiction, the extent to which criminal justice processes are engaged domestically, and how responsibilities would be allocated between domestic agencies and those overseas. I therefore look to the Minister to address how the Government would envisage this operating in practice while recognising and engaging with the important principle that the amendment seeks to advance.

Amendments 47A and 47B, tabled by the noble Lord, Lord Russell, extend the definition of “victim” to include those who have experienced persistent antisocial behaviour meeting the statutory threshold for an antisocial behaviour case review. They also create a victim identifier linked to compliance with the victims’ code across criminal justice agencies. Both proposals are ideas that I am sure will instigate interesting debate; I look forward to hearing the noble Lord expand on them, and the Government’s response.

Amendments 56 and 57 tabled by the noble Lord, Lord Ponsonby—which may or may not be spoken to—concern transparency and accountability in decisions taken by hospital managers not to disclose information requested under Sections 44F or 44K. Clearly, if hospital managers are to be entrusted with the discretion to withhold information in cases that may directly affect victim safety, it is entirely reasonable that there should be clear written reasons for such decisions and a meaningful route to appeal. Transparency in decision-making is essential, not only for victims but for other parties, such as the Probation Service, which are tasked with managing risks.

I turn to Amendments 36 and 37 in my name. Amendment 36 is a technical amendment that adds the National Crime Agency to the list of relevant bodies to which Clause 6 does not apply. Given the National Crime Agency’s distinct operational role and intelligence-handling functions, it may be appropriate that it be expressly included in that provision. I hope the Government will see this amendment as a sensible clarification rather than as a point of contention.

Amendment 37 would require the Secretary of State to extend the victim contact scheme to certain categories of victim who are currently excluded from it—victims of offenders sentenced to less than 12 months for violent and sexual offences; victims of coercive or controlling behaviour, stalking or harassment; and bereaved families in cases of manslaughter or death by dangerous driving. It would also require information to be communicated in a timely manner and for annual data to be published on the scheme’s uptake and accessibility.

The importance of this amendment has only been heightened by recent legislative developments. The Sentencing Bill, which has now passed, represented a marked shift in sentencing policy, particularly through the automatic and blanket presumption against short custodial sentences, regardless of offence type. During the passage of that legislation, particularly in debate in this House, a number of noble Lords repeatedly raised the consequences for victims. Although the Government may respond by saying that in exceptional circumstances this presumption may be overturned, the reality is rather clearer. An increasing number of offenders convicted of violent and sexual offences will now serve their sentences in the community, rather than in custody.

From the victim’s perspective, that is not an abstract policy choice. It has immediate and practical consequences for their perception of justice being served, for their sense of safety, for their ability to plan their lives and for their need to receive appropriate information. Under the current framework, many of these victims are excluded from the victim contact scheme because the custodial threshold is not met. That is now, I suggest, a glaring inconsistency in the light of the Government’s Sentencing Act. If anything, victims whose offenders are serving sentences in the community have a greater need for timely, accurate and trauma-informed information, not a lesser one. Further, without timeliness the scheme risks becoming meaningless. Information provided late is often information too late to be of use, and, without transparencies, such as through the publication of annual data on uptake and accessibility, there can be no meaningful accountability for offenders or for the Government.

We now live in a sentencing landscape that places a far greater reliance on community supervision. The Government have said that they expect to more or less double the number of people being tagged rather than incarcerated. The need for transparency and accurate data has never been more pressing. Amendment 37 insists that, where the state chooses to sentence offenders in the community, it must accept the corresponding responsibility to support and protect victims properly. In the absence of custody, robust victim engagement is really not an option; it is essential. I therefore urge the Government to engage seriously with this amendment and, if they are minded to resist it, explain how victims are to be adequately protected in a system that is going to leave an increasing number of offenders in the community. I beg to move.

[Lord Russell of Liverpool (CB)]

My Lords, I will speak to Amendment 42, in the name of the noble Baroness, Lady Brinton, supported by the noble Baroness, Lady Finlay; to the two amendments in my name, Amendments 47A and 47B—I am grateful to the noble Baroness, Lady Brinton, for adding her name to them; and to Amendments 55, 56 and 57, on which the noble Lord, Lord Ponsonby, may speak to us by some supernatural means. I am not quite sure, but the noble Baroness, Lady Brinton, and I will try to cover it.

