Committee (2nd Day)

Criminal Justice and Courts Bill – in the House of Lords at 3:08 pm on 21st July 2014.

Alert me about debates like this

Votes in this debate

Relevant documents: 2nd Report from the Constitution Committee, 3rd Report from the Delegated Powers Committee, 14th Report, Session 2013–14, from the Joint Committee on Human Rights

Clause 25: Possessing an offensive weapon or bladed article in public or on school premises: sentencing for second offences for those aged 16 or over

Debate on whether Clause 25 should stand part of the Bill.

Photo of Lord Marks of Henley-on-Thames Lord Marks of Henley-on-Thames Liberal Democrat 3:09 pm, 21st July 2014

My Lords, I oppose Clause 25 standing part of the Bill. The clause would make a custodial sentence compulsory in the case of a second offence of possession of a knife in a public place. The sentence would be a compulsory minimum of six months in prison for offenders over 18 and of four months’ detention in the case of 16 and 17 year-olds. The clause was introduced into the Bill in the House of Commons by an amendment moved from the Conservative Benches by my honourable friend Nick de Bois. It was not supported by the Government and, indeed, Conservative Ministers abstained on it. I rather hope that my noble friend and other Conservative Ministers will abstain in this House.

Our reasons for opposing this clause in the House of Commons and again in your Lordships’ House are fourfold. First, mandatory minimum sentences are wrong in principle in all but a few special cases, because they remove judicial discretion and fail to allow for individual circumstances. Secondly, the clause is unnecessary, because knife crime is already falling, and runs counter to the aim of rehabilitating offenders. Thirdly, the clause would risk doing real harm to those affected by it, because many who should not be in prison would be imprisoned, damaging large numbers of principally young lives. Finally, the clause would be discriminatory in its effect, even if that is not the intention of its promoters, and so would risk doing serious damage to community relations in this country.

My first reason is one of principle. Determining sentences is generally far better left to judges. Our judges in the criminal courts hear the evidence in individual cases and fully take into account all the facts, including the circumstances of the offence and of the offender, before passing sentences. Obliging judges to take a course that they would not otherwise take necessarily involves forcing them to impose a sentence which they would consider unjust.

We completely agree with those who support the clause that knife crime is extremely serious, that everything should be done to discourage it and that in very many cases, particularly when an offence is repeated, possession of a knife in public will warrant a sentence of imprisonment. In those cases, judges can and do impose custodial sentences. They can, indeed, be legitimately encouraged to pass custodial sentences in such cases in sentencing guidelines. However, if they decide not to pass a custodial sentence in a given case, that is because they regard one as unnecessary, unwarranted or unjust. If the clause is intended to have any practical effect—if it is more than pure posturing—that effect would be to oblige judges to pass a custodial sentence when they would not otherwise do so. There is absolutely no evidence that our judges get this wrong or that they are, in some way, a soft touch and fail to impose custodial sentences when the public interest or justice demands that they should do so. The clause would be an entirely unwarranted restriction on judicial discretion.

That leads to my second reason for opposing the clause, which is that it is unnecessary. Knife crime is falling. The Crime Survey for England and Wales indicates a continuing reduction in crime overall and in crimes of violence in particular, including knife crime. I would suggest that this is one of the significant successes of the Government, all the more remarkable for being achieved against the background of very difficult economic circumstances. The number of young people in custody has fallen to a record low. In May this year, there were fewer than 1,100 young offenders in custody under the age of 18—a fall of no less than 200 from a year ago. The number of 18 year-olds in custody also continues to fall. Parliament and professionals in the criminal justice system have been working very hard and successfully to reduce the numbers of young people in custody. This has been a continuing theme of this Government’s drive to push down crime: rehabilitation to reduce reoffending, and helping young offenders in particular to get away from crime and criminals and lead law-abiding and useful lives. This has been the very point of the rehabilitation revolution and was at the heart of the Offender Rehabilitation Act that we passed this year.

Against that background, and given the Secretary of State’s repeated statements of his commitment to rehabilitation, it was a shame to hear him say in relation to prison overcrowding:

“I make no apology for the fact that under this Government more people are going to prison, and they are going to prison for longer”.—[Hansard, Commons, 16/6/14; col. 843.]

If true, that is a matter for apology. I know that many in your Lordships’ House agree that rehabilitation is one of the main purposes of punishment and that rehabilitation is generally best achieved by a community sentence, unless a custodial sentence is unavoidable. This clause is calculated—even designed—to reverse that trend: to increase the numbers, particularly of young offenders, receiving custodial sentences, and increase the numbers therefore in custody at great cost to the public purse.

My third reason for opposing this clause is the damage it would do in individual cases. No doubt supporters of the clause will point to the exception which, they will claim, would avoid injustice. The exception granted would permit the court not to impose a custodial sentence if,

“the court is of the opinion there are particular circumstances which … (a) relate to the offence or to the offender, and (b) would make it unjust to do so in all the circumstances”.

However, I reiterate the point I made at Second Reading. If a “particular circumstances” exception is to be widely applied, then it makes a nonsense of the provision for mandatory sentences. If it is to be applied only rarely, then serious injustices will be frequent. The reality is that there are many perfectly ordinary circumstances—neither exceptional, nor even particular—when it would be unjust to impose a custodial sentence for a second offence of possessing a knife.

I add in parenthesis that one weakness of this proposed exception is that although this clause would prescribe a sanction only for repeat offences, the circumstances of the first offence, however minor or understandable in context it might have been, would be entirely irrelevant to the applicability of the exception, and therefore to the imposition of a compulsory prison sentence. Imagine a boy of 15 who carries a knife for a dare. Stupid and reprehensible such behaviour may be, but unfortunately there is nothing unusual about it.

Then imagine the same boy, just under two years later, now 17, approaching his A-level examinations and hoping to go to university. He carries a knife for his own protection and that of his girlfriend when they have been threatened. Again, that is a stupid and reprehensible thing to do, but again there is nothing unusual about it, so there is nothing particular about the circumstances of the offence. Nor is there anything unusual about an 18 year-old being on the brink of taking public examinations, so there is nothing particular about the circumstances of the offender either.

Then imagine that this boy is the son or grandson of a relative or friend. How could your Lordships defend to the parents of that boy the statutory requirement that the judge should send him to prison in a case in which, by definition, the judge would not have passed such a sentence in the exercise of his or her own judgment? If this clause were passed, to avoid imposing the compulsory custodial sentence in such a case the judge would effectively have to flout the will of Parliament and his judicial oath and find that these completely run-of-the-mill circumstances were particular circumstances, making this case so different from others as to require an exception to be made. I suggest that if this clause were enacted, it would cause significant numbers of young people serious and sometimes irreparable damage to their future prospects of further education, employment and useful and productive lives—when a judge would not have passed a custodial sentence.

My final reason for opposing the clause is that it would be discriminatory in its effect. If enacted, it would disproportionately affect young black men because they are disproportionately subjected to stop and search. The Equality and Human Rights Commission report in November 2013 found that in the year 2011-12 black men were six times more likely to be subjected to stop and search than white men. The commission rightly said that, used responsibly, stop-and-search powers are an important tool in the fight against crime and particularly useful in preventing people going out with knives and catching those who do. A great proportion of those caught in possession of knives are caught through stop and search. It follows that if this clause were enacted, the damage caused by the disproportionate use of stop and search would increase and more young black men would be sent to prison as a result. That in turn would risk causing ever increasing resentment and significant damage to community relations, particularly in our great cities.

We are not persuaded that there is any justification for the approach embodied in this clause beyond, I regret to say, a desire to appeal to a populist press with an eye-catching message that we are tough on knife crime. I invite Members of your Lordships’ House not to yield to the temptation to look tough on crime by passing a measure that would actually do nothing whatever to reduce crime.

Photo of Lord Paddick Lord Paddick Liberal Democrat 3:15 pm, 21st July 2014

My Lords, like my noble friend Lord Marks, I also oppose this clause. The provisions for compulsory terms of imprisonment run contrary to all my professional experience as a police officer of over 30 years and my instincts as a Liberal Democrat. No doubt some of your Lordships might be more convinced by one of those categories of argument than the other. All I seek to do is ask your Lordships to consider that this provision may actually make us less rather than more safe.

At Second Reading, my noble friend the Minister offered but one reason to support this measure. He said:

“It sends out a strong signal that carrying a bladed weapon is serious and has serious consequences if you are caught for a second offence”.—[Hansard, 30/6/14; col. 1621.]

The question is: who will listen to that strong signal?

At Second Reading, I referred to the anecdote of the Commissioner of Police for the Metropolis, Sir Bernard Hogan-Howe, who is quoted as having visited HM Prison and Young Offender Institution Feltham, where young offenders apparently told him they no longer carry guns because there is a minimum term of five years’ imprisonment. However, a former police colleague carried out extensive academically overseen research into the attitude of offenders at Feltham and his conclusions were that the overwhelming majority of offenders rarely thought about the consequences of their crimes before they acted; they had no intention of getting caught, so the legal penalty was irrelevant.

To take a different example, how many of the millions of young people who take drugs every week in this country make their choice on the basis of what category the drug is in and therefore what the likely penalty is before deciding which drug to take?

Even if the Commissioner managed to find some who thought differently, there is a world of difference between a handgun—where there is no lawful reason for carrying one in the street—and a knife, where the carrier can give many innocent explanations to the police officer who stops him. There is also a world of difference between a minimum of five years’ imprisonment and the four months or six months proposed in this clause.

I have worked in parts of London where knife crime is prevalent. I was a sergeant and a chief inspector and a police commander in Lambeth. I was also the chair of trustees of a charity that was dedicated to diverting young people in Lambeth in south London away from crime. I have talked with former offenders and those working alongside them and all my experience tells me that the best way to deal with knife carriers is to allow judges the discretion to hand down the appropriate sentence tailored to the individual, and not to tie their hands by forcing them to impose a term of imprisonment.

Like my noble friend Lord Marks I will address the issue of judicial discretion that is within the clause. My noble friend the Minister may say that there is judicial discretion, and it is worth repeating that new subsection (2B) states that the court must impose a term of imprisonment unless it is of the opinion that there are particular circumstances relating to the offence or to the offender that would make it unjust to do so in all the circumstances. With the greatest respect to the Minister, he cannot have it both ways. Either this sends the clear message that a second-time knife carrier will go to prison if caught or it sends a mixed message that you may go to prison, depending on the circumstances. If it is the latter, other than partisan political point-scoring and the attention-grabbing and misleading headline, “Compulsory Prison for Knife Carriers”, what is the point of this clause?

Short-term imprisonment does not work. It delivers the worst of both worlds—taking offenders out of society and making it more difficult for them to maintain social ties and employment, while not allowing them to benefit from any kind of education, training or rehabilitation regime during their short time in prison. Fifty-nine per cent of those in prison for less than 12 months reoffend within a year of release. In June, Her Majesty’s Chief Inspector of Prisons, Nick Hardwick, reportedly said:

“Resources are now stretched very thinly ... there is a pretty clear choice for politicians and policy makers—reduce prison populations or increase prison budgets”.

Will the Minister—I also ask this of the party opposite—tell the House by how much the Government will need to increase prison budgets to cope with the increase in prison population that this provision will inevitably bring about?

For those who might say that a price cannot be placed on saving lives, my whole point is that this provision would do nothing of the kind. The courts already have the power, as my noble friend Lord Marks has said, to send those who deserve to go to prison for carrying a knife to prison—and to send them to prison for a long time. It is absolutely right that they should be able to do so.

A much better way to reduce knife carrying on our streets is to get ex-offenders—people who at-risk young people can relate to—into our schools, to tell young people, from their own experience, not to waste their lives and those of their potential victims by carrying a knife. With the greatest respect, they are far more likely to listen to them than to politicians and police officers about the sentence they will get in the unlikely event of their being caught.

We must increase the chances of knife-carriers getting caught. A much better way of reducing knife carrying on our streets is to encourage those within communities where the knife carriers live and operate to tell the police who they are, so that the police can target their stop-and-search operations on criminals. If these people know that passing such information will result in people being imprisoned without question, they will be even more reluctant to tell the police.

I served in inner London boroughs throughout my police career. Even as a senior officer I walked the streets. Last Monday was typical. When I left this House at 10.45 pm, I got the bus to Elephant and Castle and I walked home. If I believed that this provision would make people safer, I would have every personal incentive to support it and certainly would not oppose it. I do not support this clause and I urge noble Lords to oppose it as well.

Photo of Lord Deben Lord Deben Conservative 3:30 pm, 21st July 2014

My Lords, I ask the Government to think carefully about this clause—and I do so because they have pushed me into the very unlikely position of finding it impossible to support this proposal. The reason I find it impossible is that we already have more people in prison than any comparable country in the world. When we had a discussion about that, Ministers said, “Ah well, judges deem it right to send people to prison”. I do not see how you can say that and then say that in circumstances of this kind, judges should be told that they have to send people to prison. That is the first point that I find very difficult to take.

The second point is that judges are in a position to make proper decisions about very vulnerable young people. When I had a young persons’ prison in my constituency, to go there was one of the most depressing moments of the month because you met all sorts of young men who could so easily have been your own children, if they had not been brought up in circumstances of such horror and in such appalling situations that you were surprised that anybody could have turned out other than criminal. You cannot excuse people by their background or environment but you have to make your judgments on punishment with a full understanding of the circumstances and likely effects of the punishment that you make.

The third reason is this. If you can think of a way most likely to ensure that someone who has broken the law will continue to do so, a short prison sentence must be it. It is manifestly true that it does not work; it is even more true that it normally can make things worse. If other countries manage to have a different system without having some enormous increase in crime, the Government really have to think again. After all, if you walk in the streets of Paris or Berlin, or indeed in Dusseldorf or Lille, do you feel less safe because there are half as many people in prison? Of course you do not. They have found better ways of doing this. I am citing not Scandinavian countries but those countries with which we would normally compare ourselves.

