Moved by Lord Marks of Henley-on-Thames
216: After Clause 143, insert the following new Clause—“Meaning of “private” and “sexual”(1) Section 35 of the Criminal Justice and Courts Act 2015 (meaning of “private” and “sexual”) is amended as follows.(2) In subsection (3)(a) after “exposed genitals” insert “, breasts, buttocks”.(3) Omit subsection (4).(4) Omit subsection (5).”
My Lords, with the consent of my noble friends Lord Paddick, Lady Hamwee and Lady Grender, and at their request, I rise to move and speak to Amendments 216 to 219 in this group. It was intended that my name should be added to Amendments 216 to 219A, but there has been a disconnect between intention and implementation, for which I apologise. Nevertheless, I support these amendments.
No one now disputes the need for the law to outlaw revenge porn. Disclosing private sexual photographs or films, usually acquired during a relationship, and publishing them on the internet with intent to cause distress to a former partner, is nasty and hurtful behaviour. To the victims it causes untold pain, embarrassment and humiliation. It is an appalling violation of privacy and a gross breach of trust.
Sections 33 to 35 of the Criminal Justice and Courts Act 2015 came into force in April of that year, and there were 200-plus prosecutions in the first year. To that extent, the criminalisation of revenge porn has been a success. However, responses to BBC freedom of information requests showed that out of 1,160 reported instances between April and December 2015, no action was taken in no less than 61% of cases, and many of the victims were children, some as young as 11. Many cases were not prosecuted because of insufficient evidence or because the victim did not proceed with the complaint, but of course that does not mean that the incidents did not occur. We are seeing an ever-increasing use of the internet to hurt people, often hiding behind anonymity or disguised identity. It is reasonable to assume that revenge porn will continue to be posted on the internet, despite its criminalisation.
Especially worrying is the persistent and, I suspect, increasing prevalence of the practice known as sexting, particularly among children and young people. In addition to pursuing offenders through the criminal law, we must ensure that we increase public awareness and that police forces take these offences seriously—consistently seriously across the country—and develop a social culture which treats this behaviour as beyond the pale. An NSPCC study in 2012 estimated that between 15% and 40% of young people had been involved in sexting; that much of that was under pressure, whether peer pressure or personal pressure from people with whom they were involved in a relationship; and that many images were shared with others by those who received them without the consent of their subjects. There is no evidence that with the increasing use of social media by young people, that number has decreased. Of course, there is a strong link between sexting and revenge porn.
These amendments are designed to tighten up the law. They also to a large extent bring the law into line with the equivalent legislation in Scotland, the Abusive Behaviour and Sexual Harm (Scotland) Act 2016, where the wider provisions have worked well. Proposed subsections (1) and (2) of Amendment 216 would extend the scope of the disclosure offence to bring photographs and films of breasts and buttocks within the range of sexual images and therefore within scope of the offence in the same way as such images of the victim’s exposed genitals or pubic area. That is in the Scottish legislation and it is quite clear from the evidence we have seen that such images are likely to cause distress, particularly to young girls, in the same way and to the same extent as the images presently within the scope of the Act. Of course, disclosure of such images would be an offence only if the threshold criteria were met: that the image was private, that it was disclosed without consent, and that it was disclosed with the intention of causing distress. There is no reason for the legislation to restrict the images that are not to be disclosed in the way that it currently does.
In the second part of the amendment, proposed subsections (3) and (4) would remove Sections 35(4) and (5), which are the current exception in the legislation for photographs or films that are created by altering originals or combining them with other photographs or films in such a way as to bring them within the statutory definition of “private” and “sexual”, so doctoring films and images to make them offensive. We do not accept the need or the justification for that exception. If a photograph or film as finished and published has the effect of a private and sexual image and is disclosed without the consent of the subject and with the relevant intent, I suggest that is ample reason to bring it within the section rather than to except it from it.
The first two subsections of Amendment 217 would amend Section 33 of the 2015 Act to extend the disclosure offence to bring threats to disclose private sexual photographs and films within the scope of the offence, as well as actual disclosure. There can be no reason to exclude threats to disclose from the legislation and, although it is true that the actual disclosure is what causes much of the harm, a threatened disclosure by the holder of sexual images of a victim can be used to put real and painful pressure on the victim, usually a previous partner, causing very real distress. That is why the amendment would bring threatened disclosures into scope.
Secondly, proposed subsection (3) would broaden the category of the unnecessary emotional consequences for the victim necessary to sustain a conviction so as to include “fear or alarm” as well as “distress” as an alternative form of consequence. That extension is particularly relevant in the context of threatened rather than actual disclosure.
Thirdly, the amendment by the proposed subsection (3) would also make proof of recklessness regarding the distress, fear or alarm likely to be caused sufficient to found a conviction as an alternative to proof of intention. Again, this is in the Scottish legislation. In this context, reckless disclosure means disclosure that is deliberate but that is made entirely without regard to the distress, fear or alarm that it is likely to cause to the victim. The perpetrator knows he is making the disclosure. He should not escape criminal liability just because the prosecution cannot prove that he positively intended its obvious consequences. We suggest that he should be equally criminally liable if he turns a blind eye to those consequences. It is right that intention should be supplemented by guilt in respect of disclosure that is reckless as to the likelihood of the harm it will cause. The deletion of Section 33(8) that is proposed by subsection (5) is also necessary to achieve that end.
Lastly, the proposed subsection (4) in the amendment would introduce a clear and explicit ban on promoting, soliciting or profiting from photographs or films that are themselves in breach of the Act. I apologise that, as drafted, the use of the words,
“reasonably believed to have been disclosed without consent”, is perhaps inappropriate; I am not sure that reasonable belief is correctly used there. I suspect the proposed new clause would better read if it were expressed as, “disclosed without consent in the knowledge or belief that they had been so disclosed”, and we would redraft subsection (4) in that regard before Report.
Amendment 218 would introduce a provision for compensation for victims of offences under these provisions. It is plainly right that these revenge porn offences should give rise to a power to award compensation, but I would add to that self-evident assertion two particular points. First, this offence is unlikely to give rise to civil proceedings— victims will generally be unwilling to go through civil cases because of the embarrassment that could cause, and they will rarely have the means to do so.
Secondly, there will be many cases of revenge porn offences where the perpetrator is gainfully employed and will have the means to pay compensation ordered by the court for the hurt he has caused. We suggest that a power to award compensation, to include compensation for anxiety as well as for direct financial loss, is therefore an important part of a judge’s power to deal with an offender and publicly to recognise the harm caused by the offender directly to the victim.
My Lords, I have a great deal of sympathy with what the noble Lord is saying. What troubles me slightly is the quantum of the compensation and, more particularly, whether there is any appeal on it. I think these offences are triable either way. In the magistrates’ court, is there an appeal to the Crown Court on the quantum contemplated? If the case is tried on indictment, where lies appeal from the compensation ordered by the Crown Court?
My Lords, it is quite plain that there ought to be an appeal. I have not looked at the provisions and perhaps I can clear that up before Report. It is also quite clear that the appeal from the magistrates’ court on compensation would go to the Crown Court and from the Crown Court to the Court of Appeal, where the standard for an appeal is high but one would expect the judges to get it right. The noble Lord knows well that these issues of compensation are very much in the discretion of the trial judge, taking into account both the harm caused and the ability of the offender to pay the compensation. It is a perfectly good question and I undertake to look at it before Report.
Finally, Amendment 219 would simply add these offences to the list of sexual offences in respect of which a victim is entitled to anonymity. It is right that there should be anonymity for victims of revenge porn offences because these fall squarely within the category of sexual offences that are entitled to such anonymity. I think this is relatively uncontroversial. I beg to move.
My Lords, I give qualified support to what has just been said by the noble Lord, Lord Marks. I have a great deal of sympathy with the underlying argument which he has advanced. There is no doubt, and it is increasingly the case, that people are using private intimate photographs and films for the purpose of blackmail or revenge. Given that we have a Bill where we can extend the existing law, I see absolutely no reason why we should not extend the substantive offence of disclosure to one of intent as well. That is a perfectly sensible amendment and I would support it if given the opportunity.
Regarding extending the definition of the “damage” from distress to the enlarged category which the noble Lord spoke of, my feeling is that the word “distress” probably encompasses what he has in mind. However, I have no objection to the extension in the sense that it does at least remove any doubt that may exist and is certainly not harmful. I suspect it is not necessary but I am not against it.
I made a point about compensation when I intervened on the noble Lord and I will not repeat it at any length. In principle, I am in favour of a compensation provision, but I worry about compensation at large without any kind of regulation of the amount: that can mean injustice. I am far from clear on whether the Crown Court has an appellate role in respect of compensation awarded at the magistrates’ court, and I would be grateful if the Minister could help the Committee on this. I am even more in doubt as to whether the Court of Appeal would have a role in considering an award made at the Crown Court. Will my noble friend give some thought to this, maybe returning at some later stage? If there is no effective appeal, I have two suggestions. One is that we should impose an arbitrary cap—a ceiling—on the amount that could be awarded. That would prevent any obvious injustice. Secondly, and differently, we should consider restricting the claim for compensation to a claim made in civil proceedings, where the procedure is more clearly established.
Amendment 219 is about anonymity. I took the opportunity to look at the substantive Act and was struck by the very large number of examples which are covered by anonymity. I can see no reason of principle, and rather a lot of advantage, in accepting the amendment put forward by the noble Lord to extend anonymity to this category of case.
My Lords, I have some comments on Amendments 216 and 217 for consideration by the Committee. On Amendment 216, I am doubtful that Section 35 of the Criminal Justice and Courts Act 2015 needs amendment to add the words “breasts” and “buttocks”. The reason for that is that Section 35(3) already defines a photograph or a film as sexual if,
“it shows something that a reasonable person would consider to be sexual because of its nature”, or if the,
“content, taken as a whole, is such that a reasonable person would consider it to be sexual”.
The reason why I anticipate that the 2015 Act does not make a photograph of a breast or a buttock necessarily sexual is that it is very easy to think of circumstances in which such a photograph is not sexual by reason of its context. It may be a photograph of your child in a swimming pool with their breast exposed; it may be a photograph of a breast-feeding mother. It may be a beach shot of my family that shows someone in the background wearing a thong. It all depends on the context—and if the context is sexual, the Act already covers it.
Subsection (4) of the proposed new clause in Amendment 217 would create a new criminal offence of promoting, soliciting or profiting from “private photographs and films”. I have no difficulty, of course, with the idea that that should be a criminal offence. I point out that that subsection, however, does not use the word “sexual”. I assume that that is a drafting error; it talks about profiting from “private photographs and films”, but I think it should say “private sexual photographs and films”. Otherwise, it has a very different scope—which I see from the nodding on the Liberal Democrat Benches was not intended.
I am grateful. My only other point on Amendment 217 is one that I think the noble Lord, Lord Marks, accepted in his helpful opening speech. The offence in subsection (4) is committed if the defendant reasonably believes that the photographs or films were “disclosed without consent”. That would be anomalous since the primary offence—the offence committed by the person who discloses private sexual photographs or films—rightly requires the prosecution to prove that the disclosure was without the consent of the individual.
My Lords, I support the amendments in this group. I am delighted to see the noble Lord, Lord Faulks, in his place, as the Minister who announced the changes in the legislation when some of us were campaigning to get it transformed. It was a very proud moment when he announced it—quite late in the evening, as I recall—and we had a whole row of ladies, plus one man, watching in the Gallery who had broken their anonymity and shared with us the appalling experiences that each of them had been through as a result of revenge porn.
I am very proud that, even with the limited amendments that we managed to get through into the Criminal Justice and Courts Act 2015, we are now as a nation a little further ahead than most others in trying to deal with a very difficult issue. But there are so many more who are not caught in the current legislation. While in 2015-16 we know that 206 individuals were prosecuted under the new law, a survey by “Good Morning Britain” revealed that police forces in England and Wales had dealt with a total of 2,130 cases. There is quite a difference between these numbers in terms of what is going forward to prosecution, and we have already heard what some of the difficulties in that area are likely to be.
It is also critical that we as parliamentarians stay ahead of the speed of change in attitudes and behaviour that smartphones and social media bring in their wake. In the US, a McAfee study revealed that 36% of people had sent or intended to send an intimate picture. As legislators, we have to understand that, whatever our attitude to and opinion of that, we need to create laws that foresee the way that society is changing. These amendments therefore necessarily go further and we must credit the Women’s Equality Party for its part in doing some of the drafting, which resulted in us trying to amend this in the other place.
I particularly want to address the issue of anonymity. When we ran this campaign a year ago, some women stepped forward and were prepared to be named when they recounted what they had gone through. But part of the problem was that many victims were too scared to put their names out there. This happened to one lady whom we dealt with—because her name was out there and she was campaigning against this, it ensured that she got far more coverage on some of the websites that she was deliberately trying to avoid. It has now been accepted in current legislation by this Government that victims of forced marriage are given that anonymity; I see this as being a very similar area.
I will conclude here. I think that we are aware that in this area there are issues of suicide, self-harm and damaged reputation. As we talk now there are hundreds, perhaps thousands of young men and women who are sharing intimate images that, frankly, will have a devastating impact on their future. It is up to us, through some of these amendments, to be ahead of the law at every stage.
My Lords, I am most grateful to the noble Baroness, Lady Grender, for mentioning my small part in the acceptance of revenge porn as part of the list of criminal offences that the Government accepted ought to enter the calendar of criminal offences. The Government looked carefully at this and, in many ways, some of the conduct that was embraced within so-called revenge porn was probably covered by existing criminal offences. However, it was accepted that such was the need to identify specifically this sort of behaviour that it was appropriate to include it as part of the Criminal Justice and Courts Act 2015.
While I entirely accept what lies behind these amendments and the evil that they are directed against, I think that one has to bear in mind that we have had only a very short time for this legislation to bed down. I am glad that there have been prosecutions; it appears that there was a need and the prosecuting authorities have acted accordingly. But I am not sure that I am, at the moment, satisfied that there is a need to go further in terms of definition. For example, Amendment 217 talks about threats to disclose. The Minister will no doubt correct me, but all these areas are probably covered by existing criminal law—for example, blackmail, threatening behaviour, theft or other offences. A threat may be something substantial but it may be something very trivial and we do not want to have relatively trivial matters embraced in what is often a very serious offence.
As to Amendment 218, of course, on the face of it, it seems attractive that there should be some compensation. I am a little concerned, however, about a judge in a criminal case having to assess anxiety and the degree of anxiety in terms of the appropriate quantum of damages. How is he or she going to do that? Will there be evidence from somebody expressing how affected they were, and the degree of the affection—whether, for example, it caused them to go to a doctor? There is a slight danger that we could lose sight of what is really important—a criminal offence, rather than whether there should be compensation.
Quite apart from the questions of appeal raised by my noble friend Lord Hailsham, there is some work to be done on this. On the question of appeal, surely there would be an appeal from the magistrates’ court to the Crown Court as of right, and to the court of criminal appeal in appropriate, and possibly restrictive, circumstances. It may be that in due course there would be some informal tariff, perhaps involving the Sentencing Council—but I would not like it to be thought that the criminal prosecution of matters should be used as some proxy for obtaining compensation.
My Lords, I will be brief. These amendments cover a serious and disturbing issue that has received considerable publicity in recent months. The purpose of the amendments, as I understand it, is to tighten and extend the reach and scope of the law in respect of disclosure of private sexual photographs and films without consent and with malicious intent. They include new clauses on compensation and anonymity for victims. At this stage we will listen with interest to the Government’s response, including the extent to which they consider that the law as it stands is sufficient—or, alternatively, needed—to deal with any or all of the issues addressed in the amendments.
My Lords, as the noble Lord, Lord Marks, has explained, this group of amendments all relate to what is commonly referred to as revenge porn, as provided for in Section 33 of the Criminal Justice and Courts Act 2015. Amendments 216 and 217 seek to extend significantly the scope of the offence, but the Government consider that the offence is working well. I am pleased to see my noble friend Lord Faulks in his seat; as he said, there have been more than 60 convictions for the offence since it came into force in April last year.
The offence is deliberately tightly drafted to target those individuals who have disclosed private and sexual images without consent, and with the intention of causing distress to the individual depicted. We are not persuaded that a sufficiently strong case has been made for broadening the scope of the offence, as proposed by the two amendments.
The general effect of Amendment 216 would be to significantly extend the range of material that could be considered private and sexual for the purpose of the offence. Currently, the offence is drafted to capture material that is sufficiently sexually explicit that its dissemination would be likely to cause real distress to those depicted. The offence also provides that images that are photoshopped—for example, so that a non-sexual image of an individual becomes sexual—should not be covered by the offence. This is because the disclosure of such an image, though still distressing, does not have the potential to cause the same degree of harm as the disclosure of an undoctored photograph showing images of the kind referred to in Section 35(3) of the 2015 Act. The noble Lord, Lord Pannick, made some interesting observations to that end. To alter the definition of “sexual” as proposed in Amendment 216, would, in our view, unjustifiably extend the scope of the offence.
Regarding the extension of the offence proposed by Amendment 217, we see no need to capture those who threaten to post such images. The offence, rightly, deals only with the act of actually disclosing private and sexual images, as it is the disclosure of the images that causes the harm which criminalising this behaviour seeks to prevent. As my noble friend Lord Faulks says, threats to disclose could, depending on the circumstances, be captured by existing offences that tackle harassment, malicious communications or, of course, blackmail. It is also difficult to see what would be gained by including an intention to cause fear or alarm to the victim, as distress is sufficiently broad a term for these purposes. Amendment 217 also seeks to make it possible for the offence to be committed recklessly as well as intentionally. The offence is targeted at those who deliberately seek to cause distress to victims through the dissemination of private and sexual material. This malicious intent—the revenge element of revenge porn, so to speak—is a key feature of the offence and we believe it would be wrong to dilute this by applying the offence to conduct that is the result of recklessness rather than a deliberately malicious act. Similarly, the proposal to extend the offence to those who,
“knowingly promote, solicit or profit”, in relation to revenge porn material would shift the emphasis from those who disclose the relevant images with malicious intent, the mischief which this offence is intended to address.
Amendment 218 seeks to make specific provision enabling a court to make a compensation order where the offender is convicted of the offence of revenge porn. The noble Lord is right to highlight the issue of compensation for victims of these crimes. However, the courts already have significant powers to require offenders to financially compensate their victims for the harm and the hurt that they have caused. The compensation order may be imposed for any offence, as a sentence in its own right or as an ancillary order, in addition to another disposal. Courts are obliged to consider making a compensation order in all criminal cases where personal injury, loss or damage has resulted, under Section 130 of the Powers of Criminal Courts (Sentencing) Act 2000. “Personal injury” in this context includes mental injury, and sentencing guidelines are clear that mental injury includes:
“Temporary mental anxiety (including terror, shock, distress)”.
My noble friend Lord Hailsham asked about appeals and my noble friend Lord Faulks helped me out somewhat on that. My understanding is that a compensation order forms part of the sentence of the court, so may be appealed to the higher court in the normal way. Appeals against a sentence imposed by a magistrates’ court are to the Crown Court, and from the Crown Court to the Court of Appeal, which I think is what my noble friend said.
As regards Amendment 219 and anonymity for victims, judges already have discretionary powers to prohibit the naming of witnesses, including victims, if identifying them would cause undue fear or distress, preventing their co-operation and adversely affecting the quality of evidence at the trial. There are also other special measures to support vulnerable and intimidated witnesses so as to improve the quality of their evidence, such as the use of screens in court or video live-link from a separate location. The Government consider that these current arrangements strike the right balance between protecting victims and upholding the general principles of openness and transparency in court.
The so-called revenge porn offence has been in force for a little more than 18 months, as my noble friend Lord Faulks said. As I have indicated, the evidence we have in terms of the number of prosecutions is that it is working well. Of course, it is absolutely right that the operation of any new offence such as this should be kept under review, and the Criminal Justice and Courts Act 2015 will be subject to post-legislative review in the normal way. But these are still relatively early days for this offence. We believe that it is properly targeted and that it is certainly too soon to contemplate the significant extension of the offence in the way proposed by Amendments 216 and 217. In relation to Amendments 218 and 219, I hope I have been able to reassure noble Lords that the existing powers for the courts to award compensation to victims and to protect the identity of witnesses in appropriate cases are sufficient. With that, I hope that the noble Lord will be content to withdraw his amendment.
My Lords, I will be very brief in response. We will, of course, consider the Minister’s reply in detail between now and Report.
On the question of appeal and the cap on compensation, I am anxious that victims are not directed to civil proceedings as a result of the difficulties I foresee here. Rather than imposing a formal cap, I am far more sympathetic to the idea of requiring either the Sentencing Council or the Judicial College to introduce sentencing guidelines for compensation for these offences. I am not, at the moment, convinced by the Minister’s response that current compensation-awarding powers necessarily cover the kind of distress and hurt caused by these offences and I cannot see why a specific power should be otiose.