I point out that what all these amendments have in common is that they have been laid with the active engagement and support of the Victims’ Commissioner, Claire Waxman. The Minister mentioned that she knows and has a high regard for her. Rather than going on at great length about each amendment, although I am sure that your Lordships are dying to hear about them, I suspect that it would be better to have follow-up meetings involving Claire Waxman to go into the detail as to why she feels, and we feel, that these amendments are important enough to raise in Committee.

On bereaved victims of murder abroad, as in Amendment 42, we covered this ground in previous legislation when we attempted to get it into a Bill. My noble friend Lady Finlay will be able to go into much more detail about this but, in essence, we are dealing with a slight anomaly in the way that victims are treated. On average per annum, between 80 and 90 individuals who are UK citizens are murdered while they are abroad. At the moment, the experience of their families when those unfortunate incidents happen ranges from quite good to absolutely appalling. That is because there is no consistency in the way they are treated.

The Government have made attempts to get their house in order on what happens within the United Kingdom’s jurisdiction. Where we seem to have an issue is in getting the FCDO to apply a form of guidance, and above all training, across its key consulates in the areas where these incidents take place to ensure that those consulates are properly equipped, if and when such a tragedy appears, to deal with it effectively and consistently. The experience from the victims whose loved ones have been murdered abroad is that, in some cases, the consulates are absolutely brilliant and go out of their way to be helpful, while in other instances the victim truly is left entirely on their own. In particular, if this has happened when the partner of the person who has been murdered is abroad, they may find no help whatever and not be familiar with the language of that country. You can imagine the complexity and agony of trying to deal with all of that, on top of the shock of having had somebody very close to you murdered. However, my noble friend will go into that in more detail.

What Amendments 47A and 47B have in common is that for certain victims of antisocial behaviour, when that behaviour really is persistent—it often conforms to an escalating pattern—and has a deep effect on the victim, there is not consistency at the moment in the way that is dealt with. Amendment 47A tries to ensure that the authorities are more effective in identifying that pattern of behaviour and are able to join the dots, put them together and recognise that the behaviour has triggered a threshold at which proper support and access to victim services should be allowed.

Again, Amendment 47B is about joining up the dots. The way in which antisocial behaviour is dealt with is that it might come to the attention of the police, or it might come to the attention of a local authority or a housing association. There is no consistent way of that information, first, being recorded in a consistent and helpful manner, and, secondly, being communicated across those different boundaries in a way that enables whichever of those three jurisdictions is looking at the pattern of behaviour to pull the evidence together that it needs to understand exactly what has been going on. This is a request for a unique identifier for each victim which would, I hope, be the start of a process to enable that information to be channelled in a more consistent and co-ordinated manner. That would obviously be helpful to the victims, but also extremely helpful to whichever authority is trying to identify just how severe that pattern of antisocial behaviour is, and whether the effect it is having on the subject—the victim—is sufficient for it to trigger comprehensive wraparound support.

Lastly, I will deal with the three amendments that I think the noble Baroness, Lady Brinton, will deal with in more detail. They concern where somebody in one’s family has been murdered by an individual who is identified as mentally disordered and who is then detained because of their mental disorder. The ability of the victims to get access to the sort of information which they can get from the Prison Service and the courts is completely different from what is able to be accessed from the hospital system. Again, some hospitals and hospital managers go out of their way to be understanding and helpful, and try to give the victims whatever succour and information they can. Others refuse point blank. They say that a variety of laws and processes prevent them doing that and that they are not at liberty to do it. All that we and the Victims’ Commissioner are asking is to look at this closely.

Julian Hendy, the founder of an organisation called Hundred Families, is very involved in this; he can give chapter, book and verse. First, we need to establish just how much of a problem this is, perhaps through meetings. Secondly, what are the different ways in which we might do something about it? Thirdly, how complicated is that: does it need to be in primary legislation, or are there other ways of doing it?

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[Baroness Levitt (Lab)]

I am grateful to the noble Baroness for raising this point. Our current position is that we do not believe that that is necessary, but I am happy to meet her and get her to try to persuade me why I am wrong and she is right—there is my challenge to the noble Baronesses, Lady Brinton and Lady Finlay.