There is a further reason, too, which is this. I hope that my noble friend the Minister will not be embarrassed by this but I do not like the way that this got into the Bill. It was not in the Bill originally; the Government did not think that it was the answer. What happened was that people outside, not known for their concern for young people or their concern for moderation and real facts, started a campaign to say that this was the answer. But that is the same campaign that we have had for years and years, which is: “Be tougher, lock up more people and really show which side you are on”.

I do not think that anyone could claim that I am on any side other than having the toughest belief in the rule of law and the most concern to protect people. However, I do not like it when the law is changed, or proposed to be changed, not by the sober reflection of those who have to carry the consequences but by the noisy statement of those who will move on to another campaign the moment that that one ceases to sell newspapers or gain support. That for me is the reason why this is intolerable. We must make our laws because we know that they are right and have thought about them; otherwise, we will go backwards in so many ways.

I end by saying to my noble friend that one of the things that characterises this Government—and, indeed, this moment in our history—is that we have become more understanding about things and less damagingly demonstrative about our attitude to other people. We have become more willing to say that there must be another way. As we are going to discuss the appalling situations created by those who think that the only way forward is to use force against others, we ought also to think about ourselves. We do not have this right. We have not made our whole punishment system work as well as those of many of our neighbours. Is not this the moment to say that we are not going to keep going down this route but are genuinely going to see whether we can learn more from other people and, having done so, change our system so that we can get the results we need without the knee-jerk reaction of “lock ’em up”?

Photo of Lord Blair of Boughton Lord Blair of Boughton Crossbench

My Lords, I strongly oppose the proposal that Clause 25 should not stand part of the Bill and it appears that commissioners may think in the same way, according to the noble Lord, Lord Paddick. Since the early 19th century, it has been the received wisdom that people are deterred from committing crime by the likelihood of detection rather than the length of sentence. I agree with that in general.

As a former Metropolitan Police commissioner and deputy-commissioner, I have experience of two categories of crime that proved the rule by being exceptions to it. The first is the one that Sir Bernard Hogan-Howe has apparently already mentioned: that is, the reduction in shootings that occurred in London after a five-year mandatory sentence was announced. That occurred because communication among the criminal fraternity is good. It is particularly good among the women of that group, who stopped carrying the guns in their handbags. Therefore the guns are not as much in evidence as they were.

I imagine that many noble Lords will recall my second example, which was a response to the marked rise in fatal and near fatal stabbings of teenagers in London a few years ago. The most important factor in reducing that was the issue of a practice direction from the noble and learned Lord, Lord Judge—I do not think that he is in his place—when he was Lord Chief Justice, that a first offence of unlawful possession of a knife should normally be considered for a custodial sentence. Knife crime started to fall and I believe that is because people knew that that message was passing around the streets of London.

I believe that, with knife crime falling, a custodial sentence for a second offence of carrying these weapons makes much better sense than for a first offence. The reason for that is it provides people with a chance. A sentencer now sentencing someone for a first offence can give them a very simple message which is very easy to understand—“Don’t do this again or you will go to jail”. Normally, I am in favour of leaving judges and magistrates free to exercise their judgment but this crime has an additional catastrophe attached to it. It ruins the life not only of the person who is seriously injured or killed but also the life of the offender in those circumstances.

I had to talk to the families of people who had been murdered in these circumstances. We have not heard enough from those who oppose the clause or, with respect, from the noble Lord, Lord Deben, about the victims of knife crime. Knife crime can change lives catastrophically. One of the awful things about that period when teenagers were killing each other in London was how often there was only one knife wound. A single blow had caused these deaths, as if these young people had no idea that that action would kill someone. It seems to me sensible to pass a message to stop the thing happening that will then allow someone to be murdered. One cannot murder someone very easily if one does not have a knife or a gun. I strongly oppose the proposal.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

My Lords, judicial discretion is a very important aspect of the judicial process. However, embedded in judicial discretion is the fact that you cannot know in advance with precision how that discretion will be exercised. If you have studied the sentencing guidelines you may know roughly the areas in which the discretion will operate, but having a fixed penalty as a minimum means that it is known in advance that unless there is a particular circumstance to take you out of the situation a fixed penalty will happen. You know that in advance.

I have heard what has been said in support of this clause and also the other point of view from a very experienced police officer. I know a case of knife-carrying that was enough to kill somebody and give the carrier a life sentence. I found that a very traumatic experience. Telling people in advance what the sentence will be is an extremely important deterrent. It has been done in various parts of our judicial system. Therefore I do not regard the principle on which this is based as one that can apply in all circumstances. In a second offence for knife crime it is reasonable for a statement to be made about precisely what the sentence as a minimum will be unless there are circumstances that take it out of the ordinary.

My noble friend Lord Marks has commented on the nature of the exception. If he wishes to improve on that, there is the option of an amendment to that effect. So far, none is forthcoming. I shall take it that the exception, in so far as it is stated, is a reasonable exception in the circumstances of this case. Of course the idea is not to put more people in prison; it is to prevent people from going to prison by knowing that if they do this particular thing for a second time that is where they will go. On the whole, one hopes that that has a deterrent effect.

Information about this will quickly get around among the people who are affected by it. One can understand the idea of discrimination but of course it depends on the way in which the power to stop and search is used. As far as I am concerned, this power must be used in accordance with the best discretion of the police officers on the street. However this amendment has come about—it was made in the other place—the Government have decided in the light of their experience and of their policy as a whole that it should be adhered to and given effect.

Photo of Baroness Mallalieu Baroness Mallalieu Labour 3:45 pm, 21st July 2014

My Lords, I intervene briefly. I have deep unease about this clause for a number of reasons that have already been given by the noble Lords, Lord Marks and Lord Deben. I hope that the Minister will be able to help me further.

I do not like mandatory sentences. As someone who has practised in the courts for 40 years on both sides, I have seen a great many cases involving knives. I have seen the consequences of them and I have dealt with many people whose lives have been devastated by their use. However, mandatory sentences lead inevitably, in a very small number of cases perhaps, to injustice. There must always be a proper discretion for the judge who hears the facts and sees the people involved to make the right decision on sentencing. I do not like gesture politics either, and sometimes as a result of pressure we are led to amendments in this House which are not going to be the right route to getting the best result.

I should be grateful if the Minister could help us about the discretion currently contained in the clause. The noble Lord, Lord Marks, interpreted the word “particular” in Clause 25(2B) as something exceptional. I would like to know whether he is right. Could “particular circumstances” of the first offence not be the circumstances which relate to the offender and therefore allow judicial discretion to be exercised? It would seem wholly wrong if the circumstances of the first offence were relatively trivial. I can think of an occasion when someone came to see me in this House wearing a Barbour mac which he had worn on the farm in which was a knife that was discovered as he tried to come into the House. He had no idea that he had the knife with him, which he used for cutting straw bale string. It is incredibly easy for somebody to be carrying a knife without appreciating the first time what has happened. I take what the noble and learned Lord said about the second occasion, but although we often speak in this House about sending messages, I doubt very much whether many 16 to 18 year-olds are sitting reading

Hansard and taking them in. They may get around in the street. Can a judge really not take into account the trivial circumstances of the first offence when he has to decide whether to impose a custodial sentence? I agree with what the noble Lord, Lord Deben, said about the complete lack of help that a custodial sentence almost inevitably gives to a young person.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Crossbench

My Lords, I deplore the carrying of knives, as do all of us in this House. I shall make two short points to support the noble Lord, Lord Marks. First, I am sad to disagree with the noble and learned Lord, Lord Mackay of Clashfern, but my experience of teenagers is that those between 16 and 18 would probably not take the slightest notice of a deterrent, as has already been said. Those who are slightly older—over 18—might, but from my experience as a family judge, I doubt that this would be a deterrent to 16 or 17 year-olds.

Secondly, I sat occasionally in crime, and was not very good at it, but I find it quite extraordinary that successive Governments seem totally unable to trust the judiciary to come to the right conclusion. We know from previous speakers that judges already have all the powers they need to deal with a second offence, to deal with it strongly and to put people away for much more than six months. For those two reasons, I very much support the noble Lord, Lord Marks.

Photo of Lord Hope of Craighead Lord Hope of Craighead Judge

My Lords, if I may, I will add a few words in support of the points made by the noble and learned Lord, Lord Mackay of Clashfern, and my noble friend Lord Blair, based on my experience as the senior judge in Scotland, the Lord Justice General. When I held that office, which I held for seven years, there was an upsurge, as happens from time to time, in the carrying of knives, particularly by young people. As the noble and learned Lord, Lord Mackay, has told us, there are cases where people who carry knives use them in an impulsive reaction to something said or done, resulting in horrific injuries. I spent four years as a prosecutor dealing with these cases.

Sitting as Lord Justice General, one of my responsibilities was to preside over the appeal court dealing with appeals against sentence in cases that had come up through the courts—sometimes through the sheriff court or sometimes through the High Court—where people had been sentenced for carrying knives. We thought that part of our duty in disposing of those appeals was to send out a message, because of the deterrent effect that we hoped that it would have. It was very much about deterrence; sometimes one added much more colourful wording to strengthen the deterrence. We might be quite lenient in the decision, but we would couch it in words that were designed to have an effect and draw the media’s attention, in the hope that they would report what we said and carry the message that the carrying of knives would be likely to lead to a custodial sentence.

Indeed, I remember going on television at the request of the police, who were concerned about the issue, using my authority as Lord Justice General to make that very point. I said that those who went out into the street carrying knives ran the risk that they might be prosecuted and that there was a risk that they might find themselves subjected to a custodial sentence. Of course, I was not cutting across the independence of the judiciary or the discretion that we all exercise; our concern was to get the message across. There is a force in doing that in statute, provided that it is appropriately worded.

I have looked at the wording of this particular clause, which contains fairly strong language, pointing in the direction of judicial discretion. As the noble Lord, Lord Marks, has said, I am concerned about bringing into consideration the first offence, which could be extremely important. But one must not underestimate the power of the deterrent effect coming through the message from a measure of this kind. I was not sure that, as judges sitting in the appeal court, by saying the things that we so often did, we were really getting the message across, which was why I was prepared to make a statement about it on television. I was not sure whether that in itself got the message across, either. But putting across the message and deterring people from getting involved in these things, with dreadful consequences for them and their victims, is immensely important. There is great force in the point made by the noble Lord, Lord Blair, to that effect.

Photo of Lord Purvis of Tweed Lord Purvis of Tweed Liberal Democrat

I intervene on the noble and learned Lord with a degree of trepidation. He rightly gives the experience of Scotland from a most senior position. While this was not at the same time, I served on the Justice Committee in the Scottish Parliament, which took a conscious decision to reject the course being taken with this amendment. Instead, we took the approach of putting more resources into the violence reduction unit in the former Strathclyde police force, and working with those charities for gangs. We found that to be the most effective way in which to communicate the message, rather than an approach of amending legislation, which we were informed by all of those experienced on the ground in those communities would not be the most effective way. I may agree with the noble and learned Lord, but we come to a different conclusion. Would he reflect on that before he concludes his remarks?

Photo of Lord Hope of Craighead Lord Hope of Craighead Judge

I am very grateful to the noble Lord for raising that point. Of course, one supports everything that could be done by people on the ground, and there are all sorts of things that could be done. I was trying to get across the fact that I was approached by the police to use my authority, as the senior judge in Scotland, to make the announcement that I did on television in the terms in which I made it.

There is a choice as to whether one trusts the energy and resources of those on the ground to carry the message across, coupled with such statements as the judiciary can make, or whether one has to resort to statute. The point that I am making is that deterrence is crucial in this field and that the more one can deter the carrying of knives and thereby the incidents that follow from the carrying of knives, the better.

Photo of Lord Woolf Lord Woolf Crossbench

My Lords, it is with some considerable hesitation that I speak now, with two views having been expressed—one by those who support this measure and one by those opposing it. It is only right, however, having heard what my noble and learned Scottish friends have had to say about this that I should mention my experience. I have the greatest respect for the noble and learned Lord, Lord Mackay, whom I was glad to serve under when he was Lord Chancellor, and for the noble and learned Lord, Lord Hope, as well, who is a colleague in the House. With great respect to them, though, neither of them, if I may say so with all due deference, were judges who were sentencing in courts at first instance.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

That is not correct. The case that I referred to was at first instance in a trial in the High Court in Glasgow.

Photo of Lord Woolf Lord Woolf Crossbench

I stand corrected on that but again, if I may say so, their experience was not, because of the way in which their careers developed, in accord with mine. I sat as a judge in the higher courts at every level, first as a High Court judge, then as a Court of Appeal judge, then as a House of Lords judge and finally as the Lord Chief Justice, in relation to these matters.

The one thing that I want to emphasise is that the right way of sentencing in the ordinary way is not for Parliament to lay down what the fixed sentence should be; rather, it is for Parliament to set out the framework and for the judges, within that framework, to deal with matters specifically. Four-month and six-month fixed sentences amount to tinkering. To think that that sort of sentence is going to be of any significance—again, I speak with great respect for the noble Lord, Lord Blair, whom I know and respect—is not right. Four-month and six-month sentences, as has been said already, just do not work as far as either the authorities or offenders are concerned. If someone is the sort of person that this provision is aimed at, who caused someone’s death by the carrying of a knife, I am afraid I cannot begin to believe that their conduct will be influenced by this. That is contrary to the experience of the great majority of judges and, as I have said, amounts to tinkering. That is what we should not do.