On the points made by the noble Lord, Lord Pannick, the extension of the offence in respect of the type of depictions and images that can be shown would bring this Bill in line with Scottish legislation, as I said. The threshold criteria, according to which images must be private, published without consent, and with intent to cause to distress, answers the point that a distinction should be drawn between the precise nature of the image: if images meet those criteria, the fact that it is not the pubic area but only breasts and buttocks that are shown should still be enough to make them sexual. I am not convinced by the alternative catch-all provision, although I see the force of the point.
The noble Lord, Lord Faulks, made a point about threats to disclose information already being criminalised under certain laws. He mentioned blackmail and theft and the Minister mentioned harassment. The problem with blackmail is that it involves unwarranted demands with menaces, but there is no suggestion here that the mischief at which the amended offence would be aimed is a demand; it is the desire to hurt. I am really not sure that that is covered by any existing offence. Hurt can be caused by the threat of disclosure just as it can be caused by an actual disclosure, and I am grateful to the noble Viscount, Lord Hailsham, for his support on that point.
As to doctored photographs and images, the point about the distress that they cause is that the people who see them do not know that they have been doctored —they are seen as images of the subject. That is how hurt is caused and that is why it is important to cover such photographs and films.
On anonymity, there is no reason why a victim should have to go through the hoops of satisfying a judge that it is required when generally in sexual offence cases it is given as a right. It is also particularly important that those victims who are considering whether to complain of an offence and take the matter to court are guaranteed anonymity as this is an important part of persuading them to come forward with a complaint that then gets prosecuted. The Minister did not answer that point at all.
With your Lordships’ leave, I beg to withdraw the amendment.
Amendment 216 withdrawn.
Amendments 217 to 219 not moved.
Moved by Lord Paddick
219A: After Clause 143, insert the following new Clause—“Pre-charge anonymity (1) After a person is accused of a sexual offence, no matter likely to lead members of the public to identify them as the person against whom the accusation is made shall either be published in England and Wales in a written publication available to the public, or be broadcast in England and Wales, up until that person is charged with the offence, except where a judge is satisfied that it is in the public interest to remove the restriction in respect of that person.(2) In subsection (1), “matter” includes but is not limited to—(a) a still or moving picture or image of that person; or(b) the name and address of that person.(3) In subsection (2)(a), “picture” includes a likeness however produced.”
My Lords, Amendment 219A is tabled in my name and that of the noble Lord, Lord Campbell-Savours. This amendment is designed simply to protect the identity of those accused of sexual offences in a similar way that the identities of the alleged victims of sexual offences are currently protected. The significant difference here is that the identity of the accused would be protected only until the point of charge, and if the police believe that the public interest demands it, the police can apply to a court to have that ban lifted so that the identity of the accused can be put into the public domain before charge. There needs to be a balance between the rights of the accused and the rights of the victims of sexual offences. This amendment is designed to allow us to establish where that balance should be.
We will all be acutely aware of the impact that sexual offences can have on the victims or survivors, but until recently the voice of those who have falsely accused of such offences has not been heard. Some noble Lords will have heard about the impact that such accusations have had on the widow of Lord Brittan, Sir Cliff Richard and Paul Gambaccini when they came to speak to Members of the House about their experiences. I introduced that event but did not hear their personal accounts. Since then I have been contacted by others, the families of those whom none of us has ever heard of, who have been similarly devastated by allegations of a sexual nature being made, those allegations being made public, and then the police realising that there was no credible evidence to support the allegations. The emotional first-hand accounts of the pain and suffering of those falsely accused are powerful, but I have tried to stand aside from such emotions and to deal with this matter objectively.
It is important that I declare a number of interests in terms of my experiences over the years. During my professional career of more than 30 years as a police officer, I have dealt with, supported and campaigned for justice for those who have been the victims of male violence in general and of sexual offences in particular. I was one of the most senior police officers at New Scotland Yard when the incoming commissioner, Sir Ian, now the noble Lord, Lord Blair of Boughton, asked me to carry out a review of how the victims of rape were dealt with by the Metropolitan Police. Having been the co-author of a book that significantly changed the way the police investigated rape offences for the better, the commissioner wanted to ensure that the Metropolitan Police was among the best in the world at dealing with rape allegations. I carried out an in-depth review with academics and survivor groups, and produced hard-hitting recommendations on how the police should improve the way they support victims of rape. I worked together with the then assistant commissioner, Tim Godwin, to establish further Havens, places in the National Health Service where the survivors of sexual offences could go to receive the physical and psychological support they needed, where forensic samples could be preserved, and where they could be put in contact with the police if they wanted to pursue the case through the criminal justice system.
One of the first engagements I had with a group from outside the House following my introduction three years ago was with representatives of the End Violence Against Women Coalition, a UK-wide coalition of more than 70 women’s organisations and others working to end violence against women and girls in all its forms. The point I want to make is that I am passionate about working to end violence against women and girls, ensuring that the survivors of male violence are supported and the perpetrators brought to justice if the survivor wants to pursue the matter.
I know from personal experience about male violence and no one is more committed to ensuring that the criminal justice system does more to protect and support survivors, as well as ensuring that the perpetrators are successfully brought to justice in a way that respects survivors and encourages them to come forward. But this cannot be justice for victims at any cost. The protection of the rights of survivors cannot be at the unnecessary and unreasonable denial of the rights of the accused.
Many sexual offences are different in nature from other criminal offences. In most cases of criminal wrongdoing, there is objective and physical evidence of that wrongdoing. If someone is accused of murder, there is almost always a body. If someone is accused of child cruelty, there is a child who has been harmed. In many sexual offences cases, particularly where the offence is historical, very often there is no objective, independent physical evidence. The allegation can be made and the complainant can be credible, but the complainant may be mistaken or, albeit rarely, malicious. One has only to look at those parts of the report produced for the Commissioner of the Metropolitan Police by Sir Richard Henriques, which was made public last week, to realise how the police can be taken in. The police must treat every allegation made to them seriously, but they must believe the person making the allegation as far as the initial investigation and care and support for that person are concerned. They must treat the allegations as true as far as their interaction with that individual is concerned, unless and until they establish that there is no credible evidence to support the allegation. However, until they do establish that there is credible evidence that they can put before a court, they should not do anything to identify the accused, unless there are exceptional circumstances. That is what this amendment seeks to achieve.
We have a system of open justice in this country and there is no suggestion that someone who has been charged and appears before a court should have their identity protected. Too few survivors of sexual offences come forward to report what has happened to the police, too few cases result in charges being brought and too few people are convicted in the courts. Everything must be done to improve the chances of perpetrators being brought to justice, but not at any cost. There is already a cost—a necessary cost—to open justice as the law stands in that the identity of the victim of a sexual offence is protected for their lifetime, and rightly so.
Although we should live in a society where no shame should be attached to being the victim of a sexual offence, that is not the reality. Although we should live in a society where the principle of innocent until proven guilty is not just a legal theory, when it comes to sexual offences, the reality is that people believe there is no smoke without fire. The consequences of this are only too clear from Sir Richard Henriques’s report.
It has been suggested that it is important the police name those arrested. The police themselves believe that there should be a presumption against identifying people who have been arrested. The College of Policing guidance is that the name of the person arrested should not normally be released, but that is not what happens in practice .Even when there is no public interest, where the ends of justice do not demand it and where they may even be frustrated by the arrested person’s identity being made public, there are endless cases, particularly where the individual has a high profile—locally, nationally or internationally—and their name is leaked to the press. This is not limited to an anonymous tip-off by a constable—noble Lords will remember the BBC helicopter beaming live pictures of the raid on Sir Cliff Richard’s home in collusion with South Yorkshire police. He has never been arrested. Whatever the police guidelines say, the identity of those arrested routinely finds its way in to the public domain.
In the case of victims of sexual offences, their identities are far better protected because the law protects them. This amendment extends that protection to those accused of sexual offences but, I repeat, only to the point of charge. In the independent review of the Metropolitan Police Service’s handling of non-recent sexual offence investigations alleged against persons of public prominence, Sir Richard Henriques concludes in recommendation 10 on page 45:
“A suspect should have the right to anonymity prior to arrest enforced by statute and criminal sanctions.”
Although this amendment goes further by requiring an anonymity pre-charge, the principle that anonymity needs to be protected by statute and criminal sanctions is accepted by Sir Richard. It is important that in certain circumstances, the police should still be able to release the identity of a person suspected of a sexual offence before they are charged. This amendment allows that an application can be made to a judge in exceptional circumstances. For example, if a survivor has given credible evidence, there is corroborating forensic evidence and suspicion that the accused may have attacked others, but the only person who has come forward is unwilling to pursue the case, the police could and should appeal for other victims to come forward.
Those opposing the amendment have cited specific cases. In some of those, serious errors were made by the police, who failed to act on the evidence. In others, further victims have come forward after the accused was charged with the offence, but rarely before charge. There is a balance to be struck. The amendment suggests that the balance lies where the police have credible evidence that they and the Crown Prosecution Service intend to put before a court. In very few cases, if any, have the police had to rely on the naming of an individual to encourage further victims to come forward to secure sufficient evidence to charge an individual or prove a case against them, but if a such a situation arose the police could apply to a judge to have the name of the individual released.
It has been suggested that false allegations of sexual offences are rare, and therefore the amendment is a sledgehammer to crack a nut. Recommendation 4 on page 28 of Sir Richard Henriques’s report says:
“Investigators should be informed that false complaints are made from time to time and should not be regarded as a remote possibility. They may be malicious, mistaken, designed to support others, financially motivated, or inexplicable”.
It has also been suggested that the call for pre-charge anonymity is misplaced—that the way those accused are treated is the result of terrible, sensationalising media representation of sexual offences, accompanied by a collective failure to uphold the presumption of innocence. Media sensationalism and protecting the presumption of innocence need to be addressed, but how, as we have seen over the recent attacks on the judiciary, are we to tackle those issues without being accused of curtailing freedom of the press? Sadly this is the reality; this is the world we live in. This is why the accused and those who are victims of sexual offences should be protected.
I brought forward the amendment because it is time for this important issue to be debated again. I passionately believe in justice, but not in justice at any cost. The rights of the accused in sexual offences need to be considered alongside those of the victim. Quite rightly, there is public abhorrence of those who commit sexual offences, particularly against those who are too young to consent. The damage to the reputations of those accused can therefore be irrevocably damaged.
Sexual offences can be of a nature where allegations are easy to make, where there is no corroborative evidence and where the consequences for those falsely accused can be devastating. It is time we seriously considered this amendment. I beg to move.
My Lords, the House is indebted to the noble Lord, Lord Paddick, who has huge experience in this area. I open my remarks by telling a true story. A woman rifles through the dustbin of a reputable consultant, finds a used condom, smears the contents on herself and makes a false allegation of rape. Because the accused has no right to anonymity, he is suspended as a consultant psychiatrist, hauled before the GMC, shunned by his friends, attacked on the internet, loses £100,000, part of which was income, and is then discredited in his own community. Should we not be looking at the law on anonymity for men, as there are many cases of reputations that have been destroyed where prosecutions have been dropped?
I have raised this issue on many occasions over the last 15 years’ of my membership of this House. To be frank, I got absolutely nowhere. The problem is not in this House, but in the Commons. There are women in the Commons who feel strongly that transparency in the legal and investigatory processes helps to secure a high rate of successful prosecutions. I understand all that. The facts as the law stands speak for themselves: a 31% increase in recorded rapes in 2015 alone; gross underreporting of the crime; one in five women under 60 reporting sexual violence; abuse in the process, as in the recent Evans case; and the disturbing trend—I understand, although I am not a lawyer—of jury vilification, where juries return a verdict of not-guilty despite a belief that the defendant is guilty of the violation. The jury, in effect, is nullifying a law it believes is immoral or wrongly applied to the defendant whose fate it is charged with deciding. Finally, there is a low rate of successful prosecutions. That is the background; it is the tension in the Commons that leads to opposition to the change of the law in this area.
These concerns and more stand at the heart of the anonymity debate. Women want early identification so as to counteract their concerns. As Maria Eagle put it in the Commons:
“Rape is often a serial crime and it is often only after many crimes that a perpetrator is brought to court. Previous victims often come forward at that point. That can be essential to the securing of a conviction”.—[Official Report, Commons, 8/7/10; col. 567.]
That is the case in defence of the present arrangements.
There is, however, an appalling price to pay for the denial of anonymity. Lives are being destroyed. The new drivers behind the argument for reform are those whose lives have been ruined by pre-charge publicity: Cliff Richard, Paul Gambaccini and Leon Brittan—as we mentioned—and the many others who have written to me over the years detailing what has happened in their lives. It has meant the loss of livelihood, the loss of friendships, marriages collapsed and families destroyed by the unjustifiable publicity. Even when their names are cleared, they take to their graves an element of residual public prejudice and suspicion. The benefits of transparency have to be carefully weighed against the destruction of people’s lives, which on occasions has even led to suicide. There has to be reform.
We are then told by those who oppose anonymity that you cannot single out the crime of rape from other offences pre-charge. Again, as Maria Eagle put it in the House of Commons:
“In fact, people accused of sexual crimes should not be treated any differently from other defendants. If the Under-Secretary”— who was across the Dispatch Box at the time—
“singles out rape from all other sexual offences … That will impinge on victims’ capacity to come forward … which will in turn impinge on the conviction rate”.—[
I cannot, however, understand how singling out rape pre-charge deters reporting by victims when, once a person is charged, goes to court and is placed on public trial, the world is made aware of the nature of the crime that they are alleged to have committed. In a particular case, a man is not tried for previous rapes, as I understand it, but only the rape or rapes that is or are the subject of the prosecution. Surely if, during a trial, further rape cases come to light, and if the evidence is there, further prosecutions can be brought.
We are then told that police guidelines protect the accused prior to charge from adverse humiliating publicity. However, as Mr Blunt, the Minister, said at the Dispatch Box in the other House on behalf of the Government in July 2010:
“It appears to be widely assumed that there is a self-regulation scheme in place that clearly prohibits the reporting of anybody accused of a crime but not yet charged with it. On close examination, however, the 2004 interpretative note does not provide complete reassurance. Nowhere does it contain an outright general prohibition on the reporting of pre-charge allegations. In fact, in the main, no mention is made of the distinction between pre and post-charge reporting at all”.—[Official Report, Commons, 8/7/10; col. 557.]
That is the point that the noble Lord, Lord Paddick, so forcefully put in his contribution. In other words, there is potentially no redress for those accused who are innocent.
We then have to consider the attitude of the public to those accused of sexual offences, rooted as it is in deep public prejudice. The evidence is there of deep public prejudice towards those alleged to have committed sexual offences. It is in the prison system. Rule 45 allows governors to isolate prisoners, either for their own protection or to ensure good order and discipline. In prison they are often known, I understand, as “the nonce”. It goes further. We now have a concentration of sex offenders, I understand, in special prisons called “treatment hubs”. Indeed, we have learned that these arrangements are necessary, as where sex offenders are placed in mainstream prisons they commonly experience violence, fear, victimisation, abuse, physical assault, threatening behaviour and foreign objects—faeces, urine and even broken glass—in their food. In other words, they are different, particularly where persons have been prosecuted for sexual offences against children.
There is overwhelming evidence that grave sexual offences are in a category of their own and require special treatment. They deserve more than guidelines. They deserve what the Minister at the time, Crispin Blunt, referred to as “an outright general prohibition” on reporting. I would go further and argue that the consultation exercise referred to by the noble Baroness, Lady Williams of Trafford, on
I now address what in my view is the central argument as to why rape cases should be treated as a separate category in terms of anonymity. People with decades of experience of the criminal Bar—there are some in the Chamber today—tell me that the identity of pre-charge accused, and even defendants in the courts, are withheld every day in hundreds of cases. So anonymity is not a new principle. These same lawyers also argue that rape is different from other offences because it is one person’s word against another, particularly where consent is an issue. In these cases, as suggested by the noble Lord, Lord Paddick, there is often no supporting evidence to corroborate the complaint. That is why rape is so different from other offences. Word-on-word cases often leave juries unconvinced. It is often too difficult without evidence to be sure an offence has been committed. I am told that in almost every other criminal proceeding the CPS will require corroborative inculpatory evidence such as forensics, CCTV or even eye-witness evidence. In my mind, therefore, rape is in a very special category of its own and the law should recognise that reality.
My Lords, I strongly support the noble Lord, Lord Paddick, and his very reasonable amendment. The Committee is very lucky to have his expertise. Unfortunately, I have limited experience in the area of PACE and police investigations, so I am unable to offer the Committee my own solution. However, I have no difficulty in seeing that something is seriously wrong and needs urgent attention, and I intend to support the noble Lord vigorously.
Throughout the passage of the Bill, the Minister has never hesitated to rely on the principle of operational independence for the police, but it is a principle that I think is often taken too far and seems to me to be an excuse for doing nothing. Interestingly, when the then Home Secretary, my right honourable friend the Prime Minister, wanted to curb the use of stop and search powers, operational independence did not seem to be a problem.
In public life, some people are important, some are powerful, some are senior and some are all three. Fortunately, I am none of these, so there is no risk to me of being subject to a sensational and false allegation, because no one would be the slightest bit interested.
It is not often that the Metropolitan Police has to investigate someone who is far more senior than the commissioner himself. When such a situation arises, no one—as far as I am aware—is suggesting that an investigation should not take place; far from it. In fact, in recent years we have seen Cabinet Ministers investigated and prosecuted. As far as I know, during Operation Midland Ministers and the Government did absolutely nothing and let the police follow the evidence, and rightly so. We would not expect anything else, and we do not want to repeat the mistakes of the past.
Nevertheless, if the Metropolitan Police decides to investigate someone as senior as the noble and gallant Lord, Field Marshall Lord Bramall, KG—Knight of the Garter—one would expect the commissioner to keep himself very closely informed indeed, not least because it could have adverse effect with our overseas opponents. It also could cause very serious reputational damage to the Metropolitan Police if the operation turned out to be flawed.
The Committee will be aware that Lord Bramall was Chief of the Defence Staff at the height of the Cold War. Our Security Service, over many years, would have formally and informally taken all the necessary steps to ensure that he could be trusted with large amounts of highly classified material. Our “Four Eyes” partners would also have relied on that confidence, but the exceptionally overt Operation Midland investigation could well have called into question the reliability of our vetting procedures.
Lord Bramall would have known everything when he was Chief of the Defence Staff. For instance, in the event of a mass armoured attack on the north German plain, would we have used tactical nuclear weapons? He would have known. What serious weaknesses did we have that our opponents were unaware of? He would have known. What weaknesses did our opponents have that we knew about but they did not? He would have known. If there was any problem with Lord Bramall along the lines alleged, it would have been of strategic significance. It would have been unbelievably serious.
At Question Time last week, the Minister referred to the Henriques report. The report was initiated and the terms of reference were set by the commissioner. Apparently, this means he can also determine what is published and what is not. Therefore, my first question to the Minister is: does the report and its terms of reference cover the failure of the commissioner to terminate the Operation Midland inquiry into Lord Bramall as soon as possible after it became obvious that there was not one shred of incriminating evidence? Secondly, has my noble friend read the report? Will the Home Secretary initiate an inquiry on her own terms, so that she can determine what will be published?
I am extremely unhappy about the procedure for obtaining search warrants, although my advice is that the magistrate concerned probably did the right thing by granting one in the Bramall case. What is the point of involving the judiciary if magistrates grant a warrant in such circumstances as Lord Bramall’s case? What questions were asked of the police requesting the warrant in such an improbable case? For instance, were they asked whether the Security Service had been consulted and whether the sanity of Nick had been checked by a medically qualified person? If the complaint turned out to be fiction and baseless, would a criminal prosecution of Nick be inevitable because that should be the remedy for a malicious and baseless complaint? It would also be interesting to know whether the commissioner asked these questions. It now seems that it may be better to allow a senior police officer to authorise a search rather than relying upon the judiciary. At least there is some mechanism for holding senior officers to account, eventually.
If this totally flawed inquiry can be inflicted upon a retired officer of stratospheric seniority with apparent impunity, what is to protect the ordinary man in the street? It seems to me that the judiciary dish out search warrants like sweets, despite how distressing it must be for an innocent person, whatever their status. So far as I can see, the Commissioner of the Metropolitan Police had the power to terminate this inquiry at an early stage, but chose not to do so for presentational reasons. He could have written a sincere letter of apology to Lord Bramall, but chose not to, presumably on legal advice. Luckily, Lord Bramall has not passed away too soon; it is a pity the same cannot be said for Lord Brittan or, indeed, Lady Bramall.
Both these failings seem to me to indicate a lack of capacity to take an unpalatable course of action. It is not unusual for retired Commissioners of the Metropolitan Police to be offered a seat in your Lordships’ House, but your Lordships’ House is overfull with active Members. We already have far too many Peers, and we already have several retired senior and very senior police officers who are already meeting the needs of the House exceptionally well, not least the noble Lord, Lord Paddick. It is not clear to me why we would need another retired commissioner, and one who appears to be unable to write a sincere letter of apology to a Field Marshal who has had his reputation traduced solely because he is such a senior officer and a great public servant. If the police use their powers carelessly, it is our duty to constrain them.