[Lord Russell of Liverpool (CB)]

The FCDO has a duty of care and a responsibility for UK citizens when they are in whichever country. It does not seem too bizarre or extreme to hope that it would accept a degree of responsibility for the very small number of unfortunate victims who, for whatever reason, are unlawfully killed in the course of a year. For the FCDO to accept that that is part of its responsibility—a very small part, albeit an important one—and to prepare itself thoroughly enough to be able to fulfil that duty in a professional, proper and sensitive way in the unhappy event that it is required does not seem too much to ask.

[Baroness Levitt (Lab)]

The noble Lord, Lord Russell, puts it very persuasively and it is extremely tempting, particularly given that I do not speak for the FCDO, to say that it sounds utterly reasonable. However, I am sure he will understand why I cannot give that kind of commitment from the Dispatch Box, but I can commit to meeting and discussing this further.

Victims and Courts Bill

Lord Russell of Liverpool Excerpts

Committee stage
Monday 9th February 2026 Lords Chamber

[Lord Russell of Liverpool (CB)]

My Lords, I also put my name to Amendment 46, which was originally laid by Sarah Champion in the Commons; the noble Baroness, Lady Brinton, has spoken to it comprehensively, so I will not add anything to that. Instead, I will speak to Amendment 47 in my name, which, in many ways, is very closely related. Amendment 46 came through discussions with Claire Waxman, the Victims’ Commissioner; Amendment 47 comes through working with another organisation, the Marie Collins Foundation in Northern Ireland, which specifically works with child sex abuse victims who have been abused online.

Amendment 47 is an attempt to find, in essence, a clearer definition of what is harmful to CSA victims and, in a sense, to give the Government breathing space while they decide whether they need to go further and be clearer. Under the current CICS, a crime is considered violent only if it involves physical injury, the threat of immediate violence or a non-consensual sexual assault. To a large extent, that excludes online child sexual abuse.

There was a court case in 2023, where an individual called “RN” went to court against the CICA. The Court of Appeal in this case confirmed that online grooming may fall within the scheme where threats cause a child to fear immediate physical violence even if the threats are made remotely. However, the court also said that many online cases would still fall outside the scheme and that this can produce outcomes that are counterintuitive and unjust. It also made it clear—this is the reason for the amendment—that any broader clarification of coverage is a matter for Parliament and not for judicial interpretation.

What we are trying to achieve is to recognise exactly what this type of abuse is. It commonly consists of a combination of blackmail, coercion, threats and domination, which are, in effect, a combination of emotional and psychological abuse. It involves compelled actions, such as the creation and sharing of sexual images, livestreamed sexual activity, or other sexual acts directed by an offender against the child—all of which is online. It results in sustained fear, loss of autonomy and erosion of individual agency. It can also lead to long-term psychological harm, including trauma-related conditions such as post-traumatic stress disorder, anxiety, depression and so on.

What we are trying to achieve is, first, to capture online-only child sex abuse cases where the nature of abuse is such that the conduct meets the scheme’s existing criteria for a crime of violence. Secondly, it seeks to operate within the existing legal framework by clarifying how violence is understood, rather than by redefining CSA or injury. Thirdly, it proposes to support consistent and workable decision-making by the CICA on online-only CSA cases, which is not the case at the moment. Fourthly, it would avoid creating any hierarchy of abuse by grounding eligibility in established scheme principles. Fifthly, and lastly, it would provide an interim pragmatic response, pending wider consideration of scheme reform.

I hope that the Government will look at the evidence, take on board what is happening and, in particular, as is often the case with online abuse, look at the scale at which this is increasing year on year, to see whether it is something that needs to be looked at more clearly and recognised in law for the harm that it is doing.

[Lord Sandhurst (Con)]

My Lords, I thank my noble and learned friend Lord Garnier, the noble Baroness, Lady Brinton, and the noble Lord, Lord Russell of Liverpool, for bringing forward their amendments and helping to shape what has been a valuable debate about the issue of just compensation for victims.