We have powers in the court to deal with these matters. Both the noble Lord, Lord Blair, and the noble and learned Lord, Lord Hope, put their finger on the point when they said that the courts can send messages in the same way that Parliament can send messages. However, there are situations where it is appropriate for Parliament to send a message, but there are situations where it is much better done otherwise, although I do not say that it has to be the judiciary. We have heard in this field that both the noble and learned Lord, Lord Hope, and Lord Justice Judge sent messages and were indicating. Although it is right, as the noble and learned Lord, Lord Mackay, says, that if you have a fixed sentence there is more of a likelihood that someone might know what the fixed sentence is, it is also more likely that injustice will be caused by the fixed sentence.

When we legislate, we have to hold the balance between doing justice and ensuring that people are safe so that we do not get into a situation where a court finds that its hands are tied and it is forced to give a sentence that it would prefer not to. The provision that is a safeguard in this case is based on one that is well known to courts south of the border and, I suspect, north of the border. The difficulty with this provision has already been indicated by the noble Lord, Lord Mallalieu. What does it mean? It is a matter that I do not mind saying—[

Interruption.

] I am sorry, the noble Baroness, Lady Mallalieu. I apologise to the noble Baroness and I know that she will forgive me for that discourtesy.

The position is this: Lord Bingham took one view of what a provision of this sort made, and I took a different view. I said, and you can find this in the Law Lord reports, that the only way you can make sense of this provision is to say that the right way of interpreting it is that a judge’s hands are not tied if that would cause injustice, because it is obviously not the intention of Parliament that judges should impose an unjust sentence. Lord Bingham said that that made this provision a non-entity. I realise that and I agree, and if that is so then we are better off without it.

Photo of Baroness Howells of St Davids Baroness Howells of St Davids Labour 4:00 pm, 21st July 2014

My Lords, I had not meant to take part in this debate; I am neither a lawyer nor a judge. However, at one time in this Chamber today I felt I was being given the strong impression that only black boys carried knives in this country. I want to put on record that this is not so. In cases with which I have been involved in Greenwich, young men were killed with knives not because they had committed a crime but because they were black. I should like that to be put on the record.

Photo of Baroness Berridge Baroness Berridge Conservative

My Lords, I raised this matter at Second Reading and draw to the Committee’s attention the fact that the amendment was tabled by Nick de Bois, an Enfield MP, strongly supported by David Burrowes, another MP for the Enfield borough. It is a borough not unfamiliar with knife crime, which in some cases involves fatality. These are MPs who have direct experience and I hope that that ameliorates the suggestion that this provision is just a knee-jerk reaction. Knife crime has been an issue for Enfield for some time. It has also been drawn to the House’s attention by the Lord Chief Justice that we have a problem. Whether this is the correct solution is another matter but we have a problem with the carrying of knives by young people that is often seen as some kind of status symbol.

I remind your Lordships of what perhaps seems an obvious point. There have to be two convictions before this power comes into play. I have read of situations in the media in which people have carried penknives. One would have to possess these weapons,

“without lawful authority or reasonable excuse”.

This does not apply to anyone accidentally having a knife left over from pruning the roses or working on the farm at the weekend. These are people who are carrying knives without being able to provide an excuse. This power is supported by not only the former commissioner but the current Metropolitan Police Commissioner, who said:

“Where we are getting gang members or young people carrying knives and there is no excuse, then this is a serious matter for me”.

So we also have the Metropolitan Police saying that it wants additional powers in relation to knife crime. I have looked at the discretion given, and this is not a mandatory provision that necessarily would lead to injustice.

I should really like to highlight the issue of discrimination, and I strongly disagree with my noble friends on this. I raised this matter way back, in my maiden speech. There sometimes seems to be a disproportionately low response to victims of violent crime when they are not white. One must not forget that, in this situation, the figures from when I checked—I thank the Library—show that one is twice as likely in London to be a victim of knife crime if you are black. From my experience of speaking to community leaders, they are extremely concerned about the effect of this on their own communities. They are the victims of this, so it is flawed to suggest that the provision is discriminatory because of stop-and-search powers. I accept that elements of our criminal justice system have been discriminatory over the years and one can point to the discussion in the other place involving the Home Secretary, who has brought in a review of stop and search. Her Majesty’s Inspectorate of Constabulary has looked at this, and the Home Secretary had the support of Diane Abbott, of all people. We had grasped a nettle that had not been grasped for a long time.

This Government have also rid the ethnic-minority communities of the injustice of a DNA database that held innocent people’s DNA. These issues have been addressed and it ignores the effect on victims in minority communities if we refer only to the perpetrators.

Photo of Baroness Walmsley Baroness Walmsley Liberal Democrat

My Lords, I had not intended to speak in this debate and will do so briefly. I have listened carefully to those who oppose my noble friend Lord Marks, and I am afraid that I am not convinced by them for two reasons. First, the cases that they cite are ones in which the judge would almost certainly have sent the person to prison anyway. When somebody carries a knife with serious intent and uses it, that is when people go to prison. We do not need the clause for that reason.

The other point has not been mentioned at all. The clause is supposed to be a deterrent, mainly for young people, to prevent them getting involved in carrying knives in the first place, which is a very laudable objective. However, let us remember the development of children’s brains. The majority of the development of children’s brains happens between birth and three years of age, but there is a boost during the teenage years. That is when risk taking comes in. If noble Lords consider that, they will realise that a deterrent such as this very small prison sentence—I quite agree with the noble and learned Lord, Lord Woolf, that it will do nothing but harm—will certainly not deter someone whose brain is telling them, “Now you can take risks, and you should”.

Photo of The Earl of Listowel The Earl of Listowel Crossbench

My Lords, I ask the Minister to clarify one issue, and ask for help from my noble friend Lord Blair on another. The first issue concerns children in care. As the Minister will be aware, a disproportionate number of children in care are in custody: more than half the boys and just under half the girls in custody come from the care system. I would be interested in clarification about any exception under the proposal that will look at the backgrounds of young people, particularly if they come from a care background. I imagine most of your Lordships will be aware that 60% of children originally come into care because they have been abused and a further 10% because their family has broken down. As the noble Lord, Lord Deben, described, these are children who are very damaged and sometimes troubling to others as well.

When we discussed mobile phone crime seven or eight years ago the law was strengthened because of concerns at that period. I remember a case where a 15 or 16 year-old boy, on his first day at a children’s home, joined a group of people he did not know. One of that group stole a phone. The judge was obliged to be tough with him and sentenced him to custody. There was no suitable secure local authority children’s home for him. I think he was placed in a young offender institution and he hanged himself. One must also remember that these children are more vulnerable to knife crime. It is of course a very finely judged argument.

My question to my noble friend Lord Blair concerns his experience, which was most interesting. His first example concerned women taking guns out of their handbags, so it was an older group. What was the experience of 16 or 17 year-olds in the second example he gave, if he is aware of that? I share the concern of my noble and learned friend Lady Butler-Sloss that 16 and 17 year-olds may not be able to understand the weight of punishment that may await them if they continue—although they will have committed a first offence, so they probably should be aware.

Photo of Baroness Howarth of Breckland Baroness Howarth of Breckland Crossbench

My Lords, of course it is wrong for a young person to carry a knife. Of course we want to remove and reduce the number of young people in school with knives. Of course we want to sympathise with the victims. I am a mere social worker, so I have had to work at both ends of this spectrum. However, what we are talking about is what the real deterrent would be, not whether we are aiming to reduce the use and holding of knives.

I agree with noble Lords who have spoken about young people’s development; we think of that very little these days in our policy. Based on my experience, the clause is very unlikely to deter them from carrying knives. What happens is that young people find themselves in a gang at the age of 14. The rest of the gang are aged 16 to 18. The clever thing is to carry a knife. It may be that the 16 to 18 year-olds are not carrying the knives, but the young person is encouraged to take the risk. On estates they are terrified that their parents—usually their single mum—are going to be harmed, so they carry a knife. Of course it is wrong, but the deterrents will not work if these young people are going to be put away.

The All-Party Parliamentary Group for Children has just been looking at the relationship between children and young people and the police. A number of the young witnesses were pretty tough and had been in extraordinary trouble. It became clear that what made a difference was those young people having a police mentor. As the result of the police going into their schools and talking to them, they joined the police cadets or some other organisation, and that was far more likely to deter them from the path of any sort of criminality, particularly violence. If young people begin to understand, through relationships, what the outcome of their actions will be, they will be much more likely to change. Therefore, I oppose the clause and support the noble Lord, Lord Marks.

Photo of Baroness Buscombe Baroness Buscombe Conservative

My Lords, I rise to speak with some trepidation because I have found this debate really rather depressing. I speak as a member of the Joint Committee on Human Rights. I am not speaking as someone who might have experience as a social worker or as a member of the judiciary. I am a lawyer but I am also a mother and perhaps, through that experience, in addition to my experience as a lawyer and as someone who has spent many years in your Lordships’ House, I might understand the thinking of those who carry knives. We should remind ourselves that we are talking about:

“Possessing an offensive weapon or bladed article in public or on school premises: sentencing for second offences for those aged 16 or over”.

I shall be brief because most of what I want to say has been said very eloquently by my noble and learned friend Lord Mackay and my noble friend Lady Berridge.

My support for this clause focuses on two points. First, it is true that the level of knife crime is falling and that has to be a good thing but, through our ability as a legislature, let us give all the support we can to those who work to support that trend to do the right thing—that is, the police, teachers, governors, the Government, the Ending Gang and Youth Violence programme led by the Home Office, and those very young people themselves. Let us not underestimate the ability, the intelligence and, in some ways, the smartness of those who unfortunately are gang members. Let us give them every piece of ammunition to stop carrying knives in public places and in the schoolyard. Let us think about their friends who are terrified every time they go into the playground because they do not know who, among their friends, is carrying a knife.

My second point concerns deterrence, and it has pleased me to some extent that we have at least heard that word. I was beginning to think that there was no longer any such thing in people’s minds and that people were saying, “Well, it won’t work, so let’s not bother”. We have been allowing these gangs to grow in number in all parts of this country. Let us do all we can to see whether just one additional strengthening of the law will lead to some small deterrent somewhere in the minds of these young people, giving them the strength to say, “You know what, it’s not worth it. Even though it might look cool, it ain’t cool, because I don’t want to go to prison”. Call me naive but I can tell your Lordships that, in a sense, bringing up children is as good an experience as sitting in a court of law and receiving the problem after the event. I am saying that we have the ability in your Lordships’ House to focus on prevention, not the after-effects. So please can we say to all those children out there, “Be strong and we will show you that it’s just not cool to carry knives”?

Photo of Lord Foulkes of Cumnock Lord Foulkes of Cumnock Labour 4:15 pm, 21st July 2014

My Lords, I have listened carefully to all the speeches and I must say I find the arguments on both sides very powerful—some very powerful, convincing arguments have been put forward. It is a great pity and does a disservice to this House that an artificial division is being created on such an important matter merely because the Liberal Democrats want to have a conscious decoupling from the Conservatives in the run-up to the general election.

Photo of Baroness Hussein-Ece Baroness Hussein-Ece Liberal Democrat

My Lords, I, too, was not going to take part but the previous contribution was not worthy. This is a very serious subject. I am the mother of a son who was mugged when he was a teenager. He came to the brink when he felt so scared that he wanted to carry a knife but luckily he did not—not to my knowledge, anyway. Young people, particularly young men, are more likely to be victims of crime and we need to have faith in the judicial system—as we have heard from noble and learned Lords this afternoon. We need to allow judges to take and judge each matter on its merits, case by case, and must not dictate from this Chamber and from Parliament.

We heard earlier from the noble Baroness, Lady Howells, about the issue of black youth. The argument was—with respect to the noble Baroness, Lady Berridge, whom I respect enormously—that they are disproportionately affected as they tend to be stopped and searched more. That means that others who may be carrying knives are unlikely to be stopped. That is a discrepancy that needs to be taken into account.

The idea that a 14 or 15 year-old boy who feels scared and vulnerable because he may not be in one gang or another but feels the need, however wrong it is—of course it is wrong, but there is no rationality here—to go out with a knife should then have his life ruined as a result of making one mistake is not something that we should support. We should leave it to the courts. We should be listening a little more to young people, which I do not think we are, about which things work and which do not. At a time when knife crime is falling I cannot for the life of me see why we should want to impose this mandatory obligation on the courts.

F

excellent point and the 'bigger picture' approach is far more sensible. A one size fits all approach is completely wrong

Submitted by F Hussein

Photo of Lord Richard Lord Richard Labour

My Lords, I shall be very brief. What I object to in the Government’s proposal is the automaticity built into it. Irrespective of the circumstances of the particular offence or of the offender, there is an automatic assumption now that a second offence will produce a sentence of imprisonment. I do not like that—I think it is wrong. I do not think that is the way in which our courts should behave. Indeed, in 99.9% of the cases that is not the way in which our courts do behave. It is essentially a matter for judges to decide what is the appropriate penalty given all the facts and the circumstances of the case. Therefore, I ask myself, “If that is wrong why are Government doing this?”. I suppose the answer is that they want to send a message. What message do they want to send? It is a mixture, I suppose—part politics and part deterrent. I will leave the politics out of it because one of the interesting things this afternoon has been how apolitical this discussion has been. Therefore, let us just look at the deterrent argument. Does it hold water?

My noble friend Lady Mallalieu said that she practised at the criminal courts for 40-odd years. I cannot say that I practised with quite the continuity she did over the past 40 or 50 years but I have done the same. I have to say to the House—as she did—that the idea is fanciful that criminals solemnly sit down and say to themselves, “Well, if we are going to get X years we will commit this crime and if we are caught and we are going to get Y years then we won’t”. That is not how it works. The professional criminal does not think in that way and certainly the youth who may be carrying a knife as part of some kind of teenage bravado is certainly not going to think in those terms. I do not accept the deterrent argument.