My Lords, the Committee will be very grateful to the noble Lords, Lord Paddick and Lord Campbell-Savours, for bringing forward this amendment on what is undoubtedly an important issue. I am sure the Committee shares their sense of outrage—I certainly do—at the treatment of Sir Cliff Richard and others who were wrongly and unfairly accused of sexual offences, but I am not persuaded that this amendment is the answer to the problem. A prohibition on publicising an accusation of a sexual offence raises many difficulties.
The first is that publicity can lead others to come forward with supporting evidence that helps to make the case against the person who is rightly accused. Sometimes this is evidence that the person accused has treated them in the same way. They have not previously come forward because they are fearful that no one would take them seriously. It is only hearing that an allegation is being taken seriously that gives them the confidence to come forward.
The problem is that they come forward during the course of the trial only if there is one. By reason of the publicity, they are encouraged to come forward and present evidence that helps to persuade the prosecuting authorities that the matter should proceed to a trial. That is the difficulty. The noble Lord, Lord Paddick, says that justice should not be achieved at any cost. He is right, but to impede convicting the guilty is a very high cost indeed. That is the first problem.
The second problem is that the amendment would prevent the person accused from publicising the allegation against him in order to express his outrage or possibly to seek alibi witnesses. There are cases in which publicity has been sought by the person wrongly accused and this helps to exonerate that person. I appreciate that this amendment would allow the person accused to seek permission from the judge to publicise the matter in the public interest. But if I am wrongly accused of a sexual offence, I should not need to persuade a judge that it is in the public interest for me to be able to publicise the fact. I am entitled to publicise the matter because it is in my interests.
The third problem is common to restrictions on open justice. You can prevent publication of the name of the person concerned, but you cannot prevent people in the know from gossiping. The consequence is that a larger group of people know the name of the person concerned. Those who do not know inevitably speculate. This amendment or any variation of it would not prevent the press from publicising—and they would—that a famous footballer, a well-known pop star or a senior politician has been accused of a sexual offence. It would not prevent the press from publicising details as long as this does not identify the specific politician, pop star or footballer concerned.
No. They would not know who the individual was. This of course is very unfair on famous footballers, well-known pop stars and senior politicians who are not the subject of the accusation. Can they issue a press release to say that they are not the person concerned? That is the third problem.
The fourth problem is that the amendment does not address the difficult question of what is meant by being accused. As drafted, the prohibition on publicity would apply whether or not it is the police making the accusation. It seems to suggest that any accusation of a sexual offence would prevent publicity, but how far does this go?
Fifthly, the amendment fails adequately to address when the prohibition on publicity comes to an end. As drafted, the prohibition on publicity ends when the person concerned is charged with an offence. But let us suppose that the police decide not to bring charges and the person concerned is exonerated. Under this amendment, it seems that no publicity is allowed even at that stage—the person concerned cannot tell the world that he has been vindicated and the press still cannot report that a false allegation has been made.
The noble Lord has listed a number of objections. He is an eminent lawyer. How would he solve the problem in a way that enables people to protect their reputations when they are innocent?
The way that people protect their reputations is that we all have to emphasise the importance of the presumption of innocence. It is quite wrong that people such as the doctor to whom the noble Lord referred are subjected to serious detriment simply because an allegation has been made. That is the basis of English law: you are innocent until you are convicted. That is the principle and I do not accept that the nature of the problem justifies an amendment of this sort, which would lead to all the problems I have sought to identify.
My Lords, notwithstanding the very eloquent speech made by the noble Lord, Lord Pannick, I am in favour of this amendment, subject to one or two points I am going to make. If the noble Lord will forgive me, most of his points are drafting points, which could be dealt with by way of further discussion and a further amendment. I take the point that there are defects in this amendment but in my view, the principle that the noble Lords, Lord Paddick and Lord Campbell-Savours, are aiming at is correct and the arguments that have been advanced by the noble Lord, Lord Pannick, are not correct.
I have two reservations. First, I note that one of the principal mischiefs that this amendment should capture is not dealt with at all: communication by police officers to the press, often for money. I know perfectly well that that is covered by existing legislation and I have no doubt that communication by a police officer giving private information regarding accusations is contrary to the disciplinary code, but if we are moving an amendment of this kind, we should seek to catch the very serious mischief of police officers giving private information to the press.
I really do not think so because it is a question of publication. What is meant by “publication”? It is, I think, different from communication. I think “communication” is a private communication—made, for example, by a police officer to a journalist—and “publication” is a more overt act which happens via the press, the television or whatever. I think they are different. Perhaps that matter could be considered by the noble Lord, Lord Paddick.
The second point concerns gossip. The noble Lord, Lord Pannick, is quite right about this. There will be gossip. Among the great mischiefs are social media and foreign communications, where there is an awful lot of identification. That is a form of gossip that is simply not touched by this amendment and probably cannot be. That is a defect, which I acknowledge even though I support the broad thrust of the amendment.
On the broad thrust, I find the arguments advanced by the noble Lords, Lord Campbell-Savours and Lord Paddick, very persuasive. Harvey Proctor was an old colleague of mine in the House of Commons. We all know that he lost his job and his home, and his reputation has been irreparably damaged by what happened. The publicity regarding Sir Edward Heath is simply absurd but it will taint his long-term reputation. I was PPS to Lord Brittan when he was Chief Secretary to the Treasury. His last days were darkened by the allegations against him, which were wholly groundless. There is therefore a serious mischief that the Committee should seek to address.
The noble Lord, Lord Pannick, has made some important points here but, if he will forgive my saying so, he seems to ignore the principle of proportionality, which should come into play. If we are right in supposing that this is a very serious mischief, we should be cautious about allowing drafting points to stand in the way of confronting it. The question of witnesses coming forward is a proper point. There is no doubt that on occasion, publicity enables witnesses to come forward; that is absolutely true. Surely, though, the proviso in the amendment that would enable the police to go to a judge for the authority to disclose the fact of the accusation addresses that point. Maybe it could be improved upon but the concept of allowing the prohibition to be lifted by a judge is surely a sensible one.
The point the noble Lord makes about the accused person being prohibited from receiving exoneration is a perfectly good one and has substance, but actually it is a drafting point and it would take the noble Lord and myself but a few moments to add the necessary words to the amendment to cover it. I ask the Committee to stand back, look at the extent of the mischief and ask itself whether the drafting objections that have been put forward are sufficiently weighty to stand in the way of our doing justice.
My Lords, many speakers with much more experience than me might wonder why someone who has amendments later in today’s Committee on the rights of and support for victims might wish to speak in support of this amendment. I have experience of cases involving two teachers and very contrasting approaches by the police, both pre-charge and post-charge. The first involved a head teacher who happened to live in the area of his school. A pupil had made a very serious allegation and there was much publicity. Not only did the head teacher and his family have to leave the village but he became seriously ill; in fact he died within two years of the incident going public. It quickly became apparent that this was a fallacious allegation by the pupil, and the police dropped the case. The problem is people. The matter had been all over the local press and radio, and this man’s career was utterly traduced. There is no doubt that it led to the downfall in his health and his subsequent death.
The other case is that of a friend of mine who was abused at his boarding school aged about eight years old. After some decades he finally managed to pluck up the courage to talk to the police, and then the police guidelines were followed. Until after charging there was no advertising at all about the case. At that moment two other pupils from other decades came forward, thus supporting and helping the police and the CPS when they brought their case. Importantly for the initial complainant, they went through only one moment when the entire matter was made public. Had it gone public before then, there would have been repeated incidences in the press and very difficult times until it came to trial.
This is about justice. It is absolutely right that there should be justice where a complaint has been made and no charge follows. However, there is also an issue for the victims and the lives they have to lead if false publicity is given and nothing then follows; they also have to live through substantial amounts of publicity. I do not have the knowledge that the noble Viscount, Lord Hailsham, does, but I support the amendment. If it needs redrafting to finesse it, that is absolutely right—provided that there is the chance at an appropriate moment, and it seems to me that charging is that moment.
My Lords, we know that this is an issue on which it is very difficult to find a satisfactory compromise. I am also conscious of not taking drafting points which might serve to divert us from the central issue. However, I am a bit concerned about this proviso. I understand that it is a sensible idea to have one, so that a judge can be satisfied that it is in the public interest to remove the restriction in respect of a person. If that is to be meaningful, will the noble Lord, Lord Paddick, explain to the Committee in what circumstances he envisages an application being made and who will make it? How is the public interest going to be defined? Whose interest is the public interest? Reference was made to a case where there was corroborating or forensic evidence being circumstances in which a judge would be satisfied. However, many of these claims may concern young people who did not know they could complain. Many years have gone past; there is no forensic evidence. As far as they know, there may be no corroborating evidence. Are they to come within that exception? How is the judge to assess this? If this is to be a meaningful exception to change the law, we need to set out with some precision the sorts of factors that ought to be taken into account.
My Lords, I have great respect for both my noble friend Lord Paddick and the noble Lord, Lord Pannick. On this occasion, it is with the former, rather than the latter, that I agree, although one takes on either of them with a measure of reluctance and trepidation. I was partly struck to say something in this debate when the noble Lord, Lord Pannick, asserted that to impose obstacles to convicting the guilty is a very high cost. We actually pay this cost throughout our criminal justice system. It would be a lot easier to convict some people that we and the police think are guilty if we did not have to prove that they actually are, to the satisfaction of a jury, or if various procedures, such as disclosure, did not have to operate—the prosecution must disclose any evidence it comes across that might support the innocence of the accused. Many of these things make it more difficult to convict people, but they are part of the protection for the innocent and uphold the principle that someone has to be proven to have committed an offence.
Much of the argument about whether the kind of prohibition which my noble friend has advanced—and I agree this should be done—revolves around whether people who have had similar experiences of the accused will come forward. There are several points at which, if this clause were in operation, they would still be able to do so: between charge and trial or between the various stages of a trial process, for example between committal and trial. I am not an expert in this, but it appears that in most of the cases where this has happened it has been at that stage, rather than at the stage of initial accusation, except perhaps in some of the most notorious cases, which have been referred to this afternoon, where injustice has been done by publicity.
As the noble Lord, Lord Faulks, correctly pointed out, the proviso has to be precisely worded. The point of the proviso is that anonymity might be broken if the police and prosecuting authority consider that they would like to go to trial and the evidence is not quite strong enough for them to do so but there is some knowledge that it is likely that people will come forward. A case where there is substantial evidence that does not quite meet the Crown Prosecution Service’s normal criteria, yet there is reason to believe that there may be others, might be just the circumstances in which an earlier breach of anonymity would be justified.
The weakest point put forward by the noble Lord, Lord Pannick, was the one about gossip and speculation. The whole process is attended by the risk of these. If the name of an accused person cannot be disclosed prior to charge, there may be those who seek to gossip about it. That is something we should try to deal with in whatever way we can. But of course the same applies to the anonymity of the victim. Most of us have read newspaper stories which speculate and hint at who the victim might be in such a case. We cannot use that as a reason not to afford protection to the victim, and we should not use it as a reason not to afford protection to the accused at a stage in the process when it is unreasonable to visit a punishment more severe than applies in many other criminal offences, arising out of the publicity and shame and loss of office and other consequences that have attended some of the cases that we have heard about.
The noble Lord, Lord Pannick, produced several convincing examples of drafting that might be improved in this Bill, but that is what it was—the principle needs to be addressed, and it is not adequately satisfied by guidelines. Even though the better the guidelines the better the situation, guidelines fall short of the value of a firm principle enshrined in law, which the criminal justice system can itself uphold.
My Lords, I introduce what I want to say by suggesting that we need to question certainties that anybody advances in this debate. I went to, was well informed by and was deeply sympathetic to, the meeting arranged by the noble Lord, Lord Paddick, where we heard the overwhelmingly poignant stories of Mr Gambaccini, Lady Brittan and Sir Cliff Richard, and I thought, “That’s a certainty, isn’t it?”. But then I remembered an experience that I had when I was a young member of the Bar, of a client in the Midlands arrested for murder. If he was arrested, it meant that there were reasonable grounds for suspicion—and there were. It was quite a notorious case, and the publicity given to his arrest meant that two people came forward who were quite unconnected with him and were able to establish an alibi for him. Another man was subsequently convicted for the murder, so this man was totally innocent. If those people had not come forward, he would have remained in custody pending trial. They might have come forward by trial, but he would have been in custody for many months before his trial began—and, if they had come forward then, the argument would have been, “How can they be so sure that they were together or they saw him in this particular place on this particular night?”.
So there are certainties both ways. I want to contribute to the debate by making two separate and additional points to the ones that have been discussed—perhaps one to meet a point raised in discussion. It is said that rape and sexual crime is particularly awful, and there is usually plenty of other evidence when other crimes are concerned. Well, with murder, the allegation that a mother has killed her children is not the kind of allegation that can be trivialised. There are cases in which mothers alleged to have killed their children have not done so. Noble Lords are all familiar with the phrase “cot death”, although it summarises a much more complex idea. There the question is whether the children were murdered at all, or whether they died from natural causes. It is a terrible allegation to have to face. Do we say, “Ah, well, it does not matter if they have publicity”?
Then there is terrorism. Half the time with terrorism, if the police did not act before the bomb went off, on the knowledge that they have, we would be blown up. So terrorist offences usually consist of conspiracies and offences contrary to various terrorism Acts which never came to fruition. The whole case depends on demonstrating that there was going to be a bomb, or whatever, and it never happened. We have to be careful about the sorts of cases that we are thinking about. I suspect that causing death by dangerous driving is a dreadfully serious allegation to the public mind—and certainly, if it is said to be accompanied by drink, of course it is a dreadfully serious allegation, because it is a dreadfully serious crime.
I ask noble Lords to pause. I understand that sexual crime now seems to be at the forefront of public concern, but let us not just dismiss those other crimes as really not so important, so we do not really need to preserve the anonymity of the accused for them because it does not really matter so much. We need to have a clear principle about this. I think that we should have a principle that either says yes or no to publicity or anonymity at various different stages. But I do not, I regret to say, share the view that sexual crimes should be treated as entirely one-off, on their own, and separate.
There is one more point that I want to add to the discussion. We are working on the basis that the points made by the noble Lord, Lord Pannick, are drafting points—I do not share the criticism made of him. But drafting points matter in this context. Let us pause to consider what arrest means, if we are saying that “don’t disclose anonymity” stands on arrest but, once the charge happens, the anonymity goes. Pitch the time where you like—arrest means that there are reasonable grounds for suspicion. It means that you are incarcerated; it means that you have lost your liberty and that, lawfully, you have lost your liberty, and that it is justified because there are reasonable grounds for suspicion. I have concerns about a blanket prohibition imposing silence on the media in circumstances where somebody’s liberty has been taken from him or her, even if for a short time. That is not how we work in this country. We do not want people locked up for any time at all without anybody being able to say so. Those are considerations that I suggest should be added to the thought that we give to the issues in this debate.
My Lords, much gratitude is due to the noble Lords, Lord Paddick and Lord Campbell-Savours, for introducing and seconding this amendment, drawing on their long experience of work and reflection in relation to a very important issue. I shall return briefly to a question that has come up naturally in the course of our discussion—the simple question of whether the presumption of innocence until proved guilty is still in practical, effective existence where allegations of sexual abuse are concerned. Last week’s Henriques report showed that during Operation Midland innocent people were treated as if they were guilty, even though there was no serious evidence against them. A recent detailed study by the Oxford University Centre for Criminology concluded that there has been a cultural shift towards believing allegations of abuse and the presumption is now in favour of believing those who present themselves as victims. The study documents in great detail the immense harm done to very large numbers of ordinary, innocent people who had unfounded allegations made against them. In any walk of life, a person whose name appears publicly in relation to a mere allegation of abuse can expect to suffer much hardship. This wholly unsatisfactory state of affairs extends from state to Church, from the living to the dead.
As I have mentioned on previous occasions in your Lordships’ House, grave damage has been inflicted on the reputation of one of the greatest 20th century bishops of the Church of England, George Bell, after a completely secret and internal investigation of a single, uncorroborated complaint, made many decades after his death. At least the injustice done as a result of Operation Midland has been the subject of a thorough authoritative inquiry. In June, the Church announced an independent review of the case involving Bishop Bell. Four and a half months later, we still await the name of the review’s chairman and his or her terms of reference. There is no right reverend Prelate in the Chamber at the moment but I hope that these comments will be noted by the Lords Spiritual.
The authorities of Church as well as state must recognise that we need not just to halt but to reverse the trend that has eroded the presumption of innocence. We need another cultural shift, a decisive, morally responsible one that will stop the ruin of innocent lives and reputations. This amendment, I believe, would help us to achieve that shift.
My Lords, I support the amendment, although there should of course be amendments to the drafting. I accept the point made by the noble Lord, Lord Pannick, about anonymity acting to the detriment of the accused without his consent. I suggest that consideration be given to redrafting the amendment to permit the accused to waive the right to anonymity. On reconsideration, I should add that I consider my earlier intervention on the noble Viscount, Lord Hailsham, to be ill advised: the amendment does not in fact cover communication privately by police officers and I accept that it should.
There has been widespread discussion in the press of the independent review by Sir Richard Henriques into the failure of Operation Midland, the reliance placed on accounts given by, in particular, one unreliable witness and baseless allegations that had been made. Those allegations were, as has been said, permitted to do untold harm to the reputations of a number of prominent men who had given their lives to public service.
The noble Lord, Lord Pannick, reminded us that Sir Richard makes the case for increased anonymity, but his recommendation is that there should be anonymity only pre-arrest. He draws back from recommending anonymity at all stages prior to charge. His reasoning, in paragraph 1.67 of his report, is as follows:
“I consider it most unlikely that a Government will protect the anonymity of suspects pre-charge. To do so would enrage the popular press whose circulation would suffer”.
If that is the reasoning behind his conclusion, I disagree. He goes on to say:
“Present arrangements, however, have caused the most dreadful unhappiness and distress to numerous suspects, their families, friends and supporters”.
In that, Sir Richard is plainly right.
The question of when anonymity should be lost is one of balance. For my part, I do not believe that protection ought to be lost at the date of arrest, when the arrest can be made—as the noble and learned Lord, Lord Judge, points out—on reasonable suspicion only. I accept that the consideration that comes into play is whether, as he suggests, anonymity should apply only to sexual offences, rather than more widely. In my view, the particular position relating to sexual offences justifies the difference when we weigh the balance. He is of course right to say that what needs to come into the balance is the risk of injustice flowing from anonymity, just as there may be—indeed, we know there is—a risk of injustice flowing from the exposure that comes from the lack of anonymity.
As we all know, suspicion—even reasonable suspicion sufficient to ground an arrest—can turn out to be entirely misplaced. There may be a reasonable and truthful explanation for the circumstances that give rise to the suspicion justifying an arrest. While those circumstances may demand that explanation, an arrest can legitimately take place before the suspect has had a chance to give the full explanation required. When a suspect is charged, however, it is on the basis of a different test and different circumstances. First, the police must have the evidence that they believe will sustain a prosecution and conviction, if not refuted. Secondly, the suspect will generally have had a full opportunity to give a considered explanation of the circumstances, if there is one. Public exposure damages a suspect’s family life, his privacy and his reputation—for we are talking about men predominantly. The damage is largely irreversible, even where allegations are later withdrawn or found to be baseless. Death has sometimes made the damage and injustice total.
When striking a balance between the right of a suspect to be protected from that damage and the right of the public to know, the balance tips, in my view, in favour of the public’s right to know at the point of charge, not at the point of arrest. I am not persuaded by the argument that pre-charge anonymity will prevent other victims coming forward altogether. It may be that there will be a delay in such victims coming forward and they will do so after charge, rather than after arrest. That gives some opportunity for witnesses to come forward—as in the case of the murder client of the noble and learned Lord, Lord Judge, which of course could happen in the case of a sexual offence client as well. There is delay to the stage at which anonymity is lost, but it is not lost for ever and there is no reason to suppose that others will not come forward at that stage. My noble friend Lady Brinton’s point, that there should be protection also for the victims from early disclosure until it is established by charge that there is going to be a case, is an important one. I agree with my noble friend Lord Beith that the point made by the noble Lord, Lord Pannick, on gossip and speculation, applies wherever there is going to be anonymity at any stage. The argument that we have to address is at what stage anonymity should be lost.
The only reasonable point that can be made against this amendment is that there may be cases where further witnesses might come forward with legitimate and admissible similar fact evidence which might justify the charge where otherwise no charge would be brought. However, for my part, I have concluded that such cases will be rare and that most can be met by the proviso included—though perhaps to be redrafted—in the amendment. It is a question of balance but, in my view, the possibility of similar fact evidence being lost and justice thereby being thwarted is of lesser weight than the inevitable damage caused by premature exposure of an innocent suspect’s identity.