Amendment 40, in the name of my noble and learned friend Lord Garnier, raises an important concern about how the victims of fraud, bribery and money laundering offences can be better compensated both domestically and abroad. Indeed, I have heard his arguments on more than one occasion before and never failed to be persuaded by them.

These crimes do not just inflict monetary loss on victims; they often involve sophisticated deception. They can cause significant psychological distress, emotional trauma and lasting insecurity. More widely, they undermine trust in our society, and so deserve the Government’s attention. The Government must look carefully at my noble and learned friend’s suggestions for a review. It could be important and beneficial for the City of London, as a centre of finance of worldwide renown. If we can take the lead on this, that would be an encouragement to people to do business here.

This brings me to Amendment 67, in my name. I should say that a gremlin came in here—and I am not blaming the typist. Where it says:

“Sentencing guidelines on court fines”,


it should of course say compensation orders. The amendment is intended to correct an imbalance for victims. Its purpose is clear: to ensure that victims are compensated properly, according to the actual value of items stolen. This principle would apply in cases of fraud, burglary or theft, and in any other crime which has resulted in a victim suffering financial loss. The responsibility for repayment should be put squarely on the offender through the issuing of compensation orders. It is only right and just that offenders pay back the value of what they have stolen to their victims. There should be a direct link, so that offenders fully face up to the consequences of their actions in a real and logical way.

This measure is simply proportionate. At present, offenders may not be made even to begin to compensate for the damage inflicted, which only adds further insult to injury. To correct this imbalance, the amendment would require the Sentencing Council to revise the relevant sentencing guidelines within 18 months of the Bill receiving Royal Assent. This would lead to a more consistent approach across cases, and sentencing would recognise and account for the amount actually taken or lost. Justice for victims should be material, not merely symbolic. That would help to strengthen public confidence in our courts. We urge the Minister to give serious consideration to the amendment.

Amendment 46, in the name of the noble Baroness, Lady Brinton, and Amendment 47, in the name of the noble Lord, Lord Russell of Liverpool, concern the criminal injuries compensation scheme. The former seeks to broaden its eligibility to all victims of child abuse; the latter aims to bring online-only child sexual abuse into the scope of recognition of the scheme. It is important that the scheme keeps apace with the evolving landscape in which criminal activity now takes place. All victims must be properly supported, with access to the appropriate mechanisms for compensation and redress. I look forward to hearing the response of the Minister, on how the scheme can be updated.

Victims and Courts Bill

Lord Russell of Liverpool Excerpts

Committee stage
Wednesday 11th February 2026 Lords Chamber

[Baroness Lawrence of Clarendon (Lab)]

My Lords, I declare my interest as an anti-racism adviser to the Labour leadership. I added my name to Amendment 62 tabled by my noble friend Lady Chakrabarti. I hope noble Lords understand why I have done this, given my years of campaigning for race equality, in the criminal justice space in particular. Our amendment is essential but also modest and proportionate. We do not say that creative expression can never be admissible in criminal trials. We just say that there must be a strict rule against racial prejudice in particular. It is not new in our system to try to ensure that prejudice associated with criminal evidence should not outweigh its probative value, nor, unfortunately, is it new to find the police and the prosecution system working against people of colour when they should be protecting everyone from all our diverse communities equally. As my noble friend said, we would not dream of prosecuting a middle-class, middle-aged, white person for crimes on the basis of them writing or enjoying crime fiction. Why then are we happily prosecuting young Black men and boys on the basis of rap and drill music? I think we all know why. We talk about equality before the law, but 28 years after the Lawrence inquiry, we know the principle is still not a reality.

My noble friend Lady Chakrabarti mentioned a young Mancunian man, a model student, a head boy aspiring to be a law student who had an unconditional offer to study law at the University of Birmingham—until the police and the prosecutors wrongly mistook him for a youngster in a nine-second video in which drill music was playing in the background. Through reliance on this ridiculous evidence, he was convicted of violent conspiracy. His conviction was overturned, but only after he served three years in prison. I urge the Committee to support our amendment and my noble friends in the Government to accept it.