So do we want to send a message? If we do want to send a message—a united one, I hope—that we thoroughly disapprove of knife crime and that people who carry knives should be properly punished, and in some cases severely punished, that is a good message and we should send it. But should we send it via statute, in an automatic way? It says, “If you do that, this is bound to happen to you.” I think not. It is totally the wrong approach. Judges have the power to deal with these cases and to send their message. If judges impose heavier sentences for second offences of knife crime, that is a matter for them, and some may hope that perhaps they will. It should not be a mandatory message of the sort that this clause would impose. It destroys judicial discretion and alters the nature of the criminal process. In almost every other area of the criminal justice system of this country we do not have mandatory sentences and I hope that we do not go down that particular road in this area.

Photo of Baroness Manzoor Baroness Manzoor Liberal Democrat

My Lords, I, too, had not intended to speak, but I feel moved to do so on this occasion. We have judges for a reason, and if we set a precedent in relation to this particular issue, I think that we will put ourselves on a slippery path of setting other mandatory sentences in the future.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Labour

My Lords, I, too, was not going to add my voice to this debate, but I feel compelled to do so for two reasons. The first is because this is an issue which has been troubling the House for quite some time and we have had a number of debates about it over the years. There is an issue about whether we believe that judges, when they issue sentencing guidelines, are able to do that which a number of Members of this House want in terms of deterrence. A judge’s guideline which indicates that for a second offence the expectation will be imprisonment does have a profound effect.

Secondly, I refer to the period of imprisonment, which is to be four to six months. Those of us who have been burdened with the joy of helping to deliver the criminal justice system know that a period of imprisonment of four to six months is the least effective term there is. Very little opportunity arises in which to do a needs-based assessment with the offender, to do a skills analysis, and then to be able to ascertain how best to intervene and interrupt the pattern of criminality, if one has already been established. If we are thinking about the efficacy of a sentence, this, I must respectfully say to the Committee, seems to be the least efficacious. I would hope that we can trust the judgment of our judges and invite them, if there is not now a strong guideline in relation to sentencing, to provide us with one.

Photo of Lord Deben Lord Deben Conservative

Will the noble and learned Baroness confirm for the Committee that neither she nor I have any intention of supporting a Liberal Democrat plot on this subject?

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Labour

My Lords, I can assure the Committee that this has been a sober debate on the issues and that it is clear that there is no unanimity of view on any Bench. I believe that the House of Lords is demonstrating its independence and doing what it does best, which is to argue and disagree, and then, it is hoped, to come to a consensus.

Photo of Lord Macdonald of River Glaven Lord Macdonald of River Glaven Liberal Democrat

My Lords, amen to that. Like the last several speakers, I had not intended to intervene in the debate—this could go on all night, I suppose—but I want to make two points. First, it was my experience, not only as chief prosecutor but also over very many years of practising criminal law, that sentences of between four and six months are not just pointless, as many speakers have indicated, they are positively damaging. Young people who are sent into young offender institutions for four to six months do not come out with nothing, they come out with worse than nothing. I have always thought that it was a preposterous policy to send young people into incarceration for such periods, and yet that is precisely what this Bill mandates, and in that sense it will do serious damage.

The second issue is mandatory sentencing. We have a good example of a jurisdiction that has gone down the route of mandatory sentencing: the United States of America, which has well known federal sentencing guidelines. The prison population in the United States of America stands presently at 3 million.

Photo of Lord Kennedy of Southwark Lord Kennedy of Southwark Labour

My Lords, when I make contributions to these debates, I am always conscious of a sense of nervousness because so many distinguished, noble and learned Lords have contributed to the debate. I am not a lawyer: I come to the debate as a lay person. On these Benches, we are unable to support the noble Lord, Lord Marks of Henley-on-Thames, although we share his concerns about the effects of stop and search. We must have procedures in place to discourage the carrying and use of weapons. I am sure that the noble Lord, Lord Faulks, will confirm when he responds to the debate that he believes, as I do, that the Bill should allow for judicial discretion.

It is important that the Government deal with the issues that lead people, particularly young people, to commit these offences. I agree with the comments of the noble Lord, Lord Paddick, who talked about getting into schools. It is not enough to lock up young people who commit offences without dealing with the causes that lead them to do so. What will be provided to deal with the problems? Many noble Lords made that point about what actually happens to people who are in prison for short sentences.

I agree with the comments of the noble Lord, Lord Deben, about how this provision got into the Bill in the first place in the Commons. It came in very late. That is regrettable. I also agree with the comments of the noble Lord, Lord Blair.

As my title indicates, I grew up in Southwark, on a council estate. I was very happy there. I do some work with a local charity working with kids on council estates all over the borough and the neighbouring borough of Lambeth. It seeks to get kids to play football together. You can hardly fight as you play football together. I recently spent some time with the charity. I was shocked and depressed by how much depended on the estate you lived on, so that when you walked home if you walked a certain route, you would have real problems. I met one young lad who lived on the Wyndham estate, right next to my primary school. The estate is 50 yards from the borough of Lambeth, but he told me that he never walked across into the borough because he was scared. He would never cross the road. I could not believe that—it is an absolutely shocking situation. We have to deal with those problems.

The charity organised a World Cup in Kennington Park, and it got different council estates and different nationalities playing football together—meeting up and playing football together rather than fighting each other in the evenings. That was fantastic. This chap does all this work, with virtually no funding from the local authority, from the Government or from anybody. It is fantastic. These are the sort of things that we would all agree need our full support.

My response to the noble Lord, Lord Paddick, is that I agree with the noble and learned Lord, Lord Mackay—this is about a deterrent which will keep people out of prison. We are not actually sending people to prison. I also agree with many of the comments of my noble friend Lady Howells and the noble Baroness, Lady Berridge. However, I am confused about the Liberal Democrat position. I mentioned in my speech at Second Reading that in the LASPO Act, the Liberal Democrats supported mandatory sentences for carrying a threatening or offensive weapon. The question was raised recently in the Commons and an amendment agreed without a Division. There is now an offence of carrying an offensive weapon in public with a mandatory maximum sentence of four years. I find that a bit odd in terms of what comments I have heard and taken note of from the Liberal Democrat Benches.

Photo of Lord Faulks Lord Faulks The Minister of State, Ministry of Justice 4:30 pm, 21st July 2014

My Lords, Clause 25 would put in place a minimum custodial sentence of six months’ imprisonment for adults and a four-month detention and training order for 16 and 17 year-olds where an offender has committed a second or subsequent offence of possession of a knife or offensive weapon, unless there are particular circumstances that would make it unjust to do so. The clause also provides for a previous conviction of threatening with a knife or offensive weapon to count as a first strike.

Clause 25 was passed into the Bill in the other place and is now being consideredby your Lordships’ Committee. The coalition Government are fully committed to ensuring that the public are protected. However, policy agreement has not been reached on this clause, and so it will be for the whole Committee to decide the issue. In these circumstances, noble Lords will understand why I am unable to answer many of the questions about the proper construction of the relevant clause, although I think I can simply draw the attention of those who have not had a chance to study it in detail to the fact that the initial offence has to be,

“without lawful authority or reasonable excuse”.

Then discretion is given with the words,

“unless the court is of the opinion that there are particular circumstances which … (a) relate to the offence or to the offender, and … (b) would make it unjust to do so in all the circumstances”.

The only other point that I make at this stage is that a number of noble Lords made the point that short sentences were not effective. I simply remind the Committee that only this year we passed an important Act which provided, for the first time, that those sentenced to less than 12 months would receive support in the community and support before leaving prison to assist in the resettlement process.

Photo of Lord Foulkes of Cumnock Lord Foulkes of Cumnock Labour

I am completely confused as to who the Minister is speaking on behalf of. Is he speaking on behalf of the Government, the Conservative Party or the group of people who put the clause in the Bill? How are we therefore to treat his remarks? Is it to be a regular occurrence that we get Ministers coming to the Dispatch Box who are not speaking on behalf of this great coalition?

Photo of Lord Faulks Lord Faulks The Minister of State, Ministry of Justice

I hope it will not be a regular occurrence. I am endeavouring, in my short remarks, to assist the Committee as a whole on matters of construction but not to persuade it in one direction or another.

Photo of Lord Richard Lord Richard Labour

Is the Minister speaking for the Government or is he merely putting this before the Committee, so to speak, as a debating issue, which we can all have a go at and then come to a conclusion on?

Photo of Lord Faulks Lord Faulks The Minister of State, Ministry of Justice

I am putting this before the Committee in circumstances in which, as I think the noble Lord well knows, a compromise has been reached.

Photo of Lord Deben Lord Deben Conservative

Does my noble friend agree that this is too important an issue for it to become a kind of joke measure for those who wish to make other party-political points? We ought to consider this seriously, in the way it ought to be considered, and make our own decisions according to the facts.

Photo of Lord Faulks Lord Faulks The Minister of State, Ministry of Justice

I agree with my noble friend that it should be considered seriously and a judgment exercised by the Committee as to what it thinks the appropriate response to this particular clause is.

Photo of Lord Reid of Cardowan Lord Reid of Cardowan Labour

I am grateful to the Minister. Whoever he is speaking on behalf of, he should regard me as a floating voter. I came in with my mind pretty well made up to support the clause, whoever’s it is—I was going to say it was the Government’s.

However, I had the misfortune to sit next to my noble and learned friend Lady Scotland, who gave me an enlightened commentary to supplement everything that was being said and tried, as she did when she was my Minister in the Home Office, to soften my hard heart on this issue.

Subject to the response to one question asked by my noble and learned friend, I am still inclined to vote with whatever entity is in favour of the clause. I hope the Minister can answer the question and help me decide. What consideration was given to outlining this in sentencing guidelines, without the need to put it in the Bill? I am not suggesting for a minute that judges always follow sentencing guidelines. Indeed, the Committee may be amused to learn that when we put forward sentencing guidelines to diminish hugely the number of four and six-month sentences when we were bringing in indeterminate sentences at the other end, judges proved very reluctant not to send people to jail. It was suggested to me by the Lord Chief Justice at a meeting of the Criminal Justice Board that I should write and remind them of that. When I did, I was massacred in public for suggesting that judges may not need to send people to jail. I understand that they do not have to follow guidelines, but I hope the Minister has had time to consult his notes and to let us know whether, before going to the mandatory statutory sentence, such a course of action was considered, as my noble and learned friend asked.

Photo of Lord Faulks Lord Faulks The Minister of State, Ministry of Justice

Before the noble Lord’s intervention, I was going to conclude by saying that this is not a clause that could ultimately find its way to the statute book. If the vote results in the Bill remaining in its current form, the Government will bring back amendments to make various alterations—not to the effect or the substance, but to the detail—and in particular to make sure that the provision is consistent with the sentencing framework as a whole. There are also various other technical amendments that will have to be made.

Photo of Lord Reid of Cardowan Lord Reid of Cardowan Labour

I am not a lawyer or a civil servant draftsman. Does that mean that if this clause is agreed to, the Government will come back with guidelines, rather than putting it into the Bill? Is that my understanding, or have I got even more confused? Perhaps the Minister would explain.

Photo of Lord Faulks Lord Faulks The Minister of State, Ministry of Justice

It is not a question of guidelines; there are a number of particular defects in the clause. For example, it would be necessary to fix the period for appealing a minimum sentence if a previous conviction upon which the minimum sentence is based is overturned. The period should be fixed at 28 days to ensure consistency. Furthermore, it is not clear in the current draft that the Attorney-General would be able to make a reference on the basis of a court’s failure to impose a minimum sentence, and the usual practice in relation to early guilty pleas for minimum sentences is a reduction of up to 20%. As currently drafted, the court would not be able to apply any discount for an early guilty plea. It is also necessary to add equivalent offences under UK and EU member state service laws to relevant previous convictions.

Photo of Baroness Kennedy of The Shaws Baroness Kennedy of The Shaws Labour

If the Government have so many reservations about this clause, surely their position should be to oppose it. The Government’s position at this stage should be to say that they think the Committee should look closely at this clause because they are not happy with it. Surely that should be the Government’s position.

Photo of Lord Faulks Lord Faulks The Minister of State, Ministry of Justice

The Committee is looking carefully at the clause. I have endeavoured to assist with various questions to indicate that certain technical amendments would have to be made, which would not alter the fundamental purpose behind the clause, but would nevertheless make it more satisfactory.

Photo of Lord Deben Lord Deben Conservative

Would it help the Government if we voted this clause down? They could then produce a clause that was satisfactory and would listen to what the Committee had said.

Photo of Lord Cormack Lord Cormack Conservative

Why have a vote at all? We are in Committee and the Bill will then be on Report. At that stage, the Government can tell us what sensible amendments they wish to move. Some of us have been whipped to come this afternoon—and I always treat Whips with great discernment—but what is the point in voting this afternoon?

Photo of Lord Carlile of Berriew Lord Carlile of Berriew Liberal Democrat

Can my noble friend elucidate for those Liberal Democrats who are unaccustomed to taking part in plots organised by the Chief Whip of the Liberal Democrats—I claim to be one of them—and answer the question of the noble Lord, Lord Reid? Why is this issue not better dealt with by sentencing guidelines, which can be changed from time to time to meet the circumstances that the courts have to face on a regular basis, rather than by using this clumsy statutory provision, which is not in a fit form to enact in any event?

Photo of Lord Harris of Haringey Lord Harris of Haringey Labour

My Lords, I have listened to this debate for the last hour and a half and was almost looking forward to the Minister’s response. Some serious issues have been raised during the course of this debate which deserve an answer on behalf of the Government. As I understand the position—and I have got more rather than less confused as the afternoon has worn on—we are about to have put before us the Motion than the clause should stand part of the Bill.

If we were to agree with the noble Lord, Lord Marks, we would presumably vote not content. Presumably, too, the Government and possibly the Opposition have whipped all the noble Lords here to vote content—that we want the clause. Therefore, before we vote on the matter, it is really important that some of the issues that have been raised are addressed by your Lordships’ House with the authority of the Government saying what their responses are.