My Lords, as we have seen from this debate, this issue raises strong feelings. I will say before I go any further that the overwhelming majority of those who have spoken so far will not be in agreement with what I have to say. It has not been our policy, as my noble friend Lord Campbell-Savours in effect said, to support anonymity for rape suspects before they are charged or indeed those suspected of other sexual offences. There are almost no cases, at least as I understand it, where suspects are specifically granted anonymity in this way in our legal system. I appreciate that the amendment enables a judge to remove the restriction on identifying the person concerned where they are satisfied that doing so would be in the public interest. But we have yet to be convinced that this test will not in reality lead to fewer prosecutions and fewer victims of sexual assault coming forward than is the case even now. Granting anonymity specifically for those suspected of sexual offences could imply that a person making a complaint in respect of such an offence was not to be believed in the same way as someone making a complaint involving another individual in relation to any other kind of offence, such as child cruelty.
During the passage of the Sexual Offences Act 2003, one reason we gave for not changing the law was precisely to avoid giving the impression that there is a presumption of doubt about the credibility of the complainant in sex offence cases, as well as the fact that naming a suspect in such cases can lead to other victims coming forward—as it did, for example, in the cases of Rolf Harris and Stuart Hall, and the case for a credible and successful prosecution was enhanced as a result. Many of Jimmy Savile’s victims said they thought they were the only ones, and doubted whether anyone would have believed them if they had come forward, bearing in mind the celebrity status of the offender. The position, and their approach, changed somewhat when they found out, through the absence of pre-charge anonymity, that they were not the only ones.
In the light of what has been said in the debate, perhaps it is worth stating that the victims of sexual offences have, of course, also had their lives darkened—not least when the sexual offences were committed by well- known public figures. Of course, the victims themselves rarely are well-known public figures.
I understand that the coalition floated plans to introduce anonymity for rape suspects in 2010, but after carrying out an assessment they concluded there was insufficient evidence to justify a change, and that a change would be likely to have a negative impact on justice for rape overall.
The argument is made that without anonymity, those suspected of sexual offences would suffer shame and harm to their reputation—usually as a result of how the media choose to report such cases even if the person has not been, and never is, charged with any offence. That may be quite true in some cases—more so if the police mishandle their investigation in the way highlighted in the report on the Metropolitan Police released a week or so ago. This argument would also apply, presumably, if someone were accused of murder, serious assault, child cruelty, major fraud or other forms of serious dishonesty and corruption—as we saw with the naming in the media of an alleged suspect, who had not committed the offence, in a particularly unpleasant murder case in Bristol a few years ago. The police have discretion over the naming of suspects, and should do so only when they have good reason to suspect that doing so might produce corroborating evidence that would increase the likelihood of a successful prosecution.
As for the concerns sometimes expressed about false allegations, I believe I am right in saying that the Crown Prosecution Service has found that the number of false allegations is no higher for sexual offences than for any other type of crime. Many would argue that the real problem is still the reluctance of victims to report rape and other sexual offences, and the reasons for that. It has been suggested—although I cannot vouch for this as the correct figure—that perhaps only 15% of rapes are ever reported to the police. Young people and children are targeted more than most by those who commit such offences, who are often repeat offenders. The report on child sexual abuse in Rotherham found that when offenders discovered, over time, that they could act with impunity and were unlikely to be challenged, they simply increased the scale and level of violence in their offending.
We understand why the approach called for in the amendment is being pursued. We do not argue that no case can be made for the amendment, but rather that the case that can and should be made against it is stronger and more powerful. Unless firm evidence can be produced that the terms of the amendment would not result in more perpetrators of sexual offences escaping prosecution because others who may have been the subject of similar assaults do not come forward—because they are unaware that the individual is being investigated, and instead feel that if they did come forward they would be on their own—the amendment cannot be supported.
My Lords, I thank all noble Lords who have spoken in the debate. The variety of views on this subject speak to me of just how difficult an issue it is. I also particularly thank the noble Baroness, Lady Brinton, the only woman apart from myself to speak in the debate. This is a very sensitive issue, and many noble Lords have talked about getting the balance right. We think that the Government have got the balance right, and I will explain why.
I shall start with the report by Richard Henriques on the Metropolitan Police Service’s handing of its investigations into allegations of sexual offences by persons of public prominence. That is a further element contributing to the debate. In answer to the point made by my noble friend Lord Attlee, I have been fully briefed on that report. It was commissioned by the Commissioner of the Metropolitan Police, and as I said to this House the other day, the report—including its publication—is a matter for him and for the force. The commissioner has made a public apology to Lord Bramall, to Lady Brittan and to Harvey Proctor for the impact that Operation Midland had on their lives.
At the outset, let me say that the Government fully understand the anguish felt by those who have had their reputation traduced in the media following unfounded allegations made against them. The notion that someone is innocent until proven guilty is central to our justice system and to the rule of law, so the Government have every sympathy for the underlying aim behind the amendment. I will not go into what should be redrafted, but will talk about the amendment as it stands.
The Government also start from the position that there should, in general, be a presumption of anonymity before the point of charge. I believe that there is also a general acceptance that there will none the less be exceptional circumstances in which the public interest means that a suspect should be named. If there is a divide between noble Lords and myself on this issue, it is not therefore one of principle but is about how best to give effect to the shared policy position. For the Government’s part, we are not persuaded that legislation is the right way forward at this time.
One of the principal arguments put forward in support of retaining the public interest exception is that, as the noble Lord, Lord Pannick, said, there will be circumstances in which the police need to publicise a person’s identity to allow further witnesses to a known offence to come forward, or further unknown offences by the same person to come to light. As he also said, witnesses can come forward at a trial only if there is, in fact, a trial. He also made the further point that the accused could themselves create their own publicity around an event.
“While we are clear that transparency and consistency should be at the heart of the criminal justice system, … we recognise that there is a difficult balance to strike in some criminal investigations between the operational advantages of naming suspects and respecting suspects’ right to privacy”.
As noble Lords will know, the issue of anonymity in relation to sexual offences has been debated in this House over many years. Anonymity for complainants in rape cases was introduced in 1976. It was subsequently extended to sexual offences generally. Anonymity for defendants who have been charged with an offence was introduced at the same time, but abolished in 1988. Defendant anonymity was subject to exhaustive consideration before and during the passage of the Sexual Offences Act 2003.
As the noble Lord, Lord Rosser, said, in 2010 the then coalition Government published independent research relevant to defendant anonymity in rape cases, which found,
“insufficient reliable empirical evidence on which to base an informed decision on the value of providing anonymity to rape defendants. Evidence is lacking in a number of key areas, in particular, whether the inability to publicise a person’s identity will prevent further witnesses to a known offence from coming forward, or further unknown offences by the same person from coming to light”.—[
The coalition Government declined to proceed with introducing defendant anonymity in rape cases unless the evidence justifying it was “clear and sound”. In the absence of any finding to that effect, they reached the conclusion that the proposal did not stand on its merits and would not be proceeded with further.
While the amendment before us would confer anonymity on suspects rather than defendants, I note the preceding history to highlight the challenges we face in coming to an equitable view on this sensitive issue. There are powerful arguments against conferring anonymity on either suspects or defendants of sexual offences simply as a quid pro quo for that enjoyed by complainants. However, I also recognise that those whose identity is made public, be they persons of public prominence or not, may suffer unjustifiable reputational damage. Noble Lords have given many examples of those individuals. While we may personally empathise in individual cases, this should not blind us to the bigger picture and the very significant reasons that underpin the current regime.
As I have said, it is a fundamental tenet of our justice system that everyone is innocent until proven guilty. There must never be an assumption that being charged or arrested for an offence indicates that a person is guilty of a crime. Introducing a statutory scheme for pre-charge anonymity for sexual offences could be seen to undermine that principle. Indeed, while it is true that a suspect who is not further proceeded against in respect of a sexual offence may nevertheless suffer reputational damage, the same may be true of any other serious offence, such as murder, theft or fraud, as noble Lords have said. As with these other offences, it is absolutely right and proper for the police to have operational independence in deciding whether to name a suspect.
The police are guided in making such decisions by the College of Policing’s authorised professional practice material Guidance on Relationships with the Media. The current guidance makes clear that decisions should be made only on a case-by-case basis and the police should not release the names of those who are arrested or suspected of a crime unless there are clearly identified circumstances to justify it. These would include incidences, for example, where there is a threat to life or to assist the police in the detection or prevention of crime.
The College of Policing is currently developing new authorised professional practice on media relations and has recently undertaken a consultation as part of its development. The consultation closed in July and the college expects to publish its response to the consultation in the new year. It would not be right, therefore, for the Government to pre-empt the outcome and we will await the conclusion of the college’s review. However, the Government firmly believe that non-statutory guidance, rather than primary legislation, is the appropriate vehicle for guiding the police in these operational decisions. It is vital that the police are able to exercise their own judgment and act swiftly in the circumstances where releasing the name of a suspect may prevent further harm, for example.
I must emphasise that public reporting of a suspect’s name is unusual, but in certain circumstances the police authorise release so that any other potential victims of a suspect are encouraged to come forward. The introduction of a statutory scheme would hamper the police’s ability to act in this way. We know that such identification can help other victims to recognise that they are not the only ones who have suffered sexual abuse—as the noble Lord, Lord Rosser, rightly articulated—and this might encourage them to overcome their reluctance to come forward. Victims must feel that they are able to come forward and report abuse to the police as well as getting the support that they need. We have seen recently an increase in the number of offences recorded. That is thought to be the result of increased willingness to report among victims and action taken by police forces to improve their approach to investigating sexual abuse. As the noble Lord, Lord Rosser, said, convictions for this offence are still woefully low.
In March this year, the chief executive of the College of Policing, Alex Marshall, wrote to all chief officers and PCCs following a number of high-profile cases concerning non-recent child abuse which had focused public attention on the police approach to victims, both at the point of reporting and in investigating the crime. Mr Marshall’s letter put on record that,
“In cases involving sexual offences, substantial efforts have been made to improve the confidence of victims to come forward and report crimes to the police. It is important that progress is not lost”.
I cannot emphasise this point enough. We must not undermine victims’ confidence in our response to sexual offences. Agreeing this amendment could send a message to sexual offence victims that they are less likely to be believed than victims of any other crime. This would be an undeniably retrograde step.
As has been highlighted in the debate we have had today, there are two issues in relation to this matter. The first is the right of the police to name individuals and the second relates to cases in the media where those being investigated, but who have not been charged, have been named. A number of these cases highlighted in the media have been as a result of information being provided not by the police but from other sources. The guidance from the college to the police does not interfere with the rights of the media to publish information obtained from another source, for example, where such information is provided by a victim of crime or a witness to the crime. The press is self-regulated and develops its own codes of practice. Any reporting which breaches an individual’s right to privacy would need to be demonstrably in the public interest. The Government are committed to an independent press, free from government interference. The majority of the press are members of the Independent Press Standards Organisation and are held to account via the Editors’ Code of Practice. The code stipulates:
“Everyone is entitled to respect for his or her private and family life, home, health and correspondence, including digital communications”.
As noble Lords will be aware, we already have a number of remedies in our justice system to redress the balance where individuals feel they have been treated unfairly—
May I ask the Minister a simple question? She used the phrase,
“demonstrably in the public interest”.
What was demonstrably in the public interest in the naming of Sir Cliff Richard for an offence he did not commit, and Leon Brittan, Ted Heath and Paul Gambaccini? What was demonstrably in the public interest in those cases?
My Lords, I will not talk about individual cases, and noble Lords would not expect me to do so. I am talking about the code of practice for the press. I have also just talked about the guidance from the College of Policing. We are committed to an independent press. Noble Lords will already be aware that we have a number of remedies in our justice system to redress the balance where individuals feel they have been treated unfairly by the media and others. This includes resolution through the courts.
In conclusion, and for the reasons I have outlined, I am satisfied that there is an operational need for the police to be able to determine whether to name an individual ahead of charge and that adequate provisions already exist in current legislation and practice to safeguard those accused of a crime without the need for legislating for pre-charge anonymity. I hope that at the end of this rather long debate the noble Lord will feel able to withdraw his amendment.
My Lords, I am very grateful to the Minister and to all noble Lords who have participated in this debate. I am particularly grateful to the noble Lord, Lord Campbell-Savours, for supporting this amendment.
I have to make it clear to the noble Earl, Lord Attlee, that this amendment is not an attack on the Metropolitan Police. It operates in what some might find a very strange way but there are reasons the commissioner is distanced from the operational decisions made by his officers, although I will not go into them now. The police have always had the problem that when things go wrong they are held back from apologising by their own lawyers, for reasons which will be apparent to the lawyers in the Chamber.
On what the noble Lord, Lord Pannick, said, I agree with my noble friends that these are drafting issues. I said that the reason for this amendment was to allow a debate. The wording is actually a copy and paste of the protections provided to the victims of sexual offences; no doubt many of the noble Lord’s criticisms could therefore be directed at the current legislation. I will not go over what he said as criticisms have been made by other noble Lords and I do not want to carry on in that vein.
I am grateful to the noble Viscount, Lord Hailsham, for saying that, in principle, he felt this was correct. It is interesting that he said that the unauthorised disclosure of information by police officers should be addressed, particularly in light of the fact that the Government want to put a stop to part two of the Leveson inquiry, which is supposed to look at the relationship between the police and the press. The Government seem determined not to allow it to go ahead so maybe we should sidestep it and include this issue in the amendment, which we will no doubt return to on Report.
In response to the noble Lord, Lord Faulks, I gave an exact example of an exceptional circumstance where such an exemption might take place and I do not want to detain the Committee by repeating it. However, perhaps “in the interests of justice” might be a better phrase to use than “in the public interest”.
I am grateful to the noble Lord for giving way. Perhaps he could help the Committee with this: the amendment would change the moment when anonymity is lost from arrest to charge. As the decision an officer takes about whether to charge is a very difficult one, does the noble Lord not think that there might be a temptation on the part of the police to charge rather earlier than they should—or at all—because then anonymity would be lost and they might be able to get more evidence? That would be a distortion of proper police practice.
I am quite surprised that that argument is being put forward. The noble Lord will know that in serious cases such as sexual offences the police cannot charge on their own account but have to have the agreement of the Crown Prosecution Service. I am sure that the noble Lord is not suggesting that the Crown Prosecution Service would be tempted to charge somebody in the absence of available evidence—the police would argue that the contrary is the case.
I take my life in my hands in addressing the comments of the noble and learned Lord, Lord Judge. In answer to his question, yes, it is important, and my noble friend Lord Marks has come up with the solution of including in the amendment the proposal that the identity of the accused should not be put into the public domain without his consent. That would cover the example that the noble and learned Lord gave of alibi witnesses being sought.
We are not saying that sexual offences are more serious than murder or terrorism. We are saying that there are many sexual offences and that particularly when it comes to historic offences there are questions of consent—perhaps—or there is no evidence at all and it is one person’s word against the other. That is not the case with murder or terrorism. Even when there is conspiracy to commit a terrorist act, evidence is gathered, whether, for example, from emails or through security services bugging rooms in which these people are operating. For those offences, there is some tangible evidence and that is what makes sexual offences different in a real sense. That is not to say that they are more serious—they might be so in terms of the reputational damage done to the individuals concerned but not in terms of the offence.
As a police officer who exercised the power of arrest on hundreds of occasions, I am not as confident that the level of reasonable cause to suspect that leads the police to arrest somebody is as high as the noble and learned Lord suggested. Yes, liberty is taken away, and somebody should not be deprived of their liberty without anybody knowing about it. However, if we put it into the amendment that the identity of the person should not be released without their consent, that issue would be addressed. Presumably it could also be given by the lawyer in particular circumstances.
I am very interested in what the noble Lord, Lord Lexden, said about the presumption of innocence and what he referred to as a cultural shift away from it. Everybody agrees that the presumption of innocence is at the heart of our criminal justice system, but, in practice, it is not being reflected in the minds of the public or the editors of certain newspapers. We have to deal with that reality and not some theoretical construct, and regrettably that is where we are going as far as the presumption of innocence is concerned in the minds of many members of the public.
The noble Lord, Lord Rosser, cited Stuart Hall as an example of a case in which more people came forward as a result of an arrest, but Stuart Hall was arrested and charged on the same day. In the case of Jimmy Savile, people did come forward to the police and were not believed; that was not because he was given anonymity but because there was something fundamentally wrong with the culture of the police at the time and they did not believe vulnerable victims. That is the issue that needs to be addressed.
We also have to ask ourselves about publicising cases which inevitably collapse. What impact does that have on victims of sexual offences who may be afraid that their genuine concerns will also result in a collapsed case? That is no doubt what is happening at the moment with the man who made these allegations and is known only as Nick. I am sure there are tabloid newspapers trying to identify that individual in order to give him negative publicity.
In response to the Minister, this is a difficult and sensitive issue. It is a question of balance and we have heard from noble Lords who have spoken in the debate that the majority feel that it is not right at the present time. The noble Baroness said that legislation is not the way forward at this time, but times have changed, as the noble Lord, Lord Lexden, said. People’s attitude towards those accused of sexual offences has changed so we need to look at this again, which is why I have brought forward the amendment and why we are having this discussion.
As I said in my opening remarks, everything needs to be done to encourage any victim of a sexual offence to come forward and report it to the police. Systems need to be in place within policing so that if allegations are made in different parts of the country against a long-distance lorry driver, for example, they are then matched up in order to reinforce the situation. But in saying that the College of Policing is doing a review when guidance is already in place which says that the presumption should be against identifying the accused, how on earth does that square, for example, with the way Sir Cliff Richard was treated by South Yorkshire Police? How does that follow College of Policing guidance, and how is a review of that guidance going to change police practice in the future?
On guidance to editors or the code of practice for the press, I have to question whether the noble Baroness reads the press and the attitude taken by its members and how a coach and horses is driven through the guidance to editors on an almost daily basis. This is why guidance is proven not to work. In marginal cases there may be some loss in terms of people not coming forward after someone has been arrested if no publicity is given, but people come forward predominantly when someone is charged and there is some certainty that a court case will happen, not at the point of arrest. That is why we will return to this on Report, but at this stage I beg leave to withdraw the amendment.
Amendment 219A withdrawn.
Moved by Lord Marks of Henley-on-Thames
219B: After Clause 143, insert the following new Clause—“Evidence about complainant’s sexual history(1) The Secretary of State shall within six months of the day on which this section comes into force, publish a report on the operation of section 41 of the Youth Justice and Criminal Evidence Act 1999 (restriction on evidence or questions about complainant's sexual history).(2) The report shall, in particular, include information regarding—(a) the number of applications made for leave in accordance with subsection 41(2) of the Act;(b) the number of such applications granted;(c) the number of such applications refused;(d) the number of prosecutions not proceeded with because of the victim’s concerns as to an application for leave;and to the extent numerical information is not available, as full information as possible regarding such matters.(3) The report shall include any proposals for the amendment or repeal of section 41 of the Act.”
My Lords, I rise to move this amendment tabled in the names of my noble friends Lord Paddick, Lady Ludford and myself. The appeal in the Ched Evans case has raised fears that complainants will be deterred from reporting rape because they might be cross-examined about their sexual history under Section 41 of the Youth Justice and Criminal Evidence Act 1999. Those fears are real and if they are justified that would suggest that a change to Section 41 is necessary. I say at the outset that this is surprising because ever since Section 41 was passed, it has been assumed that it is very restrictive and that evidence of a complainant’s previous sexual history may be adduced or cross-examination allowed only in very unusual circumstances.
“my view is that the 1999 Act deals sensibly and fairly with questioning and evidence about the complainant’s sexual experience with other men. Such matters are almost always irrelevant to the issue whether the complainant consented to sexual intercourse on the occasion alleged … or to her credibility”.
Section 41(3) of the 1999 Act provides that evidence or proposed cross-examination to be conducted must relate to sexual behaviour that is so similar to the defendant’s account of the incident in issue that the similarity cannot be explained as a coincidence.
The Court of Appeal held that the Evans case was a rare case. Lady Justice Hallett pointed out that to be admissible, evidence or cross-examination did not have to relate to the sexual conduct of the victim that was bizarre or unusual, and in that she may have been departing from what had previously been thought the correct approach. What she said that it merely had to be sufficiently similar that it could not be explained as a coincidence. The Court of Appeal dealt with this as a matter of fact and degree, and of course in that it was plainly right to do so.
The Ched Evans case, however, has generated a wave of protest and it may be that on the facts of that case there was a borderline issue. It may be that the public view of the alleged victim’s conduct might not strike everyone as meeting that test. But it has provoked calls for a complete ban on cross-examination or evidence of a victim’s previous sexual history under any circumstances. In promoting this amendment, we have sympathy with those calls. The unwillingness of women to come forward with reports of rape is real and understandable, and as a result many offences go unprosecuted, as was said in the previous debate. We must do everything we can to ensure that rapes are reported. However, there may be cases where a dispassionate observer might think that the exclusion of a relevant account of previous sexual behaviour could lead to genuine injustice and unfair convictions where consent was an issue.
We have concluded that the call for a precipitate change to Section 41 to bring in a complete ban on evidence or cross-examination about previous sexual history would be unwise without detailed knowledge of how the exceptions to the ban on the introduction of sexual history have been used since 1999. We therefore welcome the Attorney-General’s response on
“We need to understand whether a change in the law is appropriate and, if not, whether it is sensible to look at the guidance that is given to judges about when such evidence is admissible”.