[Lord Russell of Liverpool (CB)]

My Lords, I rise briefly to speak to Amendment 61. In doing a little background on this, I looked at the Law Society’s response to the MoJ call for evidence, which it produced last April. I wish to read two brief excerpts, because I think they are both particularly pertinent to what we are talking about. The first says:

“But given the increasing complexity of computational systems, computers should not be assumed to be operating correctly. Instead”—


this is important, because this is what other jurisdictions outside the UK systematically do—

“it should be evidenced and demonstrated through assurance, regular review, and disclosure of the technical standards applied by the system”.

That is what happens in Germany. That is what happens in France. That is what mostly happens in the United States.

Secondly, returning to the issue of artificial intelligence, the Law Society has been thinking about this and is clearly very worried about it. I quote again:

“Careful consideration needs to be given to emerging AI technologies that overlap with but go beyond the scope of this call for evidence. For AI, an additional layer of certification for meeting internationally recognised standards is important to ensure accountability and transparency, especially if they were designed and developed”—


which they mostly are—

“outside of the jurisdiction … Attention must be given to the ability for domestic regulation and requirements to be adhered to for computer systems and AI tools that are built outside of the jurisdiction”.

[Baroness Hamwee (LD)]

My Lords, it is six years since the noble Baroness, Lady Chakrabarti, and I were among the members of a newly formed committee that looked at—I do not think I have got the title quite right—advanced technology in the justice system. We were concerned, among other things, about the need for a human in the loop and whether it was possible to have a human in the loop. We were given very firm assurances by two Home Secretaries, which I do not think convinced the committee at all.

We were also concerned about the attitude, “X must be right because the computer says so”. Have we actually moved on from that? I do not think so. On that basis —and was it my noble friend who added facial recognition into the mix?—we support the amendment.

I am deliberately going fairly fast because I do not need to add a whole lot to what has already been said. On Amendment 62, there have been a number of occasions when I have heard a rapper and realised how very clever the work was. I really admired what I heard. Then I thought back to the occasion decades ago when my father started criticising my musical taste and calling it Simon and Godawful. Tastes change; generations move on and develop. I cannot speak to the detailed content of all rap and drill, but I think we are in danger of dismissing the importance of this music to the generation that produces it.

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[Baroness Levitt (Lab)]

That is exactly what the Government are evaluating. I cannot go any further than that today, but those are all the things that are being considered. I cannot go any further than to say that I am listening.

I turn to Amendment 62, in the names of my noble friends Lady Chakrabarti and Lady Lawrence. I am very aware of these issues, particularly in relation to rap and drill. I knew about this amendment, but in the course of my practice and when I was a judge I have been to a number of lectures on the subject and read a number of articles, including some by Keir Monteith, King’s Counsel, who I see is sitting below the Bar today.

The question here, on the use of this material, is one of relevance. Like the noble and learned Lord, Lord Thomas, I do not want to go into a boring exegesis of when evidence is admissible and when it is not. The real concern here is to make sure that if—and it is a big if—this evidence is to be used then it has proper probative value, on the basis that it goes further than either that this defendant is a bad person because they like rap and drill music or, even worse, some spurious and crude racial stereotypes. Judges have a duty to ensure that only evidence meeting these standards is adduced and they should exclude any evidence that does not meet the required threshold—that is not a matter of discretion. However, I understand the concerns about the fact that that has not happened in all cases.

It is axiomatic to say that creative and artistic expression is of itself not a crime, and it is rare that it would feature in the evidence of a prosecution unless it inherently involved criminal activity, such as damaging another person’s property with graffiti or drawing sexual images of children. As for musical expression, the Crown Prosecution Service is clear that creating or listening to music is not a crime, but it says that, on occasion, it has encountered cases where, upon investigation into a violent offence, it became clear that drill and rap music had been used in the build-up to encourage or incite violence or to reveal information about a crime that only the attackers would know. These instances are rare and, importantly, are already subject to rigorous scrutiny under existing evidential rules. However, I am aware of the disquiet, and we understand the community concerns.

I take the point made by my noble friend Lady Lawrence. I am a lover of crime fiction but I do not think anyone is ever going to use that in a prosecution against me—well, I hope they do not. She makes a valid point.

The Crown Prosecution Service is actively consulting on this matter through a public consultation, seeking views on whether formal prosecution guidance should be issued regarding the use of musical expression evidence. We want to ensure that any future approach is clear and informed by a wide range of perspectives.