For example, one point that exercises me is the question of why it is thought that this might have a deterrent effect on young boys who act largely on impulse. I appreciate that the Government do not want—or the Minister does not, on behalf of whatever entity he is speaking—to express a firm view. However, he could share with the House the research work that no doubt different government departments have conducted on what constitutes a deterrent effect on young men and whether the clause, as drafted, conceivably delivers such an effect.

Photo of The Earl of Listowel The Earl of Listowel Crossbench

My Lords, I apologise for prolonging this still further. Following the noble Lord, Lord Harris of Haringey, I was grateful to the Minister for his response but the concern about the criminalisation of young people in care is very serious. It is one of the two main agenda items for the new chair of the Youth Justice Board, the noble Lord, Lord McNally. He is very concerned particularly that so many young people from children’s homes enter the criminal justice system. It would be helpful as background to the Bill to have some warning as to what if any impact this clause, if accepted, would have on the number of young people from care coming into custody.

Photo of Lord Faulks Lord Faulks The Minister of State, Ministry of Justice

There were quite a number of interventions. I will endeavour, very briefly, to say what I can within the terms that I speak today. On the question of sentencing guidelines, they are of course changed from time to time. It is a matter for the House to consider whether sentencing guidelines are an appropriate way to deal with this or whether it is more appropriate to use the clause as it currently appears in the Bill—whether that is called sending out a message, providing a deterrent or whatever construction one places upon that particular clause.

As to all the other matters, there is no question of a Liberal Democrat plot. I readily concede that this is an unusual situation. However, I am simply not in a position to say more than I have in answer to the various questions raised, except to say this: the issue for the House is fairly before the House, as brought by my noble friend Lord Marks, and it is whether the clause currently in the Bill should stand part.

Photo of Lord Marks of Henley-on-Thames Lord Marks of Henley-on-Thames Liberal Democrat

My Lords, this has been an important debate. It has been a serious and sober debate. I agree with the noble and learned Baroness, Lady Scotland, on that point. It has also not been a political debate in the sense that noble Lords on all sides have spoken both ways. My understanding of the Government’s position is that the position of Conservative Ministers remains as it was in the House of Commons; they will not support the clause as it stands, as inserted by the Back-Bench amendment; nor will they oppose it.

However, the position is that everyone in this House is agreed that we cannot, do not and never will condone knife crime. We all share the aim of driving knife crime down. I listened carefully to the points made, particularly those made by my noble and learned friend Lord Mackay of Clashfern, the noble and learned Lord, Lord Hope, and the noble Lord, Lord Blair. All of them of course have enormous experience of the criminal justice system. Other noble and learned Lords, notably the noble and learned Lord, Lord Woolf, spoke the other way.

The points made against me and in favour of Clause 25 principally concern deterrents and sending a message. However, what has been entirely unclear is the notion that there is clear evidence that a message and deterrence are better sent by a mandatory provision in a statute than they could be by judges exercising their discretion—going on television if necessary, as the noble and learned Lord, Lord Hope, described; by action outside Parliament, as the noble Lord, Lord Purvis described; or by sentencing guidelines, as the noble and learned Baroness, Lady Scotland, suggested, supported by the noble Lord, Lord Carlile.

Sentencing guidelines are daily used and daily applied, but they do not remove judicial discretion to sentence appropriately, departing from the guidelines where that is the right and just thing to do. I do not believe that deterrence by a mandatory provision in a statute is proven to have any beneficial effect at all. I believe that a mandatory provision for minimum sentences in a statute, to be imposed where judges would not—when wishing to do justice—otherwise impose them, removes judicial discretion and inevitably does injustice in a number of cases. For those reasons we oppose this clause.

Your Lordships have also heard the extent to which the clause is defective. It is not supported by either of the parties of Government. It is not supported by many of great experience who have spoken from the opposition Benches. It is not supported by many of those who have spoken from the Cross Benches. The Motion will be that this clause stands part of the Bill. I urge noble Lords to oppose the Motion and vote not content. I wish to test the opinion of the House.

Division on Clause 25

Contents 228; Not-Contents 159.

Clause 25 agreed.

Division number 1 Criminal Justice and Courts Bill — Committee (2nd Day)

Aye: 226 Members of the House of Lords

No: 157 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Clause 26 agreed.

Amendment 35A

Moved by Lord Beecham

35A: After Clause 26, insert the following new Clause—

“Offence of driving while disqualified to be triable either way

(1) In Part 1 of Schedule 2 to the Road Traffic Offenders Act 1988 (prosecution and punishment of offences under the Traffic Acts) in the entry relating to the offence of obtaining licence, or driving, while disqualified, section 103(1)(b) of the Road Traffic Act 1988—

(a) in column 3, for “6 months” substitute “12 months”;

(b) in column 2, after paragraph (c) insert—

“(d) On indictment, in England and Wales”; and

(c) in column 3, after paragraph (c) insert—

“(d) 2 years or a fine or both”.

(2) In relation to an offence committed before section 154(1) of the Criminal Justice Act 2003 comes into force, the reference to 12 months is to be read as being a reference to six months.

(3) The amendment made by this section applies only in relation to an offence committed on or after the day on which it comes into force.”

Photo of Lord Beecham Lord Beecham Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Justice) 5:01 pm, 21st July 2014

My Lords, after the late excitement, we come to the more mundane world of driving while disqualified.

Clause 26, which we do not oppose, deals with what might be described only as another Grayling gimmick: the imposition of a maximum 10-year sentence for causing death while driving when disqualified—not for causing death through dangerous or careless driving while disqualified but for causing death while driving when disqualified. It is a measure of the significance of the amendment that there were 13 convictions in the past year for the offence of causing death when driving while disqualified or without insurance or a licence. This was not really a major problem. What the Government failed to do was to consider the real problem of the number of members of the public who drive while disqualified whether or not they are involved in other road traffic offences, particularly offences which cause injury. It is that problem with which this amendment deals. The current situation is that the maximum sentence is six months’ imprisonment only.

The question of causing death while driving under disqualification, now to attract a 10-year sentence, stands oddly with a five-year maximum sentence for causing death by careless driving and a two-year sentence for causing death while driving without a licence. Some 7,000 people are convicted every year for driving while disqualified. In my submission and that of the Opposition the sentence of six months is clearly inadequate for that offence. The amendment therefore proposes that the offence should carry a maximum of two years’ imprisonment and be treated as either way: it could be tried in a magistrates’ court or a higher court if necessary. That seems an appropriate way of dealing with an offence of this kind and I hope that the Government will reflect on it and accept the suggestion, if not today then on Report. We must do something to discourage the prevalence of the serious offence of driving while disqualified. At the moment, particularly given the very substantial sentence imposed under Clause 26, that looks inadequate and needs to be remedied. I beg to move.

Photo of Lord Faulks Lord Faulks The Minister of State, Ministry of Justice

My Lords, this amendment, as the noble Lord, Lord Beecham, has explained, would make the current summary-only offence of driving while disqualified an either-way offence. That would mean that the offence, currently dealt with by magistrates, could also be tried by the Crown Court with a jury, and the Crown Court would have a maximum penalty of two years’ imprisonment available. I know that an identical amendment was tabled on Report in the other place, but let me explain what the Government propose to do in relation to driving offences.

This Bill already contains proposals, welcomed from all sides, to increase the maximum penalty for causing death by driving while disqualified to 10 years’ imprisonment and to create a new offence of causing serious injury while driving while disqualified with a maximum penalty of four years. That was a pressing issue which the Government wanted to address, and we have done so in this Bill.

I agree with the noble Lord, Lord Beecham, and the question of disqualified drivers generally is of concern to the Government and all in this House. We want to ensure that we are doing what we can to keep our roads safe. Those who are disqualified from driving should not be on the road, and those who flout the law should be dealt with appropriately by the courts. I stress that where a person decides to drive when they have been disqualified and their driving is also bad, the CPS has a range of other offences it can charge—for example, dangerous driving, which is already an either-way offence with a maximum penalty of two years’ imprisonment.

However, the Government are not ruling out doing exactly what the amendment seeks to achieve. We have already made it clear that we will carry out a wider review of the offences and penalties for driving offences over the coming months. We want to look at the sentencing framework for driving offences as a whole and to address the various concerns that I know many noble Lords and the public have about specific aspects of the law in this area.

I know that my right honourable friend Jeremy Wright has already made it clear that the review would look at the specific issue of driving while disqualified. We also want to look at the most effective ways of ensuring that repeat offenders are prevented from driving and do not pose a risk to the public in future.

Noble Lords will recognise that while we can make changes to specific offences where there is a pressing need to correct a gap in the law, as we have done with the causing death and serious injury offences, looking at the wider range of offences and the rationale for the entire sentencing framework needs careful consideration and should be done over a longer period.

I hope that my undertaking that the Government are looking at the driving while disqualified offence in the wider context of its relation to other offences and sanctions will reassure the noble Lord, and that he will feel able to withdraw this amendment.

Photo of Lord Beecham Lord Beecham Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Justice)

I am grateful for the Minister’s indication. What he said underlines the legitimacy of the charge of gesture politics laid at the door of the Secretary of State, because he said that there is now to be an intensive review of the range of driving offences. It is absolutely right that that should be the case, but for an offence that was committed 13 times last year it was found necessary to amend the Bill in advance of the review to which the Minister referred. It is lamentable that Parliament, and this Bill in particular, should be used to make a mere gesture of that kind when the Government have already decided upon a proper, thorough review of these serious matters. Having said that, the assurance that the Minister has given satisfies me and the Opposition. I beg leave to withdraw the amendment.

Amendment 35A withdrawn.

Schedule 4 agreed.

Clause 27 agreed.

Amendment 36

Moved by Lord Faulks

36: After Clause 27, insert the following new Clause—

“Meeting a child following sexual grooming etc

(1) In section 15(1)(a) of the Sexual Offences Act 2003 (meeting a child following sexual grooming etc), for “on at least two occasions” substitute “on one or more occasions”.

(2) In a case in which person A met or communicated with person B only once before the event mentioned in section 15(1)(a)(i) to (iii) of the Sexual Offences Act 2003, an offence under that section is committed only if the meeting or communication took place after this section comes into force.”

Photo of Lord Faulks Lord Faulks The Minister of State, Ministry of Justice

My Lords, this Government, and I know this House, are committed to doing their utmost to protect children from the scourge of sexual abuse. There is unity across Parliament in that regard.

Amendment 36 amends the grooming offence at Section 15 of the Sexual Offences Act 2003. It has been prompted by the sterling work of the cross-party inquiry into the effectiveness of legislation for tackling child sexual exploitation and trafficking within the UK. The inquiry was supported by the children’s charity, Barnardo’s, and chaired by the honourable Member for Rotherham, Sarah Champion MP, and the Government are very grateful to everybody who contributed.

While the report concluded that the Sexual Offences Act 2003 is generally fit for purpose, it identified a small number of amendments which would improve enforcement of specific offences, including the offence of grooming. Under the current law, a person is guilty of grooming if he or she meets or communicates with a child on at least two occasions, and subsequently they meet or arrange to meet the child, or they or the child travel to meet the other. The defendant must intend, either during or after the meeting, to commit a sexual offence against the child. It is the part of the offence which specifies that there must be two initial contacts between offender and child which is now problematic and which this amendment seeks to address.

Sarah Champion sought to deal with this issue through the amendments she tabled in the other place. She withdrew those amendments after we committed to look closely at this issue. Having considered the evidence and her representations carefully, the Government are persuaded that change is now needed.

At the time of its creation, the original offence was designed to tackle a relatively new pattern of behaviour that we commonly thought of as grooming. The aim was to protect children who may be contacted by adults repeatedly over a period of time to build their trust with the intention of subjecting them to sexual abuse in future. However, with the development of new technology and better, faster and simpler forms of communication including chat rooms and social media sites, it is easier for offenders to make contact with their victims and build their trust relatively quickly. The inquiry heard evidence that contact sexual offending against a child can now occur following just one communication or meeting. For example, the Child Exploitation and Online Protection Centre, CEOP, reported in 2013 that online child sexual exploitation has shifted in its nature, with the time between initial contact and offending behaviour often extremely short and characterised by rapid escalation to threats and intimidation. It describes a “scattergun” approach taken by perpetrators, who target a large number of potential victims. Even if they are ignored by the vast majority of children whom they target, they focus their efforts on the small number who respond positively to their communications. These views were echoed in oral evidence given to the inquiry by the police.

This amendment will therefore amend the grooming offence so that the number of initial occasions on which the defendant must meet or communicate with the child in question is reduced from two to one. This will permit more effective intervention by the police in relation to individuals who could otherwise have been prosecuted only when a second contact had been established, and in certain cases might prevent the sexual contact element of the offence occurring. It will also bring the offence in England and Wales into closer line with the equivalent Scottish offence, which requires only one initial contact.

More widely, the amendment will support the work being undertaken across government to tackle the sexual exploitation of children. My honourable friend the Minister for Crime Prevention, Norman Baker MP, is leading the Sexual Violence against Children and Vulnerable People national group. This panel of experts was brought together by the Home Office to co-ordinate and implement the learning from recent inquiries into historical sexual abuse and current sexual exploitation cases and issues around sexual violence more widely. Amendment 88 updates the long title of the Bill to reflect this change. For those reasons, I beg to move.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Crossbench 5:15 pm, 21st July 2014

My Lords, this is an extremely sensible amendment. I rise on behalf of Barnardo’s to express its very real thanks, which I share, for the amendment that the Government are putting forward.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

My Lords, as a member of Barnardo’s, I am delighted on this occasion to be able to agree with my noble and learned friend.