Our amendment calls for a report on the operation of Section 41 on applications to court for adducing evidence or for cross-examination, on the grants and refusals of such applications, and on whether prosecutions have been dropped for failure to be able to adduce that evidence. We are aware of only one 2006 study for the Home Office on this issue and little appears to have happened as a result. I invite the Minister to say whether anything has happened.
One further point that I would make before closing is that it seems surprising that the statement of reasons of the Criminal Cases Review Commission for the review of Mr Evans’s conviction under the Criminal Appeal Act 1995 or the statement of reasons given for any other such review are not publicly accessible. The reason for that is that Section 2 of the 1995 Act is drawn to provide that disclosure by officers of the commission of the statement of reasons is an offence, although disclosure by the proposed appellant— Mr Evans in that case—would not be an offence and he could publish the reasons if he wished.
I invite the Minister and the department to look at this because it seems odd. A review is ordered by the commission on the basis that it has come to light that there is relevant and admissible evidence that was not available at trial and that may undermine the safety of the conviction. Why should it be that after the appeal and any retrial are over, and any possible risk of damage from publication has passed, the statement of reasons should not be available in full to enable the public to understand what led to the Court of Appeal’s reconsidering the conviction in the first place? I beg to move.
My Lords, I will be very brief. I find myself in agreement with much that has been said this evening by the noble Lord, Lord Marks, but on this occasion I must state a thorough disagreement. I speak as somebody who has been at the criminal Bar, off and on, for 40 years.
Section 41 of the Act imposes substantial restrictions on the ability of defence counsel to adduce evidence of previous sexual conduct, or to start on a process of cross-examination as to that. I am sure the noble Lord has reminded himself of the terms of the restrictions in Section 41, which are set out conveniently in Archbold. I have taken the liberty of bringing a photocopy of that to this Committee. The restrictions are considerable, but in my opinion—based on a long period at the Bar—there are a very limited number of circumstances when it is necessary, to secure justice, that the defence counsel brings forward instances from the complainant’s past sexual life and has the right to ask questions about that. As it is set about by the restrictions of the judge’s discretion—which is set out in statute—I see no reason to depart from the existing legislation.
I am sure the noble Lord has consulted Archbold, Blackstone’s and Cross on Evidence. I would urge your Lordships in this Committee who have any doubt about this matter to look at those authoritative textbooks, where they will find satisfactory examples of instances when the courts have allowed such evidence and cross-examination.
The noble Lord is effectively calling for a review and it is very difficult, as a matter of principle, to stand against a review. I am sure it does not have to be in legislation. But it is calling for a review, and if enough of your Lordships’ Committee want one, so be it. However, in my view, the existing legislation is right and I very much hope there is no departure from it.
My Lords, I thank the noble Lord, Lord Marks, for raising the important issue of the protection of complainants of rape and sexual offences from being questioned about their sexual history. It is vital that victims have confidence to report crimes as terrible as rape and in the criminal justice system’s process of bringing offenders to justice. Our message to those who are willing, but currently worried about reporting such offences, is that they are encouraged to do so. As my noble friend Lord Hailsham says, Section 41 of the Youth Justice and Criminal Evidence Act 1999 provides that questions about a complainant’s sexual history are not allowed in rape and sexual offences trials. This is except where a strict set of criteria are met, so they are rare. The legislative bar on adducing evidence of a complainant’s sexual history is high and decided by judges on a case-by-case basis. The case that has prompted concerns about how the protective bar is operating has made no change to that.
We are aware of the recent concern about the admissibility of a complainant’s previous sexual history, and wider perceptions about the law. We accept that the concern should be looked at and we intend to deal with it. We have committed to looking at how the law is working in practice and will do so as expeditiously as possible, to understand whether any further action needs to be taken.
The noble Lord also asked whether anything has followed on from the 2006 Home Office study. The evaluation in 2006 made recommendations to ensure that the intention of the legislation would be fulfilled. There was no finding of a need to change the legislation substantially at that point.
With that brief explanation, I hope the noble Lord feels happy to withdraw his amendment.
My Lords, we have carefully considered the concerns that have been raised about the provision and we will then determine how best to look at how it is working in practice before deciding whether any further action needs to be taken. We are going to do it as soon as possible.
My Lords, the noble Lord ought to be cross-examining himself because he has just secured a concession by excellent advocacy, which I failed to do—or I did, but not in such clear terms. In view of that, I will withdraw the amendment.
I disagree with the noble Viscount, Lord Hailsham, on only one point, which was his assertion that I disagreed with him because I said, when speaking to this amendment, that there may be those rare cases where a dispassionate observer might think the exclusion of a relevant account could lead to injustice and unfair convictions. The point here, and the point we seek to have reviewed, is whether, as a result of the Ched Evans case, there might be cases where the restrictive nature of Section 41 has been or may be watered down. We need to look at how it is operating. It is very important that rape gets reported and that the legislation in place is certainly as restrictive as we always thought Section 41 was and as the textbooks say it is. The public concern is that this case seems to have weakened that protection; I am sure the review will take that point on board. I beg leave to withdraw the amendment.
Amendment 219B withdrawn.
Moved by Baroness Cox
219C: After Clause 143, insert the following new Clause—“Registration of religious marriages(1) The celebrant of a religious marriage ceremony must—(a) take all reasonable steps to ensure that the marriage accords with the law relating to marriages in England and Wales; and(b) register the marriage as a legal marriage in accordance with the requirements of the Marriage Act 1949.(2) A person who fails to fulfil the requirements of subsection (1) commits an offence.(3) A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for a term not exceeding 3 years.”
At the outset, I emphasise two points. First, this is a probing amendment, seeking to highlight serious concerns and to explore possible solutions. Secondly, this is in no way—as has been indicated by some—an anti-Muslim or Islamophobic initiative. It is motivated by deep concern for many women suffering in this country in ways which are utterly unacceptable, and it has strong support from leading Muslim women scholars, such as the internationally-renowned Canadian Raheel Raza and many Muslim women in this country.
The amendment provides an obligation on the celebrant of a religious marriage to ensure that it is also legally registered. The maximum penalty for failing to do so would be three years in prison. This may seem a severe provision. However, when I hear from women who have suffered horrendously from the religious marriages which are not legally registered, I believe there is an urgent need for effective measures to remedy the situation. The amendment does not identify any specific faith tradition, yet it does have specific relevance for Muslim women who are adversely affected by the discriminatory rulings of many Sharia councils. As Theresa May explained when speaking as Home Secretary,
“there is evidence of women being ‘divorced’ under Sharia law and left in penury, wives who are forced to return to abusive relationships because Sharia councils say a husband has a right to ‘chastise’, and Sharia councils giving the testimony of a woman only half the weight of the testimony of a man”.
I do not say this happens in every case, but I will highlight two concerns which cause profound distress to many women, some of whom have come to see me to share their pain. The first is the issue of divorce. Under many applications of Sharia law, a husband does not have to undertake the same process as a wife when seeking an Islamic divorce. He merely has to say “I divorce you” three times, without having to give any reasons or justification to any person or authority. The wife, however, must meet various conditions and usually has to pay a fee.
Just two weeks ago, a Muslim lady came to me in tears after the breakdown of her own Islamic marriage. Although a religious ceremony had taken place, the marriage had never been officially registered and was therefore not valid in the eyes of civil law. She was denied access to her children, ostracised by her community and felt so lonely, broken and ashamed that she had attempted to commit suicide. Another lady, who had suffered years of abuse from her husband, showed me a piece of paper she had received through the post. It simply read, “I divorce you”, three times. No consent from her was needed, her opinion was not sought and the imam confirmed the divorce. To use her words, and I will never forget the yearning in her voice, “I felt that plain piece of paper was a mockery of my human rights”.
Many noble Lords will have seen the research conducted by the courageous Muslim woman Habiba Jaan, which describes similar experiences from Muslim women in the West Midlands. She found that the majority of women who had had an Islamic wedding ceremony were unaware that their marriage was not officially recognised by English law. Many were deeply disturbed when they discovered their predicament and said they wished they had known the reality of their situation and its implications. Devout Muslim women who had been divorced often faced stigmatisation in their own communities. Many felt trapped, unable to remarry. Once divorced by their husbands, they may be regarded as second-class or broken glass, able to marry again only into a marriage where there is already one wife. Many do not wish to be a second or third wife.
That brings me to the second issue that the amendment seeks to address: polygamy. We know from countless testimonies that many British Muslim women are living in polygamous households. Habiba Jaan’s report found that nearly all the women in such marriages said their husband does not support them financially. Some said their husbands had as many as four wives. Some said they were not even aware, when they were married, that there was already another wife. Again, such women are at risk of being ignorant of their vulnerability or duped into believing they are married under the law of the land, only to find upon divorce that they have little or no rights to child custody, finance or property.
While the state must always respect religious freedom, it is unacceptable that women can be denied basic rights consistent with the laws, values, principles and policies of our country. I could give so many more tragic examples of the plight of these women, but I hope I have given enough evidence of cause for concern and the need for action to address the problems of these women, and many more whose stories we cannot hear because they live in closed communities where there is great pressure on them not to speak out, as that would be deemed to bring shame on the family and the community.
I reiterate that the amendment does not specify any faith tradition. If women from different faiths experience comparable problems of systematic discrimination, its provisions would also be available for them. I also repeat that this is a probing amendment, seeking to highlight totally unacceptable situations in our country, with women suffering in ways that I always say would make the suffragettes turn in their graves. I hope the amendment will receive a sympathetic response from the Minister and open up discussion for consideration of urgently needed and effective remedies for the problems it seeks to address. I beg to move.
My Lords, I speak in support of the noble Baroness, Lady Cox, and begin by paying tribute to her amazing record of courage and tenacity in confronting some of the most difficult issues in society, including and in particular the rights of women and equality of their rights under the law.
It is important that I repeat what the noble Baroness said concerning context. The amendment does not identify any specific faith tradition, yet it does have relevance for Muslim women who are adversely affected by the discriminatory rulings of sharia councils. The amendment seeks in principle to ensure that all women have access to full rights under the law to confront those many situations referenced so eloquently by the noble Baroness—situations which isolate and separate women and subject them to living in appalling circumstances here in the UK. We have been turning a blind eye to this discrimination for many years, even though the evidence is out there. This has been chiefly because we would be called racist or intolerant of different cultures. In fact, we have been acquiescing in the disrespect, outright abuse and denial of equal access to our rule of law and it is time to put that right.
In addition to the arguments put by the noble Baroness, I have two key points. The first relates to current inquiries into sharia law and the second concerns references to and comparisons with religions other than Islam. On the first, there are currently two inquiries, one of which is by the Home Affairs Select Committee. I have to ask: where has this Committee been on this issue for the last 40-plus years? That we have more than 80 sharia councils across the UK meting out a system of justice that can choose to ignore our rule of law is extraordinary, although I assume that most MPs, if they are active in their constituencies, must have known and know what is going on, or at least have their suspicions, and yet have preferred to promote the rights of women in other parts of the world and in conflict zones. Why, when so much that is wrong is happening here in the UK? In contrast, in Pakistan, family law has been regulated according to its rule of law since 1960 and is not sharia based. I ask my noble friend the Minister: how many sharia councils exist across Europe? I am told none, so can my noble friend confirm that there are no other sharia councils across Europe other than here in the UK? It would be helpful to have that confirmed.
The second inquiry, referred to as a review of sharia councils, launched by the Home Office, while welcome in principle as a step forward, has drawn criticism from various quarters, including Muslim women, mainly on the grounds that its focus is upon the application of sharia law and is seeking examples of “best practice”. In other words, its focus is on how sharia is applied and how that application might be incompatible with our public law, not whether sharia itself is incompatible with our public law—a subtle-sounding but fundamental difference. In essence, by accepting sharia law in principle, we are and have been accepting that one body of people living in the UK may ignore the rule of law where it believes it conflicts with its views and beliefs, particularly with regard to the treatment of women. I am not quite sure why we need this review to work that simple fact out.
In addition, there is genuine concern about the make-up of the review panel. Why, it is asked, are there two Muslim religious advisers and no non-Muslim expert on Islam, nor experts on human rights? It is interesting to note that the chairman of the inquiry, a Muslim academic, Mona Siddiqui, makes the following clear in her book My Way:
“For a lot of women from Islam even just making their voice heard is a big jihad”— meaning struggle—
“It means they’ve gone against so many moral codes”.
This recognition of the difficulty among Muslims of speaking out gives me hope that evidence to the inquiry will not just be accepted at face value. However, I am less encouraged by Ms Siddiqui’s admission that if she had had any daughters, she would have been more conservative with them than she is with her sons. That is a worrying bias.
I hope my noble friend the Minister will not feel constrained in her response to the amendment by deferring to either of the inquiries, particularly given that, while the latter was announced in May of this year, for some extraordinary reason it is not due to complete its deliberations until next year.
My second key point in support of the amendment relates to the often-used erroneous references to other religious practices when seeking to defend the existence of sharia councils, in particular Beth Din. Jewish couples who wish to complement a civil marriage with a religious one, or couples undergoing a civil divorce who wish to complement this with a Jewish law divorce, can ask Beth Din to oversee this. I have been assured by several experts that in neither circumstance can Beth Din override our public law. I understand that the same applies for the Quaker religion and Quaker ceremonies, in that all religious ceremonies must be ratified by our public law. Anything else is subordinate and any arbitral awards remain subject to English law.
“are sometimes at odds with the spirit of British law”.
With respect, I beg to differ: sharia law breaks our law.
Take the existence here of polygamy, to which the noble Baroness, Lady Cox, referred. If my husband, who happens to be a Christian, committed bigamy—never mind polygamy—he would be in prison. What are we doing allowing this absurd situation to continue here in the United Kingdom? How can we have the nerve to try to tell others across the world how to live their lives when we let these illegal, disgraceful practices happen here? We are, in effect, legitimising violence against women.
This important amendment is about equal rights and equal treatment under the law—our rule of law. There is absolutely no point in talking about, or spending yet more taxpayers’ money on, efforts and projects to improve integration, social cohesion or social mobility. It will not happen as long as we stand by and allow these practices that subjugate women’s rights to continue.
My Lords, I welcome this amendment and congratulate my noble friend Lady Cox both on her persistence in raising these issues and on her courage. I have had the privilege of travelling with my noble friend to some out-of-the-way places such as North Korea; but—perhaps more importantly in the context of this debate—before my daughter went up to university, I told her that the person she should travel with, and get to know a little of, if ever she wanted to think about going into public or political life, was my noble friend Lady Cox. She therefore accompanied my noble friend to Nagorno-Karabakh—a war zone—and I hope that she will one day be a chip off my noble friend’s block.
The House might not be aware of it, but my noble friend has arrived back today from Nigeria, which is not such a bad place to start, because we know that my noble friend travels to dangerous places to see things for herself. In Nigeria, look how Boko Haram—words that mean “eradicate western education”—treats young women. Look at what happened in Chibok. Look at the seizure of those girls. Look at the denial of education for young girls, such as those who were seized in Chibok, and then ask yourself some serious questions, as the noble Baroness, Lady Buscombe, has rightly done in her remarks a few moments ago. Look at the nature of sharia law, and ask, “Is that something we would want to have operating as a parallel law system in the United Kingdom?” It is a system, after all, that says that a woman’s evidence in a court of law is worth only half that of a man. That is surely intolerable in our society and we should resist it with every means available to us.
I attended a meeting organised by my noble friend Lady Cox a few weeks ago and became interested in this issue as a result of that meeting, which was held here in your Lordships’ House and was addressed by some formidable Muslim women and others. They highlighted the risks of having parallel systems of law in the same jurisdiction, a situation that put at risk the equality of Muslim women and failed to protect them. The principle of equality before the law should always be a central pillar of our democracy, yet we know from countless testimonies—such as those I heard that evening and others alluded to today by my noble friend—that many Muslim women in Britain are not experiencing the legal rights by which they should be protected. We heard that in the context of things such as polygamy a few moments ago. They are not treated equally; they are not living freely, and they are inhibited from getting the help they really need.
Take, for example, the story of A’aisha—a pseudonym, of course—from the West Midlands. Upon the breakdown of her own Islamic marriage, she discovered that she was not entitled to the same rights afforded to other British divorcees. Like so many others, she had wrongly assumed that, because her religious wedding ceremony had taken place in the UK, it did not need to be accompanied by a civil marriage in order for it to be recognised under English law. As my noble friend Lady Cox has already said, this amendment seeks to protect women such as A’aisha, and to help those who might be duped into believing that they were married under the law of the land, only to find upon divorce that they have few rights in respect of finance or property. It is intolerable that women should be treated in this way.
I recognise, as my noble friend has said, that this is a probing amendment. It may well indeed need tweaking and improving, but I trust it will promote a positive response from the Front Bench. I hope that when the Minister replies, we might at least start to think about how we can bring forward more comprehensive measures to address effectively concerns such as those raised by my noble friend Lady Cox and the noble Baroness, Lady Buscombe, in your Lordships’ House this evening.
My Lords, I did not put my name to this amendment because there were enough people already, but I used to teach family law, including the law of marriage. In this country, it is very easy to get married in a registry office or in a properly registered religious place. You can get married in a hotel if you want to or you can have a civil partnership. There are all sorts of official unions that you can make very easily, but the worst of all possible worlds is to be duped into believing that you are married in a religious ceremony and then find that you are not, because you lose any protection that English law gives you, while at the same time, stereotypically, your husband—if he is really your husband—can abandon you or take another wife.
This is not just a question of running parallel systems of law: it is about the protection of women and the need to preserve transparency and regularity in people’s marital status. All that is necessary is for more mosques to become registered as proper places of marriage, just in the way that synagogues are, and all would be resolved. I see no arguments against this amendment at all. It is overdue.
My Lords, I have listened carefully to the arguments made by the noble Baronesses, Lady Cox and Lady Deech, my noble friend Lady Buscombe—who made an excellent speech—and the noble Lord, Lord Alton. As has been said, the noble Baroness, Lady Cox, has done so much to raise in this House the problem of marriages that are not legally binding and that therefore do not carry the legal rights and responsibilities of a legally binding marriage. I recognise that she has spoken to many women in this situation and has sensitively presented their evidence to your Lordships this evening and on other occasions. There is particular cause for concern if one or both of the parties is unaware of their lack of rights or coerced into a marriage.
There is a strong tradition of religious marriages in England and Wales, with a long-established right that couples are able, in their place of worship, to enter into a marriage that is legally contracted, provided that the requirements of the law are met. Some people, for religious or other reasons, have preferred to enter into a marriage that is not capable of legal recognition. To make it illegal to conduct, or enter into, religious marriages that are not legally contracted is likely to be an overly complex solution and one that restricts personal choice. It is also unclear how many unregistered religious marriages would take place in breach of any change in legislation, since, by their nature, public notice of these marriages would not be given. I am sure that noble Lords appreciate the complexity of legislating in people’s private and religious lives.
We are conscious that there are complex issues behind religious marriages that are not legally valid, including where people use a religious ceremony to give recognition to an additional spouse, and so we do not consider that any one approach to Muslim or other faith communities can work in isolation. Of course, we are also aware of concerns that some women can be put under pressure to use the services of religious councils, including sharia councils, to arrange matters on the break-up of the relationship and that these women are not always treated equally when recommendations are made.
One of the issues that the noble Baroness highlighted was that of child custody, a matter raised by women to whom she has spoken. In fact, it is not the case that women have few or no rights in this matter, although they may well not be aware of their rights. In England and Wales, where there is any dispute between parents about arrangements for their children, either parent may apply to the family court for one or more types of order under the Children Act 1989. Most commonly, this will be a child arrangements order determining who a child is to live with or spend time with, and where and when this is to happen, referred to respectively as custody and access in many other jurisdictions. These proceedings are free-standing. This means that a parent is entitled to make an application to the court at any time, simply by virtue of being the parent of the child concerned and regardless of the status of their relationship with the other parent. There is no distinction for this purpose between legally married parents, unmarried parents, parents in a religious marriage that is not legally binding, parents who are otherwise cohabiting or, indeed, parents who are living apart.
On the issue of polygamy, noble Lords will be aware that polygamous marriages cannot be legally contracted in the UK. Attempting to enter into a polygamous marriage under the law of England and Wales is a criminal offence which carries a maximum sentence of seven years in prison. Nor is it possible for anyone domiciled in the United Kingdom to enter into a polygamous marriage abroad. Where a polygamous marriage is contracted within the law outside the United Kingdom between parties neither of whom is domiciled in the United Kingdom, it will be recognised by the court. The Government continue to support the law preventing polygamous marriages from being entered into in England and Wales.
The Law Commission has also given initial consideration to the issue of religious marriages that are not legally valid. It published its scoping study in December last year setting out the parameters of a potential review of the law concerning how and where people can marry in England and Wales, following consultation with a wide range of religious organisations and other interested parties. The scoping study concluded that this was one of a number of issues that might be ameliorated through a fairer and more coherent framework for marriage. The Law Commission also considered that offences relating to the celebration of marriage should be reviewed. It would not make sense for the Government to introduce a new criminal offence, such as that proposed by this amendment, without evidence of the scale and nature of the problem and without consideration of how the new offence would fit within existing marriage law.