It is the Government’s view that, as currently drafted, the amendment would be unduly restrictive and would, in effect, frustrate the ability of the Crown to adduce relevant and probative evidence before the court, with the potential consequences of frustrating justice for victims in some serious cases. The Government intend to await the outcome of the CPS consultation and announce next steps in due course. I invite all noble Lords not to press their amendments.

[Lord Russell of Liverpool (CB)]

My Lords, I did not speak to Amendment 62 when I briefly got up but I did some research on it. I think it is usually the case in a particular area of law that, where you have a body of experts in particular areas of evidence, it is not uncommon for those experts to be used by both the prosecution and the defence. In doing my research on Amendment 62, I found that that is not the case. The so-called experts who are used by the prosecution are solely used by the prosecution, while the experts who are used by the defence—who would be able to talk knowledgably in the sort of detail that the noble Lord, Lord Bailey, was able to give us—are used only by the defence. That in itself tells you that there is something wrong.

[Baroness Levitt (Lab)]

I do not disagree with the noble Lord. I have already made it clear that I understand the disquiet, the concerns about it and the very real possibility for something that is in fact crude racial stereotyping to look as though it is evidence. That is why we need to await the outcome of the CPS consultation.

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Moved by

[Lord Russell of Liverpool]

63: After Clause 12, insert the following new Clause—
“Discontinuance of proceedings: victims' right to review(1) The Prosecution of Offences Act 1985 is amended as follows.(2) In section 23A (Discontinuance of proceedings after accused has been sent for trial), subsection (2), omit “indictment is preferred” and insert “start of the trial on indictment, as defined in section 22(11A) of this Act.””Member's explanatory statement
This amendment would extend the period a case can be discontinued in the Crown Court, to bring it in line with the Magistrates Court. This would mean that the CPS could discontinue a case at the Crown Court with the option to reopen it following a successful VRR, if it concludes that it made an error stopping the prosecution.

[Lord Russell of Liverpool (CB)]

My Lords, I start by addressing the Minister and saying, “No pressure”. I think this amendment is particularly pertinent to her because it talks directly about the Crown Prosecution Service and some of the things it does and does not do. She will know more, I suspect, than anybody else in the Committee about the detail of what I am about to address.

The purpose of the amendment is to enable the Crown Prosecution Service to discontinue proceedings in the Crown Court up until the trial, bringing it in line with its opportunity to do so in the magistrates’ court. Importantly, this change would mean that proceedings could be ended at a later point and still reinstated where it was determined that the prosecution was ended in error. For victims of crime, this is an important safeguard which would enable them to meaningfully exercise their right to challenge Crown Prosecution Service decision-making.

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[Baroness Levitt (Lab)]

My Lords, I will start with a little trip down memory lane. In either 2010 or 2011, the noble and learned Lord, Lord Thomas, when sitting in the Court of Appeal, heard a case called Killick. That was a case where prosecution had been restarted and, as part of his judgment in relation to it, the noble and learned Lord said that the Crown Prosecution Service needed to come up with a system that would allow victims to challenge a decision not to prosecute, without them having to bring judicial review proceedings. As he may remember, I was the prosecutor who remade the decision to charge in that case and, as a result, the Crown Prosecution Service—under a certain Director of Public Prosecutions, who may be known to your Lordships in another context at the moment, and I, working as his principal legal adviser—devised the victims’ right to review scheme.

I wrote much of the legal guidance, so the noble Lord, Lord Russell, is correct when he says I know quite a lot about it. I am a huge fan of the victims’ right to review scheme, because although the Crown Prosecution Service is in many ways a completely wonderful organisation, everybody is human and sometimes people get things wrong—and when we get it wrong, we want to put it right. Obviously, a right is not a right unless it has a remedy attached to it, and that is a real problem in some of these cases. The noble Lord knows, because I discussed this with him when we met, that my practice when I was dealing with reviews of cases was always that if I took the decision to offer no evidence, I would write to the victim and say, “In 14 days I am proposing to do this, unless you want to make representations to me as to why I should not, or seek judicial review proceedings”. I completely get the issue here.