Photo of Baroness Thornton Baroness Thornton Shadow Spokesperson (Equalities and Women's Issues)

My Lords, we on these Benches welcome the amendment. I welcome it personally because I took part in the debates in 2003 on the Sexual Offences Act and argued this case on behalf of Barnardo’s, Action for Children, the NSPCC and ECPAT. All the voluntary organisations concerned with child safety had already realised that the law would increasingly not cover the issue of the threat to children through new media. I thank Barnardo’s for its excellent briefing on this, my honourable friend Sarah Champion for leading such an excellent review of the law and the Government for bringing forward the amendment.

Photo of Lord Faulks Lord Faulks The Minister of State, Ministry of Justice

I am grateful for those brief but welcome interventions by a number of noble Lords, not least of course the noble Baroness, Lady Thornton, whose own interests in this matter she correctly recorded. I am grateful for that short debate. That concludes the debate on this issue.

Amendment 36 agreed.

Clause 28: Possession of pornographic images of rape and assault by penetration

Amendment 36A

Moved by Baroness Thornton

36A: Clause 28, page 28, leave out lines 1 and 2

Photo of Baroness Thornton Baroness Thornton Shadow Spokesperson (Equalities and Women's Issues)

My Lords, I am pleased to introduce a group of amendments that seek to tighten up Clause 28 and make it more effective. I welcome the clause, as I did at Second Reading. We on these Benches definitely welcome the Government’s efforts in this regard but think that there are some issues that need to be taken account of.

I place on record my thanks to Professors Rackley and McGlynn of Durham University for making their research and commentary available to us all, and to End Violence Against Women for its briefing and campaign. I also thank the British Board of Film Classification for coming to the House last week and giving a presentation—which, it has to be said, at times was really rather horrible—to explain how and why it sometimes does not give a classification to rape and extreme pornography. Several noble Lords attended the presentation, and I think that we all now have a greater understanding of where Clause 28 might not quite do the job that the Government intend. This particularly concerns the issue of context, definitions of penetration and realistic rape. I thank the Minister for his time in starting the discussion about these matters, and have suggested that he and the Bill team might also get the BBFC to come and discuss this clause with them; it is not a pleasant experience but it is very enlightening indeed.

I turn to the amendments. Amendment 36A would remove the requirement that the image be grossly offensive, disgusting or otherwise of an obscene character. The current law provides that for an image to be “extreme”, it must also be,

“grossly offensive, disgusting or otherwise of an obscene character”.

The current amendment would preserve this provision. We urge reconsideration of the use of language regarding obscenity. The use of the term “obscene” has long been criticised on the basis that it is typically deployed to capture material that is not only harmful but causes offence and disgust, and is typically focused on the impact on the consumer of material, rather than the wider consideration of harm, which is what this clause is actually about. We suggest that the Government should explore whether their description is compatible with justifying the original Clause 28 on the basis of cultural harm, not obscenity. We also contend that the criminal law is not used to prohibit material on the basis that it is considered disgusting. We recommend, therefore, the removal of the requirement that an image be,

“grossly offensive, disgusting or otherwise of an obscene character”.

Amendment 36B deletes lines 6 to 42, and the following amendments in the group would replace them. Amendment 36B would replace the existing language of the offence, and state that an image would be covered by this clause if it portrayed,

“sexual activity which involves real or apparent lack of consent or any form of physical restraint which prevents participants from indicating a withdrawal of consent”.

Amendment 36C seeks to clarify the definition of a realistic image, and would replace the requirement that the image portrays rape and assault,

“in an explicit and realistic way”,

with a requirement that the image be of,

“real or simulated depictions of”,

rape and assault by penetration.

The requirement that an image is “realistic” does not require the act depicted to be real, although we know that the clause seeks to cover real rape that has been filmed and made available to people. This is why the law refers to images which are “realistic”, meaning those that resemble or simulate real life. The use of the term “realistic” also mirrors international provisions on pornography, which similarly include real and simulated images. Article 9 of the Council of Europe Convention on Cybercrime 2001, on,

“Offences related to child pornography”,

extends to “realistic images”. The notes in our briefing tell us about the inclusion of real and simulated images.

The current laws on extreme pornography, and the proposed new provision, thus cover both real and simulated images. There is little doubt that Section 63(7)(c) of the Criminal Justice and Immigration Act extends to include “realistic” images of necrophilia where the

“dead” person is not in fact dead. Similarly, in the proposed new law, a “realistic” explicit image of rape and/or assault by penetration—that is, an image of a simulated rape—should be covered by our amendment. However, in view of the fact that there has been some debate over the meaning of “realistic”, we suggest that this amendment is included in the Bill for the avoidance of doubt. Obviously, in all these amendments, if the Minister has something better to suggest, that would be even more wonderful. An amendment to the effect I have described was moved and discussed in the House of Commons Public Bill Committee. However, it was withdrawn in light of an explanation that the Bill’s Explanatory Notes would clarify that the offence would,

“cover both staged and real depictions of rape or other penetration”.—[ Official Report , Commons, Criminal Justice and Courts Bill Committee, 18/3/14; col. 215.]

This assurance is not sufficient and, for the purposes of clarity, we would much rather see this made clear in the Bill

Amendment 36D would provide that an image would be caught by Clause 28 if it portrayed any sexual activity which involving real or apparent lack of consent. This is also covered by Amendment 36B. This is an important clarification because, as the BBFC showed noble Lords last week, it is possible to have an image that does not involve anyone else except, for example, a woman and no penetration but, because of the depiction and what is being done by binding, gagging, other positioning or other horrible things, this is definitely sexual activity and there is a lack of consent, whether real or apparent. In the terms that the Government have used to justify this clause, the cultural harm of depiction of rape and non-consensual sexual activity would appear to be covered by our amendment. I ask the Minister seriously to consider it.

Amendment 36E would provide that possession of an image of sexual activity would be caught by Clause 28 if it fulfils certain criteria. It refers to sexual activity where a participant,

“is portrayed in such a way as to make them appear under 18”; where a participant is,

“with someone who is depicted as a member of their immediate family; and … sexual activity incorporating sexual threats, humiliation or abuse”,

which are not part of a “consenting role-playing game”.

Amendment 36F would ensure that the context of an image—the descriptions and sounds accompanying it—is considered when determining whether it is extreme. The BBFC gave us an insight into the need to take context into account, which might include grooming, stalking or other kinds of threatening behaviour that leave no doubt as to what is happening or what is about to happen. Music, sounds, text and banner headlines would also be captured by this amendment.

I ask the Minister to see these amendments in the light in which they are proposed, which is to help to make the clause work better. I beg to move.

Photo of Lord Colwyn Lord Colwyn Deputy Chairman of Committees, Deputy Speaker (Lords)

I remind the Committee that if Amendment 36B is agreed to, I cannot call Amendments 36C to 36F; if Amendment 36C is agreed to, I cannot call Amendment 36D; and if Amendment 36D is agreed to, I cannot call Amendment 36E, all by reason of pre-emption.

Photo of Baroness Howe of Idlicote Baroness Howe of Idlicote Crossbench

My Lords, I thank the noble Baroness, Lady Thornton, for her amendments to Clause 28, because it is clearly very important we get this right. In particular, I support the principle of Amendment 36C, which clarifies that the images can be “real or simulated”. I know the Government have amended the Explanatory Notes to clarify this point, but it seems to me that what is in the statute will be the key issue when the case is before the courts. With the increasing use of computer-generated images, surely it is right for us to clarify that these images are covered. The importance of such clarification is made in relation to children in the Protection of Children Act 1978 with the definition of “pseudo-photographs”. Why should a similar clarification of “real or simulated” not be made here when we are dealing with extreme pornographic images?

Photo of Baroness Barker Baroness Barker Liberal Democrat

My Lords, I thank the noble Baroness, Lady Thornton, for explaining to the Committee the details of the meeting that a number of us attended last week. It was one of the most horrible meetings I have ever had to attend, but it was extremely informative. It showed the way the BBFC very diligently performs its role and achieves what most people in Britain want to see: it enables adults to view as much as they could possibly wish to—provided that it does not harm anybody else—but it is quite clear in the classification of materials and tries to limit those materials to which it would be preferable that there was no access.

The noble Baroness, Lady Howe, is absolutely right—she has much more experience of dealing with these matters than many of the rest of us. The key factor we kept coming back to was whether something was real or realistic or could be assumed to be real for a number of reasons. We were shown a particularly horrible image that was a cartoon. There was no way that anybody could view it and consider it to be real, but what it showed was truly gruesome. In the end the BBFC had not classified it.

The Minister may say there are different elements in these amendments that are technically deficient. However, I hope that he might be able to accept some of the points being made. This is a work in progress. The way the internet is taking over this form of very adult entertainment is still unfolding; the law is clearly currently way behind the producers of it and needs to be changed. This may not be the definitive answer, but the noble Baroness, Lady Thornton, has put forward some very helpful suggestions.

Photo of Lord Faulks Lord Faulks The Minister of State, Ministry of Justice 5:30 pm, 21st July 2014

My Lords, I am grateful for the concern shown by the noble Baroness, Lady Thornton, and other noble Lords over these important provisions, which criminalise the possession of extreme pornographic images depicting rape. I appreciate that the intention behind the amendments is to ensure that we capture the appropriate material.

I also thank the noble Baroness, Lady Thornton, for meeting me, just as she thanked me for meeting her, to discuss these amendments. I was not invited to attend the BBFC meeting. I gather that it was a pretty horrific event, but clearly it has influenced all those who attended and I am mindful of that when considering the amendments.

I assure the Committee that I am aware of the sensitivities involved when discussing the sort of images that we are targeting. These images are at the extreme end of the scale and are most disturbing. Alongside the images targeted, however, there are of course depictions that, while deeply distasteful, might not warrant the full intervention of the criminal law. It is a difficult area but we must ensure that our distaste at some of this material is balanced, rightly, against the legitimate personal sexual freedoms of consenting adults.

Before I address the amendments, I should like to provide some background to the law as it currently stands and our proposals for reform. First, I should make it absolutely clear that the extreme pornography offence is an offence of simple possession, not one of publication, dissemination or broadcast. That is already covered by the Obscene Publications Act 1959. Section 63 of the Criminal Justice and Immigration Act 2008 makes it an offence to possess some kinds of obscene images. Such images must be pornographic and must explicitly and realistically portray necrophilia, bestiality or violence that is life-threatening or likely to result in serious injury to the anus, breasts or genitals. Clause 28 amends that category of material to include depictions of non-consensual penetration.

The offence was created following a full public consultation. There was considerable concern among respondents, and during the passage of the legislation through the other place, that the offence could have an unwarranted impact on the private sexual behaviour and personal freedoms of fully consenting adults. The offence was deliberately drafted with those sensitivities in mind, and I believe we should bear those in mind here. The offence targets only the most extreme obscene material—for example, images depicting extreme sexual violence and serious physical harm. It was not designed to make it criminal merely to possess every obscene image, however distasteful, although, as I have mentioned, the dissemination of that material will be an offence.

Last year, the Government were contacted by a campaign led by Rape Crisis South London and other women’s groups to extend the existing boundaries of the extreme pornography offence to capture extreme images depicting rape in the same terms as the equivalent Scottish offence. The Government listened to those concerns and agreed to extend the offence.

Against that background, I now turn to consider the amendments in question. Amendment 36A would remove the requirement that images of non-consensual sexual penetration be,

“grossly offensive, disgusting or otherwise of an obscene character”,

in order to be regarded as extreme pornography. Those terms are already well known to prosecutors and courts alike. They were drafted deliberately into the offence, and included in our amendment to that original offence, to ensure that the extreme pornography offence does not criminalise the simple possession of the sorts of images that it would not be illegal to circulate or distribute. To remove this necessity would be inconsistent with other aspects of the criminal law and would result in a possession offence that is too broad.

For convenience, I shall deal with Amendments 36B and 36D together, as they have similar, although not identical, effects. Amendment 36B would replace the

Government’s amendments to the extreme pornography offence, including the relevant defence, with a broad provision that would criminalise the portrayal of any sexual activity that involves real or apparent lack of consent or any form of physical restraint which prevents participants indicating a withdrawal of consent. This is very broad. It could have the effect of bringing into the terms of this targeted offence the possession of pornographic images that depict any form of non-consensual sexual activity.

In the light of the balance that this Government have sought to strike with this offence, we believe that such an extension to the offence would be going too far. It would, I believe, widen inappropriately its scope and could make too wide a range of sexual activity subject to serious criminal sanction.

Amendment 36D also seeks to extend the parameters of the existing offence but would retain the necessity that the material be “explicit and realistic”. However, it would still extend the parameters of the offence too far and could capture a wide spectrum of sexual contact.

Amendment 36C seeks to explore the issue raised both at Second Reading and in the other place about the ability of the offence to deal with simulated rape scenes. I assure your Lordships that our provisions as they stand are already capable of covering the depiction of real or simulated non-consensual penetration. Both the amendment and the existing offence cover any portrayal or depiction of the acts in question. While the requirement is that the portrayal is realistic, it does not have to be real. As the noble Baroness, Lady Howe, mentioned, we have clarified this point in the Explanatory Notes to the Bill in response to these concerns.

Amendment 36E seeks to widen the scope of the existing offence to cover depictions that appear to portray incest, underage sexual activity and scenes involving sexual threats, humiliation or abuse. The protection of the country’s children from sexual abuse is a government priority. We have a robust range of offences and sanctions to deal with this truly dreadful offending, and it is a credit to the efforts of this House that our legislation in this area is rightly respected across the world. It is of course right that we keep the law in this area under review to ensure that it is fully equipped to protect our children.

Images of children are not specifically excluded from our extension of the extreme pornography offence, but we already have offences to cover the possession of indecent photographs and films of children. These offences have suitably robust sentencing levels and much lower thresholds in respect of the content of the images than the extreme pornography offence.