The Government are carefully considering the Law Commission report and will respond in due course. We will also wish to consider the issue of unregistered religious marriages in light of the findings of the independent sharia review, launched in May by the current Prime Minister. The Government share the noble Baroness’s concerns and take them very seriously indeed. These concerns are central to the independent sharia review and involve the equalities, justice and faith and integration agendas across government. I thank the noble Baroness for raising again this important issue and the very real consequences for people’s lives.
My noble friend Lady Buscombe asked how many sharia councils there are across Europe. I do not have a number; I will have to go away, look into it further and write to my noble friend. I trust that the noble Baroness, Lady Cox, will understand the need to wait for the Government’s response to the Law Commission report and the sharia review and, on that basis, will withdraw her amendment.
My Lords, I am very grateful to all noble Lords who have contributed to this debate and those who have supported this amendment and made some very powerful additional arguments. I thank the Minister for the sympathy that is there in her response, but I feel some concern over the apparent lack of a sense of urgency about the need to address the real suffering that is going on at the present time. To wait for the outcomes of the reviews leaves these women in a terrible situation. The gap, the chasm, between the de facto realities and the de jure realities is one into which these women are falling and suffering in ways that should not be allowed in our country today. These issues are urgent: women are suffering on a large scale. I intend to take this debate back to my colleagues, with whom I am sharing these concerns, to consider the most appropriate ways forward. I am very grateful for what has been said tonight; we can learn from it ways to proceed to help the women suffering in these appalling situations. In the meantime, I beg leave to withdraw the amendment.
Amendment 219C withdrawn.
Amendment 219CA not moved.
Clause 144 agreed.
Moved by Lord Kennedy of Southwark
219D: After Clause 144, insert the following new Clause—“Information relating to the online abuse of children(1) Section 11 of the Police Reform and Social Responsibility Act 2011 (information for public etc) is amended as follows.(2) In subsection (2), at end insert “subject to subsection (2A).”(3) After subsection (2) insert—“(2A) “specified information” shall include but not be limited to information that relates to the online abuse of or offences against children—(a) that take place through social media, online channels including messaging services and electronic communications;(b) that are repeated by sharing through social media, online communications including messaging services and electronic communications;(c) that are orchestrated, planned or organised through social media, online channels including messaging services and electronic communications;(d) that are recorded and uploaded online (for personal use or for distribution or sharing with others) howsoever; or(e) for the purpose of which the internet is used as a means of exploitation or contact.””
My Lords, Amendment 219D, in my name and that of my noble friend Lord Rosser, would be an important step in enabling police and crime commissioners to tackle online abuse of children. Only once local police forces begin systematically collecting these data can we know the prevalence of the issue. Only once the prevalence of the abuse is known can commissioners begin to tackle it and to provide adequate resources and appropriate services. Digital technology has fuelled an explosion in these crimes over the last two decades, including children being forced to commit sexual acts online and children being groomed online for the purpose of abuse and exploitation in the real world. The impact of these horrendous crimes can be devastating, and children can be repeatedly revictimised as images of their sexual abuse are viewed online by offenders all over the world.
At a national level, progress on tackling these crimes has been made, such as the Child Abuse Image Database. The centralised expertise of the National Crime Agency also plays a key role in keeping children safe in the most severe cases, but we remain concerned about the ability of police forces to respond adequately to online offences committed against children at a local level. The recent HMIC child protection report found that there is a huge local variation in the response to these offences, including delays of up to 12 months in forensically examining devices. Such delays can have serious implications for the safeguarding of children, including children not being promptly identified and safeguarded and reoffending taking place while a device is still being analysed.
An NSPCC freedom of information request found that police use of cyberflags to monitor online sexual crimes against children is worryingly patchy. A small number of forces said they were not using this or did not know about mandatory cyberflags. It is imperative that this failure to cyberflag offences is addressed. Requiring local forces to collect these data, in addition to the data collection outlined in the Police Reform and Social Responsibility Act 2011, could help address this variation and help to build a local picture of prevalence.
In June, Operation Lattise, Police Scotland’s first national operation to crack down on online child sexual abuse, brought the scale of the problem into sharp focus and demonstrated what can be achieved when there is a focused response. Running for six weeks, the operation resulted in 77 people being arrested and charged as a result of 134 investigations. This led to more than 30 million indecent images of children being recovered.
As police and crime commissioners develop their local plans, the Government must ensure that the police focus their attention on this area, and this amendment would help to do that. I beg to move.
My Lords, no one would suggest that the issues to which the noble Lord has referred are not hugely important, but I shall make a point which may not be wholly popular. There is a limit to what legislation can do when—to me and I think to my noble friend Lord Paddick, with whom I have consulted very briefly—it is a matter of culture and practice.
I believe that police and crime commissioners have made a start on sharing information. I suspect there is a long way to go and that most of them would say that there is a long way to go, but to provide that everything that is good practice—I am probably arguing against an amendment that I have already proposed on a different issue, and more that I will propose—and that culture and practice can always be enshrined in legislation, which requires the issue to go up to the Home Office and then come down again, is something that I would not go so far as to say I am instinctively against, but I feel instinctively needs to be questioned.
My Lords, I am very grateful to the noble Lord, Lord Kennedy, for bringing this forward and drawing attention to what is a very important issue. Exploitation of, and offences against, children, whether online or offline, are appalling and this Government are committed to tackling such criminality very robustly. The internet has opened up a wealth of opportunities for young people, but it has also exposed them to new dangers.
The Government are committed to improving the safety of children online and have a strong track record of working with the internet industry and the charitable sector to achieve it. However, we also recognise that our understanding of the scale and nature of the problem is far from complete, and in many ways we almost feel that we are running to stand still.
Our starting principle is that what is illegal offline is illegal online and criminal offences typically apply in both environments. However, recognising that the picture is less clear in relation to offending online, the annual data requirement on forces includes a requirement to flag offences where the reporting officer believes, on the balance of probability, that the offence was committed, in full or in part, through a computer, computer network or computer-enabled device. This online flag has been mandatory since April 2015, and all 43 forces in England and Wales have provided data since then.
The NCA’s annual strategic assessment of child sexual exploitation and abuse, published in August, found that the visibility of the threat was improving, but that there remained significant intelligence gaps in relation to the overall scale and prevalence of the threat. The NCA works continually to improve our understanding of the threat. I reassure the noble Lord and the noble Baroness that our response to the threat is rightly robust and includes law enforcement agencies taking action against online offenders, developing new capabilities to find and safeguard victims and working with the internet industry to remove illegal images.
For example, all UK police forces and the NCA are now connected to the Child Abuse Image Database—otherwise known as CAID—which reduces the time taken to undertake investigations and identify the victims. A new victim identification suite has been established by the NCA with access to CAID. In 2015-16, UK authorities identified over 450 victims from abuse images, more than double the number of any previous year and, in a recent case, the Child Exploitation and Online Protection command of the NCA was able to use CAID to review one of its largest ever seizures within six weeks. Based on the case size, before CAID this would have taken a minimum of six months to review.
In 2015-16, the NCA received £10 million of additional investment for further specialist teams to tackle online sexual exploitation. This enabled a near doubling of its investigative capacity to tackle child sexual exploitation. An NCA and GCHQ joint operational cell has also been established to target the most technologically sophisticated offenders. In 2015, 2,861 individuals were prosecuted for offences involving indecent images of children—a 27% increase on the previous year.
I hope I have persuaded the noble Lord that we are working to improve our understanding and our response to the threat and that he will withdraw his amendment.
My Lords, to add to what I said before, I think that there is a very important role for the Home Office, working in conjunction with the police and many others, on the consistency of the data, to which this amendment refers but perhaps a bit obliquely. It seems to be an issue that comes up time and time again. Yesterday a report was published by ECPAT and Missing People on young people going missing from care and one of the recommendations was about achieving consistency of data.
It might please the noble Baroness to know that I have become the Minister for data and therefore anything that she can feed into the job that I will be doing will be most appreciated.
My Lords, as the Minister said, understanding the overall scale, complexity and prevalence of the threat is crucial. I am pleased to learn what the department and the police are doing. It is important we understand this.
I accept the point about data that the noble Baroness, Lady Hamwee, made. I also accept her point on legislation. This is such a complex problem. We do not quite know what we have here, as unfortunately new things are developing all the time, so it is worth trying to explore and make sure that our legislation is correct.
However, I am very happy at this stage to withdraw the amendment.
Amendment 219D withdrawn.
Clause 145 agreed.
Moved by Lord Kennedy of Southwark
220: After Clause 145, insert the following new Clause—“Offence of abduction of a vulnerable child aged 16 or 17(1) A person shall be guilty of an offence if, knowingly and without lawful authority or reasonable excuse, he or she—(a) takes a child to whom this section applies away from the responsible person;(b) keeps such a child away from the responsible person; or(c) induces, assists or incites such a child to run away or stay away from the responsible person or from a child’s place of residence.(2) This section applies in relation to a child aged 16 or 17 who is—(a) a child in need within the meaning of section 17 of the Children Act 1989 (provision of services for children in need, their families and others);(b) a child looked after under section 20 of the Children Act 1989 (provision of accommodation for children: general);(c) a child housed alone under Part 7 of the Housing Act 1996 (homelessness: England); or(d) a child who is suffering or is likely to suffer significant harm subject to section 47(1)(b) of the Children Act 1989 (local authority’s duty to investigate).(3) In this section “the responsible person” is—(a) a person with a parental responsibility as defined in the Children Act 1989;(b) a person who for the time being has care of a vulnerable child aged 16 or 17 by virtue of a care order, an emergency protection order, or protection under section 46 of the Children Act 1989 (removal and accommodation of children by police in cases of emergency); or(c) any other person as defined in regulations for the purposes of this section.(4) A person guilty of an offence under this section shall be liable—(a) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum or both; or (b) on conviction on indictment, to imprisonment for a term not exceeding seven years.(5) No prosecution for an offence under this section shall be instituted except by or with the consent of the Director of Public Prosecutions.”
My Lords, young people aged 16 and 17 are still children although they are legally able to consent to sexual activity, get married and undertake a number of other matters and be deemed responsible for their behaviour. Amendment 220, in the name of my noble friend Lord Rosser and the right reverend Prelate the Bishop of Bristol, seeks to put a new clause in the Bill to create a new offence of the abduction of a vulnerable child. Most 16 and 17 year-olds are not well protected, with a tiny minority subject to the protection of the Children Act or in police protection. Children of this age can get themselves into all sorts of problems and can be targeted by adults who seek to exploit their vulnerability. The amendment seeks to create a specific offence.
Amendment 222 would require police forces to collect annually the number of child abduction notices issued, the number breached and the number of sexual risk orders and sexual harm prevention orders issued following such a breach. This information would have to be laid before Parliament in the form of a report. This would provide valuable data to both Parliament and the Government so we can see what is happening and make specific policy and legislative changes with relevant information to hand, if deemed necessary. I beg to move.
My Lords, I can sum up my comments really as, “as above”. The points I made on the previous amendments are relevant, although the report I have just mentioned called Heading Back to Harm is particularly relevant here. There are so many associated issues that I would prefer the focus to be on practice—I will add it to my point about data—including trust in authority. In some situations, lack of trust in authority is a big component in young people who have been rescued going missing again. I do not underestimate the importance of the issues at the heart of this. Can the Minister give the Committee any information about the success of child abduction warning notices, where they apply, now, before we seek an extension?
My Lords, Amendment 220 would create a new offence of abduction of a vulnerable child aged 16 or 17. The offence would be in addition to the existing offence in Section 49 of the Children Act 1989, which already makes it an offence to abduct a child in care, including those aged 16 and 17. The new offence would also be in addition to Section 2 of the Child Abduction Act 1984, which makes it an offence to abduct any child under the age of 16. The new offence would extend only to children aged 16 and 17 who are considered to be vulnerable and therefore in need of additional protection.
The criteria for being considered vulnerable are set out in subsection (2) of the new clause and cover a range of circumstances defined in the Children Act 1989 and Housing Act 1996. These criteria potentially encompass a wide range of individuals and raise concerns that they would have very wide effect. For example, as drafted, the offence would cover all disabled young people of that age. The children it extends to are often in need of services such as housing and education but are not necessarily in need of special protection, as opposed to others of that age.
The Government completely share the objective of the noble Lord and the noble Baroness of ensuring that young people are protected from sexual exploitation and other abuse. That is why, in March last year, we introduced new civil orders to protect the vulnerable and disrupt offending at the earliest opportunity. We believe that providing the right powers to the police is the way forward. Our priority is to prevent offending, so making better use of these orders is a more precisely targeted response than creating a new criminal offence.
As noble Lords will be aware, a similar new clause was tabled in the House of Commons and there have been amendments to previous Bills on this issue. We remain unpersuaded that the proposed new abduction offence is the way forward. Young people aged 16 and 17 are generally deemed capable of living independently of their parents and of exercising their free will, notably on sexual matters. As noble Lords have said, we therefore need to achieve the right balance between additional protection for young people in this age group and recognition of relevant rights and responsibilities. Creating a new offence would raise difficult issues about where we draw the line, and it would not help young people who are older than this age group but are also very vulnerable.
That is why we believe that sexual risk orders provide appropriate powers for the police. I do not have the figures or any information on how the child abduction warning list is working; it might be in my pack. I apologise—I am getting quite tired at this stage of the day. I will write to the noble Baroness. The preventive civil orders are relatively new and we will therefore keep under review whether they fully address the kind of predatory behaviour to which the amendment refers.
Turning to Amendment 222, it is very important that we get the right balance in national reporting of data. This Government have already introduced a new mandatory requirement for all forces to collect data on child sexual abuse and child sexual exploitation offences as part of the police annual data requirement, and from next April we will be expanding that requirement to include non-crime incidents related to CSE as well. This means that for the first time, we will have all child sexual abuse and exploitation-related crimes and incidents recorded by the police. This will allow for all sexual offences against children to be identified; for example, it was previously not possible to identify obscene publication offences that are specifically related to victims aged under 18.
We are working closely with the police to monitor and review the use of the new sexual risk orders, as well as child abduction warning notices, in order to ensure they are effective in protecting children who are at risk of sexual harm. I think that is precisely the noble Baroness’s point. As child abduction warning notices are part of an administrative process, the police do not regularly record the number issued. This means that, in practice, this amendment would place a significant and disproportionate new burden on the police manually to interrogate their systems.
We agree on the need to do all we can to disrupt predatory behaviour before it causes lasting harm to children and young people. The Government remain unpersuaded that the approach proposed in these amendments is the right way forward. In order better to understand the issues raised and to create an evidence base for the use of existing powers—that is the important thing here—we have set up a working group that will monitor the use of sexual risk orders so that we can fully evaluate whether there are gaps in police powers to disrupt at the earliest opportunity. I expect this group to report to Ministers in the autumn of next year, and we will consider its findings very carefully.
I hope the noble Lord will feel content to withdraw the amendment.
My Lords, I thank the Minister for that helpful and detailed response. These are serious matters, and we want to make sure that we have the right legislation and mechanisms to deal with them. I will read her comments tomorrow, but I am very happy to beg leave to withdraw the amendment.
Amendment 220 withdrawn.
Amendments 221 and 222 not moved.
Moved by Baroness Brinton
223: After Clause 145, insert the following new Clause—
“Police observance of the Victims’ Code: enforcement
(1) The Parliamentary Commissioner Act 1967 is amended as follows.
(2) In section 5(1B) omit from “by” to “sections 35”.
(3) After section 5(1B) insert—
“(1BA) Subsection (1C) applies if a written complaint is made to the Commissioner by a member of the public who claims that—
(a) a police officer;
(b) a police service employee other than a police officer; or
(c) another person determined under section (1BC);
has failed to perform a Code duty owed by him to the member of the public.
(1BB) For the purposes of subsection (1BA) a Code duty is a duty imposed by a code of practice issued under section 32 of the Domestic Violence, Crime and Victims Act 2004 (code of practice for victims).
(1BC) The Secretary of State may by regulations made by statutory instrument amend the categories of person identified in subsection (1BA) as the Secretary of State thinks fit.”
(4) In section 5(4A), after “(1A)” insert “or (1BA)”.
(5) In section 6(3), at beginning insert “Except as provided in subsection (3A)”.
(6) After section 6(3) insert—
“(3A) Subsection (3) shall apply in relation to a complaint under section 5(1BA) as if for “a member of the House of Commons” there were substituted “the Commissioner”.”
(7) In section 7(1A), after “5(1A)” insert “or 5(1BA)”.
(8) In section 8(1A), after “5(1A)” insert “or 5(1BA)”.
(9) After section 10(2A) insert—
“(2B) In any case where the Commissioner conducts an investigation pursuant to a complaint under section 5(1BA) of this Act, he shall send a report of the results of the investigation to—
(a) the person to whom the complaint relates,
(b) the principal officer of the department or authority concerned and to any other person who is alleged in the relevant complaint to have taken or authorised the action complained of, and
(c) the Commissioner for Victims and Witnesses appointed under section 48 of the Domestic Violence, Crime and Victims Act 2004 (commissioner for victims and witnesses).”
(10) After section 10(3B) insert—
“(3C) If, after conducting an investigation pursuant to a complaint under section 5(1BA) of this Act, it appears to the Commissioner that—
(a) the person to whom the complaint relates has failed to perform a Code duty owed by him to the person aggrieved, and
(b) the failure has not been, or will not be, remedied, the Commissioner shall lay before each House of Parliament a special report upon the case.
(3D) If the Commissioner lays a special report before each House of Parliament pursuant to subsection (3C) the Commissioner may also send a copy of the report to any person as the Commissioner thinks appropriate.
(3E) For the purposes of subsection (3C) “Code duty” has the meaning given by section 5(1BB) of this Act.”
(11) In section 10(5)(d), for “or (2A)” substitute “, (2A) or (2B)”.
(12) In section 12(1), after paragraph (b) of the definition of “person aggrieved”, insert—
“(c) in relation to a complaint under section 5(1BA) of this Act, means the person to whom the duty referred to in section 5 (1BA) of this Act is or is alleged to be owed;”.”
My Lords, 11 years ago, my life, and the lives of a number of my colleagues, friends and supporters, was turned upside down when we became the target of somebody who began by politically harassing us and then moved into criminal damage and on to stalking. It took more than three years before the case came to a satisfactory conclusion, when he pleaded guilty to five offences and for asked for 68 other crimes to be taken into consideration. Eight and a half years on from his court hearing, I still find it difficult to talk about it, not least because when I arrived in court I was placed, along with the only other victim who had decided to come, within an arm’s length of the dock. It was the first time that I had seen the man since the police had charged him, although I had believed for some time before that it was him, and clearly I was right.
That unfortunate experience in my life pales into insignificance compared with the experience of many victims of domestic violence, stalking and coercive control, but it was my experience of harassment and stalking that made me join the parliamentary inquiry into stalking in 2011 and led to the amendments to the Protection of Freedoms Bill in 2012. In the House of Lords, when we were considering the Commons amendments, I cited the then Home Secretary, who had said that the amendments put forward by the Government,
“will widen the … offence to incorporate behaviour that causes the victim serious alarm or distress that has a substantial effect on his or her day-to-day life”.
When she addressed the Commons, she said that the legislation would be kept,
“under review. The last thing we want to do is to find that the legislation is being misinterpreted”
She set out examples which were,
“to send a message to people that that is all they are ”.—[
At the time of the debate in your Lordships’ House, I and other noble Lords asked for strong evidence that the Home Office and the Ministry for Justice would ensure that the softer elements that are essential to provide victim support were put in place, such as training throughout the criminal justice system to recognise the needs of victims, not just for the police but in court, where assistants might place people, as happened in my case, in some of the situations that cause extreme difficulties for victims. I know that noble Lords who are lawyers are not surprised by delays, but there are many things that happen day-to-day in the criminal justice system that cause victims real distress. There seems often not be very much joining up of agencies, let alone police forces. The requests for training that we made in 2012 seem not to have been applied across the board. There is some good but patchy training—and it is not consistent.
The result of that is that many victims of these serious and intrusive crimes feel that their victimisation continues as the case progresses through the criminal justice system. That is despite progress in the victim personal statements scheme that arrived in 2001, witness care units, the Code of Practice for Victims of Crime, the victims’ fund, Victim Support and the restorative justice service. A number of sources, including the organisation Victim’s Voice Survey, made it clear that all these were having little positive impact on victims, who seem to be routinely failed and face revictimisation by the whole of the criminal justice system.
The hour is late and I will not go into much evidence, but there is plenty of it from these surveys and the number of cases highlighted to show the gap between these policies and the day-to-day administration of practice. Currently, some victims’ rights, though not all, are covered by entitlements in the victims’ code, which was designed to make the system more responsive and easier to navigate. The problem is that this is not legally enforceable. It is a code, not statutory guidance. It places discretionary accountability on the agencies. Victim feedback strongly suggests that agencies often fail to apply the code. Agencies which should be guided by it are aware that a failure to provide the service does not make a service provider liable in any legal proceedings.