The only note of caution I will sound is this. It would be a substantial change, with wide-ranging implications for both victims and defendants. For that reason, it needs to be considered carefully, because discontinuing a case is not simply putting a pause into proceedings. Restitution requires fresh proceedings, starting back in the magistrates’ court, which risks delay and uncertainty for both victims and defendants. It does not go straight back into the Crown Court as a restart. That is why robust safeguards and controls, which are not in this amendment, are essential when making these decisions.

For example, in the magistrates’ court procedure, which this amendment seeks to replicate, the defence can refuse to accept a discontinuance and insist on no evidence being offered, or insist that the Crown Prosecution Service makes a decision as to what it is going to do. We are anxious to ensure that discontinuance is not, for example, used in the Crown Court as a way of getting an adjournment that would not be got under other circumstances, as in saying: “We don’t have enough evidence here. We need another three months to get it, so we’re going to discontinue and then restart”. That could create awful uncertainty, both for victims and defendants, as to what is going on. There are, for example, cases where somebody is a youth at the time they are charged and, if the case is then discontinued, they may then be tried as an adult later on.

I am not saying that I do not understand the problem or that this may not be part of the solution, but it needs to be considered carefully. What we plan to do is to consider this proposal further in the context of the wider court reforms and Sir Brian Leveson’s most recent report, with his recommendations for improving efficiency. I also welcome the expansion of the CPS pilot, strengthening victims’ voices before final decisions to offer no evidence are made. The outcome of that pilot will also inform our thinking. For the time being, I invite the noble Lord to withdraw his amendment.

[Lord Russell of Liverpool (CB)]

I thank the Minister very much for her response. I also thank the noble Baroness, Lady Brinton, for adding her name and for the examples she put forward. As I surmised, the Minister does indeed know what she is talking about—on a 24 hours a day, seven days a week basis, from what we have heard—and she is looking remarkably well on it.

I thank the Minister very much for the broadly positive way in which she has responded. I think she acknowledged, as we have all acknowledged, that there is an issue and an inconsistency here. But putting it right is not a matter of just snapping one’s fingers and changing one thing, because that has knock-on effects. I am hoping that the Minister will agree to have some follow-up discussions between now and Report, to see either what it will be possible to do by Report or what changes one can start instituting or committing to look at carefully, which can then be enacted later. But on that basis, I beg leave to withdraw the amendment.

Amendment 63 withdrawn.

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[Lord Garnier (Con)]

I can see what the printed words say, but if the Crown Prosecution Service was to write to the victim saying, “Do you realise that you can apply to the law officers to have this sentence reviewed by the Court of Appeal?”, it would give an imprimatur and an indication. That is the implication, and we should resist it.

I do not want to go on too long. Anybody can write to the law officers to say, “Will you review this sentence?” It does have to be a victim, or the family or next of kin of a deceased victim. There are plenty of avenues available to the public and to victims if they wish to explore this. To come back to my first point, we need to exercise a degree of caution before opening the floodgates to lots of disappointment.

[Lord Russell of Liverpool (CB)]

My Lords, briefly, I support the amendment from the noble Baroness, Lady Brinton, to which I have added my name. I have listened carefully to what the noble and learned Lord has said, but this is not an attempt to encourage lots of challenges to unduly lenient sentences. It is, above all, an attempt to achieve a degree of parity between the way offenders and defendants are treated.

The intent of the amendment it to suggest that a government department nominated by the Secretary of State should do the informing. It would need to be a body that was viewed as genuinely neutral, but it would be perfectly possible to inform the victim of their right and make quite clear the orbit within which an appeal against an unduly lenient sentence is likely to be successful and the parameters beyond which it would be highly unlikely to be considered, so as to make very clear to the victim, from the very beginning, the possibility of their having a case that might be over the threshold as opposed to being clearly below the threshold. It is entirely possible to imagine that one could create that.

[Lord Hacking (Lab)]

My Lords, when I say that I will be brief, I will be very brief. I have listened carefully to the noble and learned Lord, Lord Garnier. He is quite right in his observations, and particularly about the ultimate test of whether a sentence is set aside because it is unduly lenient. However, I think the answers have already been made by the noble Baroness, Lady Brinton, and the noble Lord, Lord Russell: this is a notification. The CPS is not taking a position on the merits of making the application; it is just setting up a timetable.