Finally, Amendment 36F would add to our provisions a requirement that, when evaluating images for the purposes of the offence, contextual material of certain kinds is taken into account. I appreciate that this reflects the drafting approach taken in the equivalent legislation in Scotland. However, we do not believe that the amendment is necessary: the court is already entitled to take into account all relevant evidence in determining whether material meets, or indeed does not meet, the requirements of the extreme pornography offence. Prosecutors and the courts already take the “context” of images into account when considering the existing extreme pornography offence. I hope that provides some reassurance to the noble Baroness.

The extension of this offence is well structured to ensure that the images we wish to capture fall within its parameters. The extension is in the spirit of the original offence and balances the need to criminalise the most extreme and potentially harmful or damaging material with the need to protect the lawful sexual freedoms and rights of others. Given the sensitivities involved, that balance has not been easy to achieve but I believe that we have achieved it with this reasonable, proportionate and important provision.

For those reasons, while I entirely understand the concerns expressed, the Government do not feel able to support these amendments. I hope that, with those assurances, the noble Baroness will feel able to withdraw her amendment.

Photo of Baroness Thornton Baroness Thornton Shadow Spokesperson (Equalities and Women's Issues)

I thank the Minister for his considered, if somewhat disappointing, response. The point of the Committee stage of this sort of legislation—the House of Lords is particularly good at this—is to test whether this kind of clause does its job. I appreciate that the Minister thinks it does but I have to say that some of us think that one or two things in this clause need some attention. I am not going to delay the House any further by repeating what they are. The Minister said that the Government thought they had the balance right all the way through. I think there are one or two things to do with context that suggest the Government may not have got the balance right. We do not want to find ourselves in five years’ time with either no prosecutions because we did not get the balance right or with people not being prosecuted because we did not look at the things that experts are telling us are loopholes. Obviously I am happy to withdraw the amendment at this stage—apart from anything else I do not think it and my other amendments are as competent as they should be, for which I apologise—but I fear that we will be returning to this at a later stage in the Bill. I beg leave to withdraw the amendment.

Amendment 36A withdrawn.

Amendments 36B to 36F not moved.

Clause 28 agreed.

Amendment 37

Moved by Lord Marks of Henley-on-Thames

37: After Clause 28, insert the following new Clause—

“Offence of publishing a sexually explicit or pornographic image without consent

(1) A person commits an offence if they publish a sexually explicit or pornographic image of another identifiable person (whether or not that person is engaged in a sexual or pornographic act), unless—

(a) the identifiable person consented to publication;

(b) the person who published the image reasonably believed the identifiable person would have consented; or

(c) the person who published the image has reproduced an image that has already been published by another person.

(2) For the purposes of this section it is immaterial who owns the copyright of the published image.

(3) In this section “publish” means to reproduce, share or otherwise distribute an image via the internet or other means.

(4) In this section a person is an “identifiable person” if—

(a) their face is displayed in the image;

(b) any other identifiable characteristics are displayed in the image;

(c) their name is displayed on, or otherwise connected to, the image; or

(d) the image contains any other information by which the identity or address of the person could reasonably be ascertained.”

Photo of Lord Marks of Henley-on-Thames Lord Marks of Henley-on-Thames Liberal Democrat

My Lords, the term “revenge pornography” refers to the publication, usually but not always, on the internet, of intimate images of former lovers without their consent. This thoroughly nasty behaviour generally involves the perpetrator in taking advantage of his or her possession of sexually explicit images, generally taken or obtained in private during the course of an intimate relationship in circumstances where the parties, and certainly the party photographed, had every right to expect that the images would remain private.

Obtaining such images has become more common and much easier with the prevalence, popularity and sophistication of smartphones, with their ability to take or record high quality images, still and video, instantly and simply, with accompanying sound in the case of video. It is set to become even easier to take such images with the advent of cameras installed in glasses and yet further improvement in high definition video cameras in phones.

The widespread publication of such images causes, and is generally intended to cause, distress, humiliation and embarrassment for the victim—hence the name “revenge porn”. She or he—the victims are usually but not exclusively women—face the humiliation of their most private moments being exposed to family, friends, employers and the world at large. It is entirely predictable that such exposure can cause serious psychological and emotional damage even to those with robust personalities. Suicides as a result of such publications have been recorded. Worse still, the damage may often be increased because it follows the trauma of relationship breakdown and is caused by someone with whom the victim had previously been close. Publication can cause havoc in personal and family relationships and in relationships at work. The betrayal and the hurt it causes could hardly be worse. Such behaviour has been characterised by academics in the field as a form of abuse and I suggest that such characterisation is entirely accurate.

I have no hesitation in concluding that this practice should be criminalised and in asking your Lordships to pass legislation accordingly. I was therefore extremely pleased that in response to our Second Reading debate my noble friend the Minister indicated that the Government would be open to amendments of this Bill to that effect. I was also delighted when my noble friends Lady Berridge and Lady Morris of Bolton laid their Amendment 40, which is also in this group. I hasten to add that in my view there is neither magic nor any monopoly of wisdom in any particular wording.

The point is to secure legislation to criminalise such behaviour with the most appropriate statutory language that can be found. I would mention, however, that I do have some concerns about my noble friends’ formulation of the proposed offence, to which I will come in a moment.

I will explain the draft clauses in our amendments. The offence would be committed by publication of an image that is sexually explicit or pornographic; the publication would have to be of an identifiable person as defined; it would have to be without the consent of that person or at least in circumstances where the perpetrator did not believe he had such consent; and the image must not have been published before. It would be a defence for the perpetrator to prove that he believed he had the consent of the person in the image or that the publication was unintentional. The offence would be triable either way and would carry a maximum sentence of 12 months imprisonment and/or a fine on indictment or six months and/or a fine on summary conviction.

The mischief to which these proposed clauses are directed is fairly and squarely the publication of the image. The criminal behaviour is the publication and the effects we seek to avoid are the hurt, humiliation and distress caused to the victim by such publication.

I have three doubts about the formulation of the offence proposed by my noble friends Lady Berridge and Lady Morris of Bolton. The first is that in their draft clause an offence would be committed only if the publisher intended that someone looking at the image did so for the purpose of obtaining sexual gratification. That may be an undesirable consequence of publication, but in our view such intention is irrelevant to the criminality of the publisher. What we wish to target is the humiliation of the victim and that is the same whether or not there is any intention of affording sexual gratification to third parties.

Our second concern is that for the offence to be committed under their formulation it would be necessary for the image to portray the person portrayed in it doing a private act, defined as a sexual act not of a kind ordinarily done in public. For an image to cause real distress, it is not necessary for the subject of the image to be actually engaged in a private act. The fact of being exposed naked or semi-naked in a compromising position or in compromising circumstances may be just as devastating. It does not seem to us that a sexual act should have to be portrayed in the image before an offence could be committed.

Finally, and I accept less importantly, we are not convinced that it should be necessary for the person in the image to be exposed or semi-exposed in the way described in my noble friends’ proposed new subsection (3)(c)(i) for an offence to be committed. While I can see that an image of a person not so exposed is unlikely to be reasonably classifiable as sexually explicit, I am not sure that can be ruled out and I suggest the requirement is unnecessary.

However, the important thing is to secure the criminalisation of this behaviour. Long gone are the days when we should regard physical harm as a necessary ingredient of an offence against the person. The degree to which malicious individuals can hurt innocent victims by publication on the internet of images of their most intimate moments is ample justification, I suggest, for our invoking the criminal law to prevent and punish such behaviour. I beg to move.

Photo of Baroness Berridge Baroness Berridge Conservative 5:45 pm, 21st July 2014

My Lords, I rise to speak to Amendment 40 in this group. It seeks to introduce a new criminal but also sexual offence of posting on the internet what has been outlined as revenge pornography. This is one of those rare situations where I do not advise noble Lords to go on to the internet to look first-hand at these sites; they are truly appalling. As my noble friend Lord Marks has outlined, this is a growing problem that affects mainly women, particularly when naked or sexually explicit pictures or videos of them have been posted on the internet without their consent. Obviously these images are put online almost exclusively by ex-partners, and there is generally an intention—which is why our clause is drafted as it is—to sexually humiliate the former partner. Often the contact details of the victim as well as sexually abusive or malicious comments are added when the image is posted.

There are dedicated websites that are easily accessible; this is not a niche problem. The UK Safer Internet Centre, which is working in this area, has stated that some 20 to 30 websites in the United Kingdom are hosting this type of material. Apparently it has become a consumer product on pay-per-view. Many of the websites attract huge volumes of traffic, and the more often an image is looked at, the more likely it is that when you Google search your own name, the first thing that will come up in connection with your name is these images that have been posted, which is particularly degrading.

These are pictures that the victim may regret were taken in the first place, but, as my noble friend outlined, there would have been every expectation that they were private and would not be viewed, sometimes within days, by thousands of people on the internet, including perhaps work colleagues and friends at the school gate. Of course, the impact can be devastating. Victims have described that they feel like they have become a porn star without their knowledge or consent. There are also devastating impacts on employment prospects as well as on personal reputation and career.

This is another situation where the law has not quite kept pace with the internet. I am grateful for my noble friend’s contribution to the drafting of the proposed new clause, which is based on the offence of voyeurism. I hope that the Minister will take all of these proposed clauses away in order to consider what would be the most appropriate formulation. However, we would submit that this should be classified as a sexual offence. Currently, these matters do not fall within the ambit of the Protection from Harassment Act 1997 because they are not a course of conduct. They are also not caught by the Obscene Publications Act 1959 because the images are not always classified as being obscene.

It is important not only to make this behaviour criminal, but for the police to know that it is a criminal act in order that they can take action at police level and against the internet service providers. Once this is an offence, they will have a mechanism by which to remove these images, because many victims are complaining that without such clarity, they find that although they make submissions to the internet service providers again and again, the images are not being removed from these websites. Of course, the longer they remain posted, the greater the damage that is done to the victims.

At this point I wish to pay tribute to the very brave women who have put their head above the parapet and have spoken out in order to bring attention to this issue. I mention in particular Laura Higgins and the work of organisations such as the UK Safer Internet Centre. I am also pleased that Women’s Aid, Welsh Women’s Aid and Scottish Women’s Aid all support the amendment tabled by myself and my noble friend Lady Morris. Although this matter was not raised in the other place, honourable Members including my right honourable friend Maria Miller hosted an adjournment debate in June to bring it to the attention of Members of Parliament.

At the moment, Amendment 40 does not include any reference to penalties, but I hope that my noble friend will consider the similar offence of voyeurism, which carries with it a sentence of imprisonment of up to two years. We believe that this offence should attract the same scale of penalty. It is only by showing our abhorrence of the sexual abuse of these people that they will be able to secure justice.

This type of behaviour is becoming an ever more pressing problem, and other countries such as the United States and Israel have had to bring forward legislation to catch it. I believe that we should take this opportunity and I am grateful that the Minister is in listening mode in relation to this matter. I hope that that we can come up with an acceptable formulation of what the offence should be in order to offer these victims some protection.

Photo of Baroness Grender Baroness Grender Liberal Democrat

My Lords, I apologise for having been unable to attend Second Reading. I will speak in particular in favour of Amendments 37, 38 and 39. To hear people talk about revenge porn, you would think it had only just been invented, but the divorce in 1963 of the Duke and Duchess of Argyll involving the infamous image of a headless man tells a different story. The dramatic difference is that of course today we have the ability to reproduce a picture a thousand times without the permission of the individual concerned. I will focus on one aspect of this, which is the motive to hurt or humiliate the individual.

I do not believe that on the whole the motivation is sexual gratification, as outlined in Amendment 40. Perhaps I may put before the Committee three case studies that will help to illustrate this. The first is of a lady who was with her partner for two years. They planned to buy a home together so it was a trusting relationship, but after it broke down, her ex published photos of her and labelled her as a “whore” and a “slut”. He even set up an identity pretending to be her and invited humiliation and insults. When she went to the police they were unable to help, and the website refused to remove the images, in spite of regular requests.

The second example is that of a woman whose images were posted on a website called myex.com. The images spiralled from website to website gathering views, comments, abuse and humiliation. While some porn sites actually responded to the woman’s specific requests to remove the images, myex.com did not. She currently remains terrified of family and work colleagues seeing the images. We need to be conscious of the fact that men can also be victims, although most are women. I cite the case of a 29 year-old man who exchanged images having been sent fake images by his girlfriend. His ex has shared them, particularly with his work colleagues.

These cases are ones that involve not naïve teenagers—although obviously I believe that they should be protected as well—but people who have been in trusting relationships where the trust has broken down. What has been done is something that we should clearly define as a crime. These people are our sisters, brothers, daughters and sons, and what they need is protection against these vile acts that are committed without their consent. The inflicting of pain and humiliation is the only motive, and the individual who publishes such images should know that when they do it, they are committing a crime. I hope that the Minister will reflect that when he considers a possible amendment to the Bill.

Photo of Baroness Howe of Idlicote Baroness Howe of Idlicote Crossbench

My Lords, I support the principles behind Amendments 37 and 40. The internet, as we all know, is a fantastic resource, but it can also be a source of harm to children and, in this case, to adults. Noble Lords were clearly grateful for the very positive spirit with which the Minister, the noble Lord, Lord Faulks, agreed to consider suggestions for tackling revenge pornography when the issue was raised at Second Reading, and I hope very much that he will continue to work with the noble Lord, Lord Marks of Henley-on-Thames and the noble Baroness, Lady Berridge, and other noble Lords who are interested in these amendments. We must make sure that a robust solution is found to this increasingly worrying problem.

Photo of Baroness Kennedy of The Shaws Baroness Kennedy of The Shaws Labour 6:00 pm, 21st July 2014

My Lords, it is important that this proposed new clause is drawn with real care. While I hear the discussions about the motivation to degrade and humiliate or to secure sexual gratification, it is important to draft widely without specifying the nature of the motivation. That is because it is always difficult to pin down motivation. A case in Canada is currently attracting a great deal of public attention in which a woman judge has been suspended from the judiciary while an inquiry takes place because her husband put on to the web images of her that had been taken in intimacy.