The complaints and right to appeal process within the code is lengthy and very difficult to navigate. There is clear evidence the victims are deterred from engaging in the complaints procedures because of their complexity. This misses any opportunity to identify ongoing issues that victims are facing and to improve services.
The original victims’ code was clearly a well-intentioned document, but there was widespread agreement, including from the current Government, that it was not delivering all that had been hoped. The new code is similar to the original but makes it all the more difficult to see where improvement to services for victims might come from. There seems to be widespread failure to adhere to the guidance that the code offers, with lack of information and support for victims continuing to be a critical concern.
I should like to give an illustration. During the passage of the Protection of Freedoms Bill I spoke about Claire Waxman, who had at that point been the victim of stalking for considerably more than one decade. She reported that when, after 18 months of harassment, she first went to her local police force, the officer she met laughed at her and told her that she was making a fuss and should be flattered by the attention. She described how, in incident after incident, paperwork was missing for court and the CPS was ill-equipped to cross-examine the stalker in court because it had no idea what the case was about, as the prosecutor had received the files only a few minutes prior to the trial.
On one occasion she received a knock on the door at 10 pm from a uniformed police officer. He informed her that she was due in court the next day as a witness in the ongoing case. The court date had been moved and they realised very late at night that she had not been notified of this change. She was so shocked to be told that she was due in court the following morning that she had no time to prepare herself, or even to inform her work. However, she said that it showed her how much of an afterthought victims really are in this process.
That is a brief illustration of the evidence provided to a group of Peers at a seminar we held in October. A victims’ rights Bill introduced in the House of Commons last October by Sir Keir Starmer has all-party support. Many of the amendments that we are laying before your Lordships now are incorporated into the Private Member’s Bill. These amendments would create a balanced and fair justice system for all who participate, and should restore public confidence in the criminal justice system.
There is one other key point that I want to make. Many of the problems that victims face are due to inefficiencies in the system. If these alone were remedied, there would be a considerable saving to the costs of running the court system. I speak today for victims, but there is a much more important element here that would save the public purse an enormous sum.
We outline a statutory framework for victims’ rights. In summary, we believe that the right to information at every stage of the justice process should be natural, as should the right not to be discriminated against or prejudiced from accessing justice. There should be the natural right not to be subjected to any unnecessary delay and to challenge decisions that impact directly on the victim’s personal safety. There should be a revision of offences that can be appealed on the grounds of leniency. There is a separate amendment later on the non-disclosure of victims’ names to perpetrators in cases of serious sexual offences, where the perpetrator has targeted a stranger. There should be the right to attend and make representations to any pre-court hearing to determine the nature of the court proceedings.
I end on two incidents that were addressed at the hearing, which also set the context of why this is not just about inefficiencies in court. Alleged suspects have many rights once they are brought into a police station. They are entitled to meals, blankets, breaks, tea, coffee, doctors and, where necessary, alcohol and drug workers. All the victims at the seminar that day, when asked whether they had even an offer of tea or coffee when making their formal statements, reported that they had not.
Another incident was more about the police force involved absolutely abrogating its responsibility. A woman who was initially slapped by her husband, who had a history of domestic violence, was thrown on to the bed. He then violently raped her. Their eight year-old son came to the door and he assaulted him to get him out of the way. When the local police came to investigate, they decided that it had to be referred to three different branches of the police: to the CID for the initial slap; to the Sapphire unit for the rape; and to safeguarding for the child’s issue. The victim in this case—the mother of the child—had to make three separate statements and be kept updated with three separate sets of proceedings, and each time relive the experience.
While the victims’ code as it stands has the best of intentions, it is not good enough and we need to strengthen it. I beg to move.
I will be very brief, not only because of the lateness of the hour but because the noble Baroness, Lady Brinton, has already been through the case for these amendments.
The noble Baroness said that a victims’ rights Bill was introduced in the House of Commons last year by the then shadow Home Office Minister, Sir Keir Starmer, and it had all-party support. Currently, as we know, victims’ rights are for the most part covered by entitlements in the victims’ code and affected by various other initiatives in recent years. But that code is not legally enforceable and feedback from victims suggests, as has already been said, that agencies often fail to apply the code, perhaps because they are aware that a failure to provide the service does not make a service provider liable to any legal proceedings. Lack of information and support to victims are major areas of concern, with victims prioritising the right to information, protection, treatment and support as the highest priorities.
The purpose of these amendments is to place victims’ rights in a statutory framework, and the noble Baroness, Lady Brinton, has already referred to a number of those rights that are covered. The amendments also place a duty on the Secretary of State to publish and implement a strategy to provide training for all relevant professionals and agencies on the impact of crime on victims.
In essence, these amendments lay down what support should be offered to victims, how that support is managed, what training is necessary to put this into place and how complaints can be pursued. I, too, hope that the Government will feel able to give a favourable response.
My Lords, we on these Benches support our noble friend Lady Brinton. I do not want to detain the Committee so will make just a couple of comments. When discussing matters such as trafficking and slavery, I often hear that these issues are where domestic violence was 20 years ago. It is very concerning to hear about the treatment of women—and men—who have suffered domestic violence in the way that my noble friend has described. That is not progress over the past 20 years.
There is another argument for my noble friend’s various amendments, which I do not think she mentioned; that is, obtaining the best evidence from victims who are also witnesses. These are very sensitive issues and one hears of very good practice by some police forces and some members of the judiciary. It is a question of spreading that good practice. There is an awful lot raised in these amendments, including the very delicate issue of ticketing for the judiciary dealing with certain cases. This is not the moment to go into that but the implications of the amendments need to be taken on board over a very wide area of practice. The Committee should be grateful to my noble friend and the noble Lord for ensuring that they are raised. It is a pity that, coming to the end of Committee, we are not able to do them the justice that we would all like to do them.
My Lords, I thank the noble Baroness, Lady Brinton, and other noble Lords who have spoken, for raising the important issue of victims’ rights.
It is crucial that the needs of victims of crime are given proper consideration at every stage of the criminal justice process. We published a revised Code of Practice for Victims of Crime, which came into force in November 2015. As a result, victims of all criminal offences, not just victims of more serious offences, are entitled to support under the code. The code provides victims with a range of entitlements, including information about their case, interpretation and translation, and for them to be treated in a respectful and professional manner without discrimination of any kind. Furthermore, the code requires police and other service providers to have a complaints procedure. If victims are dissatisfied with the outcome, they are able to refer their complaints to the Parliamentary and Health Service Ombudsman via their Member of Parliament.
It is essential that victims receive the best possible support to help them cope with and recover from what they have been through. We have a raft of arrangements in place which ensure that victims have access to a wide range of emotional, practical and specialist support determined by and tailored to their needs; wherever possible, this support is accessible locally. We are committed to ensuring that victims get the support they need and have protected the overall level of funding for victims across the spending review period, with over £95 million being provided in 2016-17 to fund crucial support services, including £7 million for the provision of support for victims of child sexual abuse, in recognition of increasing demand. Of the £95 million, we allocated over £67 million in grant funding to police and crime commissioners, who are using that funding to commission local services. The Justice Secretary has recently agreed to extend grant funding to all the nationally funded organisations for 2017-18 while we consider the current mixed model of commissioning national and local services.
We recognise the importance of training for professionals who work with victims. Organisations are responsible for ensuring the highest-quality training for their staff to ensure that victims receive the best possible service and support. However, we also recognise that more can be done. That is why we are working to place victims and witnesses at the heart of a justice system that works for everyone. We recently announced the national rollout of pre-trial cross-examination in 2017 to improve the support available for vulnerable witnesses. We are also investing close to £1 billion to reform and digitise our courts and tribunals. This will improve the experience for all court and tribunal users, including vulnerable victims and witnesses. Furthermore, we have committed to introduce further measures to strengthen the rights of victims of crime. It is important that we take the time to get this right, and we will announce our plans in due course.
Finally, the proposal for homicide reviews is also unnecessary. If the family of a victim has concerns about a closed homicide case, this can be looked at again under the Crown Prosecution Service’s recent guidance, Reviewing Previously Finalised Cases, to determine whether or not a review should be conducted.
Having had this opportunity to debate these important issues, and in the knowledge that the Government will be bringing forward proposals to strengthen the rights of victims, I ask the noble Baroness to withdraw her amendment.
I thank the Minister for her reply, and the noble Lord, Lord Rosser, and my noble friend Lady Hamwee for their contributions. I am pleased that the Government will be looking at this but the difficulty is that much of what we have heard from the Minister does not address the soft issues that face the day-to-day running of any case in the criminal justice system, which are causing many of the problems. I wonder if the Minister would be prepared to meet over the next few weeks to talk through some of these issues. I see she is nodding. I am very grateful. With that, I beg leave to withdraw the amendment.
Amendment 223 withdrawn.
Amendments 224 to 228 not moved.
My Lords, Amendments 228A and 228B would introduce ethnic monitoring into the youth criminal justice system for Gypsy, Traveller and Roma children and young people.
The case for the amendments is simple. Young Gypsies and Travellers are widely acknowledged as being hugely overrepresented across the entire youth justice system. They have some of the very worst experiences in custody and considerably greater care needs. Yet the youth justice system still uses ethnic monitoring systems based on the 2001 census and therefore Gypsies and Travellers do not appear in the official data. I will touch briefly on why ethnic monitoring is important, particularly in education and in addressing the specific needs of Gypsies and Travellers.
The Government have rightly placed great emphasis on the need to improve the education provided for prisoners, particularly those in the youth justice system. Yet the lack of official data means that the educational needs of young Gypsies and Travellers are ignored without even being addressed. The lack of targeted education interventions is particularly acute in the youth criminal justice system. The Irish Chaplaincy’s research, Voices Unheard, found that 52% of young Irish Travellers required basic educational intervention. In fact, despite investigations from the Prisons and Probation Ombudsman and reports such as Children in Custody consistently revealing that Gypsies and Travellers have lower levels of literacy and are far less likely to understand written English, few to no steps have been taken to address this inequality.
Unfortunately, Gypsies and Travellers continue to experience marginalisation and discrimination in everyday life. Naturally, this negative experience means that they are more likely to distrust authority and far less likely to request help when they need it in prison. Low literacy and being fearful of requesting help directly contribute to Gypsies and Travellers having worse experiences in custody. They find it harder, primarily due to literacy issues, to make applications, to get a prison job or to be involved in purposeful activity while serving their sentences. This is not because of idleness or out of personal choice but because they cannot navigate the system.
There is a real willingness among Gypsies and Travellers to seek education in prison. A Children in Custody report found that 89% of Gypsy, Traveller and Roma young people thought that education and secure training centres would help them when they left. That is compared to just 66% of young people. That desire to learn can be confirmed with organisations such as the Traveller Movement and the Irish Chaplaincy, which regularly work with Gypsy and Traveller children.
However, these children are being failed because they are not seen as a priority. Without official data, the various facilities do not feel any pressure to address the unjustifiable differences in the outcomes for Gypsy and Traveller young people in prison compared with other young people because the absence of data means that these differences in outcomes cannot be fully revealed.
The latest Children in Custody report also revealed that Gypsies, Travellers and Roma in both young offender institutions and secure training centres were significantly more likely to consider themselves to have a disability. In addition, Gypsy, Traveller and Roma children in secure training centres were far more likely to report having unmet health needs. The health and education needs of Gypsy and Traveller children are simply not being addressed in the current system.
Official, reliable and consistent data are integral to ensuring that these children’s needs are being met. There is nothing like having to answer specific questions on a particular group to focus the minds of those delivering a service. The inclusion of Gypsies and Travellers in ethnicity monitoring in youth justice is integral to highlighting and addressing differences in outcomes and, most importantly, in ensuring that these children are provided with a better chance of successful resettlement. I beg to move.
My Lords, I add my support to the powerful arguments that have been put before the Committee today by the noble Baroness, Lady Brinton, in her excellent speech. Her amendment would include Gypsy and Irish Travellers in the ethnic monitoring systems used in youth justice. The argument for ethnic inclusion was put best by the then Commission for Racial Equality, which likened having an equality policy without ethnic monitoring to,
“aiming for good financial management without keeping financial records”.
Evidence has long suggested that Gypsies and Travellers suffer worse health outcomes, and are at more risk of suicide, than other ethnic groups. Research suggests that they are three times more likely to suffer from anxiety and over twice as likely to be depressed. This is consistent with findings by HM Inspectorate of Prisons, which has found similarly high levels of mental health issues experienced by Travellers and Gypsies in prison, with them also being twice as likely to experience mental health problems compared to other prisoners. As is common with most ethnic minorities, Gypsies and Travellers find it difficult to open up to people outside their community and are therefore far less likely to report issues to prison staff. These findings underline why ethnic monitoring is urgently needed in the youth justice system, as the noble Baroness has explained.
The Gypsy and Traveller groups that have developed in adult prisons as a consequence of ethnic monitoring have made an enormous difference to Gypsies’ and Travellers’ experiences inside those prisons. These act as a safe space where they can talk about how they are coping in prison and, more importantly, receive support from their own community. A Traveller forum in HM Prison Chelmsford, supported by the Brentwood Ursulines, is testament to this. The forum meetings are now attended by around 40 Gypsies and Travellers and acts a platform for Gypsies and Travellers to speak openly about the challenges that they face.
The forum has also helped to improve the literacy of Gypsies and Travellers. In order to secure a prison job, you are required to pass level 2 literacy, a threshold that many Gypsies and Travellers in prison are, sadly, unable to meet. As is often the case with people who struggle with reading and writing, they fear stigmatisation and ridicule if they admit they cannot read and write. This prevents many Gypsies and Travellers from engaging in education programmes. It is the ultimate Catch-22, a finding that is confirmed by the Irish Chaplaincy’s Traveller Equality Project.
Happily, however, I can report that as a consequence of the forum’s work many of those Gypsies and Travellers have started to take part in the Shannon Trust’s Turning Pages project, which assists prisoners who wish to learn how to read. This has had some significant outcomes, including the possibility of securing jobs. Equally importantly, the forum has also greatly improved the relations between the Gypsy and Traveller prisoners and the prison staff who attend the meetings, and address issues that have been raised. Without the introduction of ethnic monitoring, it is hard to imagine how some of those things would have been achieved.
Such groups are even more important in the youth justice system, where the young people and children are more vulnerable and at greater risk. I know that the right honourable Amber Rudd, the Home Secretary, is considering a sign-off of the 18+1 annual data requirements, requiring police forces to include the categories of “Gypsy or Irish Traveller” and indeed “Arab” in the collection of data. The current arrangements are discretionary and therefore haphazard and random, with some constabularies collecting data and others not.
The National Police Chiefs Council’s lead for Gypsies, Roma and Travellers, Deputy Chief Constable Janette McCormick from Cheshire, where such data collection is done—I know the noble Baroness, Lady Williams of Trafford, will be aware of this work—is strongly supportive of the change. In fact, Cheshire Constabulary has used the 18+1 ethnicity classification system since 2004. In support of the change, DCC McCormick has said:
“I believe that ethnic monitoring by all public services works best when it builds on the Census data, which remains the bedrock of all statistical information. Not recording Gypsy and Traveller ethnicity makes it difficult to ensure that agencies are providing needed services in a fair way and that they are fulfilling their obligations under the Public Sector Equality Duty”.
In addition, the Gypsy Roma Traveller Police Association, a support network for police personnel who are from such backgrounds, is fully supportive of the proposal from the noble Baroness, Lady Brinton, and the College of Policing has recently established a Valuing Difference and Inclusion programme. Adopting 18+1 would be in tune with that strategy and would set standards for forces about being inclusive to all points of difference both within and beyond the protected characteristics under the Equality Act 2010, of which ethnicity is one. By recording ethnicity along with all the other data collected, the police could then use that information to see where and why inequalities were occurring. Even more importantly, forces could then use that knowledge to remove any unfairness or disadvantage.
When I looked at the constabularies that were collecting this information, I was surprised to find that the Metropolitan Police was not among them. I wrote to Sir Bernard Hogan-Howe, the Commissioner of Police of the Metropolis, and subsequently had an excellent meeting with him. I was delighted to receive a letter back from him saying:
“I note your concerns regarding the MPS system of collecting ethnicity data, and your request that Romani Gypsies and Irish Travellers are included in the collection of data. I agree to the change in principle as I believe key community partners would welcome the change and it would be a positive signal from the Metropolitan Police to other forces. I have asked for an implementation plan to be devised looking into the practicalities of implementing this as soon as possible”.
We should welcome that. It is a very positive signal that here in the capital such data collection will be done in future. I hope that other police forces follow suit and that when the Minister comes to reply to this debate, she will give a fair wind to this excellent amendment from the noble Baroness, Lady Brinton.
My Lords, I add my support to the amendment from the noble Baroness, Lady Brinton, to which my noble friend Lord Rosser has added his name. She has hit eloquently on an important omission in our capacity to deal with young offenders.
When I and members of the Gypsy and Traveller communities first lobbied for an extension of the census categories to include Gypsies and Travellers, before the increase in our Roma population, we did so because important areas of discrimination, resulting in significantly poorer life chances, were undocumented and a minority ethnic population of very long standing was simply unrecognised in many sets of official statistics. When we eventually achieved this in 2011 we thought that at last the public services would begin to understand more about the significantly worse outcomes in health, education, employment, housing and experience of the criminal justice system endured by many from these communities.
It remains disappointing that the Youth Justice Board has not taken advantage of the opportunity of the 2011 census categories to map more accurately what happens to young Gypsy, Traveller and Roma people. I am grateful for useful meetings with the noble Lord, Lord McNally, as chair of the Youth Justice Board, and his officials on the subject. His acknowledgment that the current system is not robust was welcome and I appreciate his commitment to improvement in data gathering. However, the fact remains that records still do not consistently capture more of the reality of who the young people who go through our criminal justice system are.
There are, of course, some external obstacles. Many young people from the Gypsy and Traveller communities are fearful of admitting their ethnicity because of the bullying and exclusion which has been meted out to them in the past. But trust can be developed if the information is shown to be helpful.
As the noble Baroness, Lady Brinton, said, it would be very important to be able to correlate the probable overrepresentation of these young people with literacy levels and mental health status—also referred to by the noble Lord, Lord Alton. Their experience of education and accommodation has often been deeply unsatisfactory, but we cannot begin to make these links and to do something about it until we have the data tools.
As has been said, we know that both HM Inspectorate of Prisons and the lead chief constable for Gypsy, Traveller and Roma issues have called for the change the amendment would provide. The excellent Irish Chaplaincy's Traveller Equality Project has really positive evidence of good practice to justify the use of up-to-date information in the adult prison estate.
I hope, therefore, that the Minister will see the point too and accept this amendment.
My Lords, I will speak briefly in support of Amendments 228A and 228B in the name of my noble friend Lady Brinton. The arguments for ethnic monitoring are well versed and I will touch upon them briefly. As has already been said, without ethnic monitoring it is very difficult for public services to identify, and therefore address, any inequalities which vulnerable groups may be experiencing. As the noble Lord, Lord Alton, has said, whenever there have been research or studies into the experiences of Gypsies, Travellers and Roma in custodial institutions—in either the youth or adult estates—these communities are almost always shown to have worse experiences and greater care needs.
Voices Unheard: A Study of Irish Travellers in Prison found that over 20% of Traveller young offenders were identified as having mental health issues. This is an alarming number and needs a co-ordinated effort in order to be addressed. However, as we know, without ethnic monitoring and consistent data it is unlikely that such an intervention would take place. As the report’s author, Dr Conn Mac Gabhann—I hope I have pronounced that correctly—said in an interview on this issue recently:
“While ethnic monitoring will not solve all the problems Gypsy and Traveller children face in the youth criminal justice system, it will be an important step in helping us to highlight the problems and issues they face and ensure these issues become a target to be tackled”.
I have little more to add to the very powerful speeches of my noble friend Lady Brinton, the noble Lord, Lord Alton, and the noble Baroness, Lady Whitaker. They have covered the ground extremely well. I hope the Government can support these amendments and ensure that the issues affecting young Gypsies and Travellers in the youth justice system can finally be addressed.
My Lords, I have sympathy for the noble Baroness’s amendment regarding collection of ethnic minority data. I would like to pick up on the point about education. So long as we are not properly educating the Traveller community it will continue to be exceptionally difficult for it to engage exclusively in legitimate economic activity.
My Lords, I will add a few brief comments to what has been said, without seeking to repeat the arguments which have already been made. The noble Lord, Lord Alton, may have been quoting from a letter, dated
“It is my firm belief that the lack of robust and reliable data on the Gypsy and Traveller population is a major barrier to developing a coherent understanding of these communities and their social, economic, education and welfare needs. Updating the ethnicity monitoring systems in youth justice to include Gypsies and Irish Travellers would be an integral step in helping us to address the disproportionate number of Gypsy, Roma and Traveller children in both Secure Training Centres and Youth Offender Institutions”.
She concludes her letter to Elizabeth Truss by saying that:
“I hope you and your Department are able to support the amendments”.
I hope that when the Minister replies she may be able to tell us what Elizabeth Truss’s response is to that request from the NPCC lead for Gypsy, Roma and Traveller issues to support the amendments that we are discussing this evening.