The concern for the judiciary is that this undermines her authority in the courtroom, because these images are available. It is, if you like, bringing the judiciary into disrepute. The consequences for her life are therefore considerable. It is an interesting and rather difficult debate in Canada. She has remained with her husband and seems to have forgiven him for his transgression, but the issue has moved beyond the pair in the relationship to be an issue of public concern.

I urge that we think about the implications of the drafting. In Canada, a woman’s career has been held in abeyance. She has remained in a marriage because of her commitment to it, but certainly it is causing problems. It is really an issue about consent: has a person consented to the disclosure of intimate photographs? It is not an issue of speculating about what the motivations might be.

Photo of Baroness Morris of Bolton Baroness Morris of Bolton Deputy Chairman of Committees, Deputy Speaker (Lords)

My Lords, my noble friend Lady Berridge set out strongly the case for Amendment 40 with which I am associated—namely that the appalling act of revenge pornography should be a serious sexual offence. I take on board what my noble friend Lord Marks and the noble Baroness, Lady Kennedy, said about the drafting. Neither of us would seek to be draftsmen, but we should make sure that we capture whatever needs to be captured in these amendments.

I was unable to speak at Second Reading but this is a matter that concerns me and rightly concerns many in your Lordships’ House. The issue is how we address that concern. The amendments brought forward by my noble friend Lord Marks would classify the online posting of revenge pornography as an ordinary criminal offence. This fails to recognise the sexual nature of the crime and the impact that it has on the victim, which is a clear violation of the victim’s dignity. Further, this failure to recognise the gravity of the sexual offence leads to an unduly lenient penalty, allowing for imprisonment for no more than 12 months. The courts must have adequate sentencing powers to reflect the severity of this act. For these reasons, I press strongly for this crime to be classified as a sexual offence.

Revenge is a horrible and destructive motive generally, driven as it is by anger, malice and cruel calculation. Perpetrators choose many ways to pursue their revenge, such as harassment, stalking, humiliation through social media by posting malevolent or hurtful comments or spreading rumours concerning work, family or finances in order to ruin reputations. But the greatest betrayal is to choose to use naked or sexually explicit images that should be a private and deeply personal matter between a couple and which were never intended to be seen by anybody else. In this way, the perpetrator commits an act of sexual abuse against the ex-partner, specifically designed to subject them to humiliation and degradation.

If we look at the criminal offence of sexual assault under Section 3 of the Sexual Offences Act 2003, we see that:

“A person (A) commits an offence if he intentionally touches another person (B) … the touching is sexual … B does not consent to the touching and … A does not reasonably believe that B consents”.

To my mind the posting of revenge pornography online is in essence a virtual form of sexual assault since the perpetrator is intentionally posting the naked or sexually explicit image without the subject’s consent, the posting of the image is sexual in nature, the subject does not consent to the posting and the perpetrator does not reasonably believe that the subject of the image consents.

Victims of revenge pornography face extraordinary difficulties, as we have heard, in trying to have their photographs taken down from websites set up specifically to display this type of material. Clearly criminalising this type of activity should give an incentive to internet service providers and search engines to take material down. As things stand, some victims have had to pay so-called fees of hundreds of dollars to host websites based in the United States just to have their photograph taken down from the site.

The law needs to set out clear boundaries about what is and what is not acceptable behaviour, including sexual behaviour. As technologies change, we need to ensure that we keep up with changes in behaviour. This is why we should take this opportunity to recognise revenge pornography as a sexual offence.

Photo of Baroness Brinton Baroness Brinton Liberal Democrat

My Lords, I added my name to Amendments 37, 38 and 39 and I shall not repeat the very good points made by my noble friends Lord Marks and Lady Grender. I shall start from the point at which my noble friend Lady Grender ended: namely, the activities among our teenagers and very young adults which may not always be fully sexually explicit, and certainly may not be intended to be pornographic. A large number of students both in schools and colleges are being asked by their boyfriends or sometimes—though it is unlikely—girlfriends to have photographs taken of them which I am afraid are being used against them. The noble Baronesses, Lady Berridge and Lady Morris, made valid points about the distinction between different types of photograph. It may be that that will be addressed in the discussion that I hope the Minister will have with those who have put forward both sets of amendments.

The principle in our amendments is clear: that the crime is the publication of those photographs or other electronic media, because it is that over which the person in the photograph feels they completely lack control. It is used as a form of abuse. Increasingly what is used as a key element in cases of stalking—indeed this morning there is a case in the paper for which a court date has just been set in December in Scotland—is the threat to publish not only publicly but also among family and friends. The key point of our amendment is that when it becomes a tool of abuse, that in itself should become a crime.

Because this is about making a law, there is, understandably, little focus on the victim. I will highlight the work that the NSPCC and ChildLine have been doing with young people. They have a very good app called Zipit that is intended to teach secondary school pupils how to respond if their boyfriend or girlfriend asks them for a photograph that is inappropriate, using silly photographs and silly text underneath that might say something like, “You’re having a laugh”. That is beginning to work. The work that PSHE staff are doing in schools to make young people understand the dangers of this are vital if we are not to end up with a generation of young people thinking that it is acceptable to play at this. When they get into stronger relationships where they may have a partner over some period of time it will be second nature; then, if they want to get their own back, we will end up in a position where these sexually explicit photographs start to be exported.

I am concerned that one thing that we have not looked at is the circulation of the image after initial publication. There has been some discussion online about trolling and about abuse of the victims by others. I hope that the Minister will be prepared to look at this. It may be difficult to pin down who has circulated the image but we have seen, in recent cases of trolling, that people who have recirculated offensive and defamatory literature can be taken to court for continued publication. That should also be true in this case.

Photo of Baroness Barker Baroness Barker Liberal Democrat

My Lords, I will address the point made by the noble Baroness, Lady Kennedy of The Shaws, that the way in which this amendment is worded is of the utmost importance. Our amendment tries to focus not on the definition of what is pornographic but on the act of revenge. That is why, in our amendment, we have concentrated on the initial posting of an image rather than the reproduction or the recommunication of it, because the act of revenge happens in the initial posting.

To respond to the noble Baroness, Lady Berridge, we have no problem with making this a sexual offence. Quite clearly it is. We do have a number of problems with the way in which her amendment is drafted. For example, it requires that the image be of the two people involved, but you can make a very good attempt at ruining somebody’s life by producing pictures of them with somebody else. I did not think that we would get to the headless man today, but we have—the point there was precisely that it was not the two people in the relationship.

The noble Baroness, Lady Kennedy, is right to make us focus on consent. There are a lot of people out there who one would best call amateur pornographers and who actually want to share the lives on the web. I do not know why, and do not ever want to see it or have anything to do with it, but they do. It should therefore be a defence that they had reason to believe that there was consent on the part of the other person. However, if we are going to make this sufficiently robust and—what we really want it to be above all else—a deterrent that makes it absolutely clear to people who are thinking of committing such an act that they may go to prison, she is right that we need to focus on that. Our amendments are not perfect but they take us quite a long way to where we want to go.

Photo of Baroness Thornton Baroness Thornton Shadow Spokesperson (Equalities and Women's Issues)

My Lords, this has been a very good and interesting debate. We on these Benches support the principle of bringing forward legislation, probably along the lines that my noble friend Lady Kennedy suggested. We do not think that either of these amendments get us to the point where we want to be, as I think those who tabled them would admit, but they take us along that road and I hope we will see something emerge that does get us there.

Images described as “revenge pornography” are indeed a form of harassment and abuse. They constitute stalking and are humiliating. However, as well as a specific offence, what is also needed is the strong political will to tackle the underlying culture that creates and legitimises sexual violence, abuse and harassment in all its forms. That requires not only a government commitment to headline-making legislative reform but to ensuring effective implementation of any new offence and bringing forward compulsory sex and relationship education in our schools. The noble

Baroness, Lady Brinton, referred to what goes in our schools. It is not good enough that this is done by voluntary organisations; it should be part of our curriculum. For the protection of our children, it really needs to be mandatory in our schools.

We on these Benches have problems with both these amendments, for different reasons, some of which have already been mentioned. For example, the amendment in the names of the noble Baronesses, Lady Berridge and Morris, says that to commit the offence, the defendant must distribute the images,

“with the intention that he or a third person will”,

gain “sexual gratification” from doing so. That provision is problematic. As it is framed, no offence will be committed if the defendant discloses the image with a view purely to humiliate and embarrass the person in it. The motivation behind revenge porn is not typically to distribute pornography but to humiliate, embarrass and harass the victim. We need legislation that emphasises that, not the pornography aspect.

Likewise, with the amendment in the name of the noble Lord, Lord Marks, and his colleagues, we do not see why the offence should be limited to the circumstances where the individual is identifiable. As noble Lords have said, the motivation for this offence is to harass and abuse victims, and the harm will be done whether or not he or she is identifiable to others. There is some work to be done and, because we will have a long summer break before Report, I hope that we have time to undertake it. We on these Benches would be very happy to help to do that.

Photo of Lord Faulks Lord Faulks The Minister of State, Ministry of Justice

My Lords, this has been a very useful debate indeed. I will deal with Amendments 37, 38, 39 and 40 together, as they are clearly designed to deal with broadly the same issue, albeit in slightly different ways. They all seek to create a new offence banning the uploading or publishing of material that has come to be known as “revenge porn”. First, I will say that I have great sympathy for the intention that lies behind these amendments, as I said at Second Reading. The posting or publication of intimate material is despicable and cowardly, and we must ensure that such behaviour is appropriately dealt with by the criminal law.

Revenge porn is a broad term used to describe a range of offending behaviour. Usually, it involves an individual, often an adult ex-partner, uploading on to the internet sexualised images of the victim to cause them distress. Although revenge porn does not always specifically involve content that would be regarded as obscene, there is no doubt that the online sharing of intimate images without the subject’s consent can cause great distress and upset to the victim. Some of these images are posted widely across the internet and are often extremely difficult to remove.

Amendment 37 would create a new offence making it illegal to,

“publish a sexually explicit or pornographic image of another identifiable person”.

The new offence would be subject to a 12-month maximum prison sentence. Amendment 40 creates a new offence to capture revenge porn by amending the

Sexual Offences Act 2003, although the proposed new section does not provide for a penalty for the offence. In addition, it only captures images of another person doing a private act that are shared with the intention that the publisher, or a third person, will obtain “sexual gratification” by looking at them. It would not therefore capture all types of revenge porn, such as images which are being posted not for sexual gratification but with the intent of causing maximum distress or damage to the victim.

I assure your Lordships’ House that laws already exist that capture many instances of uploading or sharing such material. The Government encourage any members of the public who have been a victim of this behaviour to contact the police. All published material, both online and offline, is subject to the Obscene Publications Act 1959, which would cover the distribution of particularly extreme material that has been uploaded on to the internet. We also have in place other communications offences that might equally apply to this behaviour. If the content is grossly offensive, indecent, obscene or menacing it may fall foul of Section 127 of the Communications Act 2003, which makes it an offence to send such material over a public telecommunications network.

In addition, depending on the content, posting this material may be an offence under Section 1 of the Malicious Communications Act 1988, the sentence for which the Bill will increase to two years’ imprisonment. The distribution of this material, if carried out as part of a “course of conduct” which alarms a person or causes distress, could amount to a criminal offence under the Protection from Harassment Act 1997. That Act also provides civil remedies that would prevent more material from being distributed. Lastly, I assure noble Lords that if revenge porn images are of children under the age of 18, then very robust legislation dealing with indecent images of children would come into play.

However, notwithstanding this, the Government are carefully considering what more needs to be done to combat this very damaging behaviour. We are listening to campaigners, including those from across the House, and looking urgently at the best way to address the behaviour that these amendments seek to criminalise. This includes raising awareness of these issues, looking at the existing framework of criminal offences and ensuring that the relevant authorities are adequately equipped to take enforcement action when needed.

If new legislation is required, we must ensure that we address all the issues involved to ensure that we properly target the material that is causing concern and that we capture only the relevant behaviour. This requires detailed consideration and care, as has been widely acknowledged during the debate. Although there is a degree of consensus about what evil we are trying to seek out and criminalise, exactly how we capture it is a complex problem. This debate will certainly help the analysis that will take place in the month or two that follow, and I would of course be happy to see any of those concerned to ensure that we capture adequately and appropriately the behaviour at which these amendments are directed. We will take away these amendments and return to the House with our conclusion at a later stage of the Bill. In the mean time, in thanking all noble Lords for their participation in the debate, I urge that the amendment be withdrawn.

Photo of Lord Marks of Henley-on-Thames Lord Marks of Henley-on-Thames Liberal Democrat 6:15 pm, 21st July 2014

My Lords, I am grateful to everyone who has spoken in this debate, and to the Minister for his strong indication that legislation will be forthcoming. It is clear that there is consensus on the nature of the problem and on the proposition that legislation is required to deal with it. I entirely accept the point of the noble Baroness, Lady Kennedy, that it is important not to set the hurdle too high by requiring the motivation to be established. Our amendments did not do that. I also entirely accept the point made by my noble friends Lady Berridge and Lady Morris of Bolton that it may be sensible to record this as a sexual offence, to enable to consequences of it to be followed through.

I also take the point the Minister makes—that some offences already capture some elements of this kind of behaviour. However, he plainly accepted that this is not true of all such behaviour and, because the offence is so unpleasant and the consequences so bad, it seems clearly proved that we need a separate offence. I look forward to us all co-operating and trying to word this appropriately. I beg leave to withdraw the amendment.

Amendment 37 withdrawn.

Amendments 38 to 40 not moved.

House resumed. Committee to begin again not before 7.01 pm.