I have also got a copy of a letter which the chairman of the Youth Justice Board for England and Wales sent very recently to Kate Green MP, in response to a letter that she had written to him about the collection of data on the number of Gypsy and Traveller young people in the justice system. He says in his reply that:
“The YJB currently records the ethnicity of young people in the youth justice system using the 2001 census categories, which does not include Gypsy, Traveller or Romany (GTR) as a category. Consideration has been given to changing information systems to capture the number of GTR young people but it is too costly at present to make the required changes to existing local and central case management systems to make this possible. This position will be reviewed as new IT systems are developed and implemented”.
I am not sure that that statement holds out a great deal of hope. Perhaps in her reply the Minister could say something about what the costs would be of making the required changes to the existing local and central case management systems to achieve the objective being sought, so that we can all form a view of whether that is too costly or not.
I also ask the Government to respond to one other thing. Since the position will, apparently, be reviewed as new IT systems are developed and implemented, are we talking about new systems that will be developed and implemented within the next six months, the next six years or the next 60 years? Once again, the letter does not make that clear. It is interesting that the letter from the chairman of the Youth Justice Board for England and Wales then goes on to assert that,
“it is not the case that no data exists in this area”.
He then refers to the fact that:
That is an interesting observation since, as I understand it, certainly on at least one previous occasion the relevant Minister has expressed the view that, as not all young people return a completed survey, they cannot determine the actual number of GRT young people held in YOIs and STCs, or even know if the sample is representative. That would suggest that on previous occasions the Government have not regarded the data contained in Children in Custody—in those annual reports—as necessarily being particularly reliable or particularly helpful.
Like others, I very much hope that the Government will be able to give a helpful response to this amendment. If the argument is going to be all about the cost of doing it, we will really need to ask the Government for a full breakdown of those costs and when they expect to rectify the situation so that we can all form an assessment of the validity or otherwise of that particular argument.
I am grateful to the noble Baroness, Lady Brinton, for raising the issue, and all noble Lords who have taken part.
The Government acknowledge that it is of great importance that ethnicity classifications of children and young people in the youth justice system are robust and accurate. Noble Lords will recall that the Prime Minister announced in August an audit of public services to reveal racial disparities and to help to end the injustices that many people experience. At present, youth custodial establishments and youth justice agencies, such as youth offending teams and the Youth Justice Board, are not required by legislation to use a particular system of ethnic monitoring; these amendments would change that.
In 2011, the National Offender Management Service adopted the 18+1 system on the centralised operational database used in prisons and young offender institutions for the management of offenders, following the change of classifications for ethnicity within the national census. However, it is the case that the new classification is not consistently used by secure children’s homes, secure training centres and youth offending teams. In principle, we agree with the aim of using the 18+1 classification, and the Government are ready to examine whether and how this could be done consistently across youth justice agencies and custodial establishments. I should point out, however, that such a change can be delivered through administrative means rather than through legislation. We feel that such an approach is preferable, given that to enshrine the 18+1 code in legislation would inhibit future flexibility in the event that the Office for National Statistics were to decide to change the 18+1 code system and introduce a new system of ethnicity classifications.
Although we support working towards consistency in terms of the data that we are recording, I hope that the noble Baroness would recognise that the universal adoption of the 18+1 code would require youth justice agencies to make a significant number of technical changes to a range of data systems, as the noble Lord, Lord Rosser, mentioned. This is because many existing IT and data collection systems are designed only to accommodate the 16+1 classification. For this reason, we believe the impact on agencies and custodial establishments must be explored and analysed and appropriate approaches identified.
I do not have costings at the moment, and will have to get back to the noble Lord on that point—although, interestingly enough, inspiration has appeared over my left shoulder. However, I am not sure that it is going to be that helpful. I have no information on the cost of the necessary IT changes. Clearly, they would need to be identified and factored into the work that would need to be done as youth justice agencies moved to the 18+1 system. I shall make inquiries as to whether further information is available and write to noble Lords. I am afraid that I do not have much more to add.
In conclusion, the noble Baroness has highlighted a valid issue. We support the broad aim of these amendments and will consider further the practical implications of embedding the 18+1 code system throughout the youth justice system. I hope that, on this basis, the noble Baroness would be content to withdraw her amendment.
I thank all those who have contributed to this debate on this very important issue, including the noble Lord, Lord Alton, the noble Baroness, Lady Whitaker, the noble Baroness, Lady Bakewell of Hardington Mandeville, the noble Earl, Lord Attlee, and the noble Lord, Lord Rosser—and particularly the noble Lord, Lord Rosser, for highlighting in detail the issues that I felt that I did not have time to go into on what is happening with the IT system. I put it on record, too, that the noble Lord, Lord Ouseley, the noble Baroness, Lady Young of Old Scone, and the noble Lord, Lord Judd, wanted to speak in this debate but, because the date has moved on, were unable to be in their places.
I thank the Minister for her comments, although I was slightly startled by her opening statement about this new system of ethnicity. It is new only to the youth justice system. It is in use absolutely everywhere else. I am not intending to suggest that the Minister was saying anything else, but that is the whole problem—that there is a particular section of the criminal justice system that is not using the same databases as everybody else. We know from the example that the Minister quoted of the W3 Gypsy or Traveller code being added to P-NOMIS that the Irish chaplaincy has reported that many prisons are holding Traveller groups, appointing Traveller reps and holding Traveller history months—and, what is more, there is an increase in uptake of education by more than 10% among Traveller prisoners. That is a sign of real success. Surely young Gypsy and Traveller children who are in the system early on deserve that support the moment they come into the system. I hope that we can keep the doors open to discuss the matter as a matter of urgency. I beg leave to withdraw the amendment.
Amendment 228A withdrawn.
Amendment 228B not moved.
Moved by Lord Wigley
228C: After Clause 145, insert the following new Clause—“Victims and witnesses of serious crime: disclosure(1) A police force or police officer may not disclose the identity of a victim or witness of a serious sexual or violent offence to the person accused of the offence, if it is reasonable to assume that such a disclosure would put the victim or witness at risk of further harm. (2) In determining whether disclosure is reasonable for the purposes of subsection (1), a police force or police officer must take into account the—(a) previous convictions,(b) mental health, and(c) access to new technology or social media,of the person accused of the offence.(3) This section applies whether or not the person accused of the offence has been charged with the offence.”
My Lords, Amendment 228C stands in my name and those of the noble Lord, Lord Ponsonby, and the noble Baroness, Lady Howe of Idlicote. I apologise, as I have before, that I have had to dip in and out of the debates on this Bill, for reasons I think noble Lords will understand.
This amendment concerns the victims and witnesses of serious crime and its purpose is to prevent the disclosure of a victim’s identity to the accused when there has been a serious sexual assault and the accused is a stranger. The need for this amendment is best illustrated if I briefly recall a disturbing incident. About 30 months ago, a person, whom I shall call “M”, was followed by a stranger off a bus and subsequently attacked. There was an attempted rape and threats to kill her if she did not stop screaming. Fortunately, two off-duty police officers heard the screams and arrested the attacker. The noble Baroness, Lady Brinton, will recall that M gave harrowing evidence to a seminar that she chaired last month. M told peers that, later at the police station, she was horrified to learn that her full name had been given to the assailant. He did plead guilty and was handed down a seven-year sentence but, understandably, M is now terrified that, on release, her assailant will find her and attack again. She contacted Voice4Victims, who worked out that he will be released on parole in July next year. M has changed her name, moved home and deleted her name from the electoral register, but she still fears that, by using the internet and social media, he will trace her.
She is not alone: other women have reported similar experiences. One woman reported dropping a case of sexual assault after learning that the attacker had been given her name. Another reported, “I am still scared every day that the guy who did this will be released and he has all my details”. That was also a case of attempted rape. She said that it would have been much safer for her if she just had not reported the attack. M has contacted the police and the Met have responded, saying:
“There is no specific policy or legislation which covers the issue of providing the name of a victim of rape to the suspect. Instead it is an operational decision taken by the officer in the case on a case-by-case basis”.
This came from the office of Commander Christine Jones. M has written to the police heads in all 32 London boroughs. What emerged is that there is no uniform policy at police stations. Most confirmed that, yes, they did disclose. Some said that they did not and that it was a matter for the court. Most were unsure. This situation is not satisfactory and is putting vulnerable female victims at risk. It is not a matter of the right of the accused knowing the accuser. As they are strangers, the use of initials or a single letter would be enough. At court, special measures can and are applied for, but by then it may be too late.
The amendment makes it clear beyond doubt that disclosure puts victims at risk—anonymity does not. The clause, which was drafted for me by Voice4Victims, stipulates that disclosure is prevented if it is reasonable to assume that disclosure would put the victim at further risk of harm. In determining the concept of “reasonable”, the police would take into account previous convictions, mental health issues and, indeed, access to IT. This should mean that in practice names are never given to perpetrators.
I hope that the Minister will recognise the serious circumstances which have led me to table this amendment. I hope that the Government will accept it today, but if for any reason there are technical difficulties with it, I would ask that they bring their own amendment at a later stage, so that this serious matter is properly addressed and victims are not caused additional and unnecessary distress, and potentially serious consequences, because of the current uncertainty as to the requirements of the law. I beg to move.
My Lords, I rise to support the noble Lord, Lord Wigley. I was sent the same briefing as him, so he has largely said the same as I was going to say. I just remind the Committee that I sit as a magistrate in central London and I deal, not with issues of this seriousness, but certainly with issues of harassment and others of that nature. There is one other factor that I want to add, on what I understand the legal position to be, which I took from the CPS website. If the police want to apply for anonymity for a victim and believe that they have proper grounds to do that, they can apply to a magistrates’ court but, indeed, I believe police officers can give that anonymity if they believe that there is a proper case for it. They have to reapply for anonymity when a trial happens, either at the magistrates’ court or at the Crown Court.
As the noble Lord, Lord Wigley, said so clearly, many of the police who were contacted about this issue simply did not know what the law was and they gave wrong advice to the young woman who was asking for advice. This is very worrying and is very likely to discourage other young women from coming forward. That is really the importance of this amendment.
My Lords, it certainly seems extraordinary that there is no policy for legislation determining whether to disclose the identity of a victim of serious sexual crime to the alleged stranger perpetrator. It seems to me that, while nothing is gained by disclosure in the police station, it could be very damaging to the victim. It is relatively easy, in today’s society, for anybody with access to the internet to trace and find the whereabouts of any person, just by having their name.
The Metropolitan Police were quoted in the Guardian on
“There is no specific policy or legislation which covers the issue of providing the name of a victim of rape to the suspect”.
“Instead, it is an operational decision taken by the officer in the case on a case-by-case basis”.
We know from Rape Crisis that at least one in 10 serious sexual offences and rapes is committed by a stranger. That equates to at least 9,000 stranger attacks each year, and means that 9,000 victims are being put at risk if their names are disclosed. I am aware that research undertaken by one brave victim of this crime, who asked each London borough what its policy was on anonymity and disclosure, found that, as has been mentioned already, it was completely inconsistent from borough to borough.
One victim said,
“as soon as he had my surname, he messaged me on Facebook. Nothing has ever been so shocking as seeing his picture come up with a message on there”.
Another victim said,
“my perpetrator was arrested a couple of days after the event and was given my full name. At that point, I had no idea who he was. The fact that he knows my full name and details is something I have always hated and part of what makes me regret ever going to the Police”.
A third victim said,
“the man who attacked me seven years ago has been in prison but is now coming up for Parole and it became clear that there was no comprehension by the authorities that I was concerned about him knowing my name. This left me in an impossible position where I had to choose between making my voice heard about this extremely dangerous sexual criminal or risk him having more details about me”.
That cannot be right. That is why I am supporting the amendment. We are putting these victims at terrible risk of further harm and stress, often months after the crime is committed. We know that some women have taken the drastic measure of changing their name, moving house and taking their name off the electoral register, to try to keep safe. If the amendment became law, a police officer would not disclose the identity of a victim where the perpetrator is a stranger, which would protect these victims.
I too support the amendment. M, as referred to in my noble friend’s speech, is a family connection—a very capable young woman, as can be seen from the fact that she wrote right round the Metropolitan Police to discover that there was indeed no policy about whether victims’ details were handed over. It was done quite routinely, on admittance, as it were, in a case in which two off-duty police officers had actually rescued her. This seems a most peculiar omission.
I should also point out that the new clause as drafted does not just cover rape or attempted rape, but stranger danger of other sorts. Many years ago I was the victim of an attempted mugging. I got the number of the chap’s motor bike, reported it to the police and offered to give evidence. In fact he was convicted, but the police kindly said that they did not need to invite me, because he had pleaded guilty to that and a multitude of other offences. But he had issued the traditional snarling claim that he knew where I lived and would come and get me if I spoke up.
At that time it was possible to feel fairly secure and confident, having a Jewish name—Cohen—that was extremely common in London, that if I removed my name from the London telephone book, probably nobody would find me. This is not the case any more. M is a young woman with her career to make, and necessarily has a Facebook presence. He can find her if he needs to—and this is a case in which there is considerable doubt about the chap’s mental capacity.
There are lots of cases like this that are not rape; there is also assault. As a lawyer, I am conscious that the proposed new clause may be too broadly drafted. I ask the Government to get parliamentary counsel on to it to ensure that it can be adopted. If not, I will return to the issue on Report, no doubt with the support of others. This seems to me an anomaly caused by just a lack of process and anybody thinking about it, and which renders ridiculous our attempts to protect victims of stranger danger.
My Lords, Amendment 228C in the names of the noble Lords, Lord Wigley and Lord Ponsonby, and the noble Baroness, Lady Howe, seeks to insert a new clause into the Bill. As we have heard, its aim is to provide additional protection for victims or witnesses of a serious sexual offence, using the test of whether it is reasonable to assume that a disclosure of the person’s identity,
“would put the victim or witness at risk of further harm”.
It is right to include the rights of victims and witnesses in primary legislation where possible, and this is what the amendment seeks to do. Both victims and witnesses of serious offences can be very traumatised by what has happened to them or what they have witnessed. The disclosure of the name of the victim or witness to the person alleged to have committed the offence could put them at risk of further harm, as we have heard, or of fear of further harm. That, in itself, can cause additional stress and trauma for the victim or witness. Therefore, this amendment would place a specific duty on the police, when considering releasing the names of victims or witnesses to the accused person, to take into account the matters listed in new subsections (2) and (3) of the proposed new clause. That would be a sensible and welcome move, and I hope the noble Baroness will respond positively to the amendment.
I fully endorse the comments of all those who have spoken to the amendment. I was particularly surprised to hear my noble friends Lord Ponsonby and Lady Cohen say that the police have no idea what the policy is in this area. I am amazed by that. I certainly fully endorse the amendment.
My Lords, as the noble Lord, Lord Wigley, explained, this amendment seeks to grant victims or witnesses of sexual or violent crime anonymity in cases where it is reasonable to assume that disclosure would put them at risk of further harm. The noble Lord has indicated that he is particularly concerned with cases of so-called “stranger rape”.
I say from the outset that I agree wholeheartedly that the criminal justice system must support and protect victims and witnesses, particularly victims of sexual offences who are especially vulnerable. There are already a number of means whereby those at risk of further harm can be safeguarded and I will briefly itemise these in a moment but, before doing so, I must point to a central difficulty with the noble Lord’s amendment. The overarching principle of our criminal justice system is that the defendant must be given a fair trial. This is clearly stated in Article 6 of the European Convention on Human Rights. Fundamental to this is the right of the accused to be informed promptly, in a language which he understands, and in detail, of the nature and cause of the accusation against him. I am sure the noble Lord accepts that the accused cannot be expected to defend himself properly at trial if he does not even know who is accusing him of the alleged crime. This amendment would fundamentally undermine that cornerstone of our justice system.
That is not to say that there should not be crucial safeguards in place for victims and witnesses who have had the grave misfortune to experience violent or sexual crimes. As I have indicated, there are already multiple mechanisms the police and courts can employ to protect victims. Where necessary for the purpose of the investigation, the police can seek to detain the accused for up to 96 hours pending charge and seek to have him or her remanded in custody post-charge. If it is not possible to bring charges within the time limits on pre-charge detention, the suspect can be bailed subject to conditions which prohibit contact with the victim.
There are also established provisions in legislation for witness protection programmes and the provision of special measures during criminal proceedings; for example, a complainant can give evidence via a live link or behind a screen.
There is already provision for anonymity of complainants or witnesses, to be used as an exceptional measure of last practicable resort. A witness anonymity order can be granted by the court if it is satisfied that their identification would adversely affect the quality of evidence given by them, or their level of co-operation with the prosecution. The Director of Public Prosecution’s guidance on witness anonymity is clear that where the prosecution cannot present its case in a way that allows the defendant to defend themselves, it is under a duty to stop the case, no matter how serious the allegations may be. Hence, this must be very carefully considered when deciding whether to grant victim or witness anonymity—fair, equal and open justice for all must be the imperative.
While I have every sympathy for the noble Lord’s objective of protecting vulnerable victims and witnesses, I hope he will accept that the blanket approach provided for in his amendment is fundamentally at odds with our system of justice and the right of the accused to a fair trial. It is important to remember that the accused is just that: accused. He or she is not convicted, and is presumed innocent until proved guilty. This amendment arguably assumes guilt and undermines the protections and safeguards against miscarriages of justice of which this country is justly proud. Moreover, there are already a number of mechanisms available by which victims and witnesses can be supported through the criminal justice process. Given these points, I hope that the noble Lord will be content to withdraw his amendment.
My Lords, I have listened carefully to the Minister’s response but I find her interpretation very strange indeed. I mentioned that the policy in fact varies from area to area within London, and that some police stations do operate the policy I am advocating of not giving out names. If this is a basic question of human rights, as was suggested, it seems to raise a fairly fundamental question about police stations following public policy or not.
With regard to giving the defendant a fair crack of the whip in the courts, what difference does it make if he knows the name of the victim or not, particularly in circumstances where he previously did not? If he did know it, giving him this information will not matter because he already has it. But if he did not, it is clear that he will be being given information that may well be prejudicial to the well-being of the victim in the fullness of time, and it will not do all that much to defend his circumstances in court.
I am very grateful to the noble Lords and Baronesses who have contributed to this debate, particularly the noble Lord, Lord Ponsonby, and the noble Baronesses, Lady Howe of Idlicote and Lady Cohen of Pimlico. The cases they made were very strong indeed. I am also grateful for the support of the noble Lord, Lord Kennedy, from the Opposition Front Bench. I do not believed that the response we have had answers the questions raised. I entirely accept that the wording of this amendment may be deficient but I ask, in all seriousness, that the Government look at this between now and Report. If they see, as do my colleagues and I, that there is a case for a change in law, I ask that they consider bringing forward their own amendment which meets the points raised while avoiding the deficiencies that have been pointed out. On that basis, I beg leave to withdraw the amendment.
Amendment 228C withdrawn.
Moved by Lord Wigley
228D: After Clause 145, insert the following new Clause—“Reviews of sentencingThe Secretary of State must by order under section 35 of the Criminal Justice Act 1988 (scope of Part IV) specify that the following additional offences may be reviewed under Part IV (reviews of sentencing) of that Act—(a) offences under section 4A (stalking involving fear of violence or serious alarm or distress) or 5 (restraining orders on conviction) of the Protection from Harassment Act 1997,(b) offences under section 76 (controlling or coercive behaviour in an intimate or family relationship) of the Serious Crime Act 2015,(c) offences under section 12 (support for a proscribed organisation) of the Terrorism Act 2000, and(d) offences under section 160 (possession of indecent photograph of child) of the Criminal Justice Act 1988.”
My Lords, Amendment 228D stands in my name and that of the noble Lord, Lord Ponsonby. This amendment increases the range of offences for which the Attorney-General has the power to refer a relevant lenient sentence to the Court of Appeal for review. The offences covered by the amendment are stalking, which my colleagues in the other place have been involved in seeking legislation on over the past two or three years—I am glad to see positive movement on this—multiple breaches of restraining orders, coercive control, incitement to support a terrorist organisation and the possession of indecent images of children. Those are the categories we refer to in the amendment.
The Criminal Justice Act 1988 gave the Attorney-General the power to refer unduly lenient sentences to the Court of Appeal. The power was rightly restricted to certain serious offences, but since that time new legislation has been enacted for other grave matters. The time is right to reflect those changes and to address the concerns about individual cases of leniency by adding these new offences to the relevant schedule to the 1988 Act. The changes are not retrospective but would give the Attorney-General the power to refer such lenient cases in the future.
There have been a number of sentences in individual cases in the recent past involving the offences I have listed in the amendment which have been widely reported and have indeed caused public concern. Subsection (a) of the proposed new clause refers to stalking, which is dealt with in Section 4A of the Act,
“involving fear of violence or serious alarm or distress”, would have been relevant, had it been enacted, to the sentence of only three years for the stalker of Emily Maitlis. This seemed to be very lenient given that the behaviour had gone on for more than 20 years and despite many previous convictions. The stalker of Claire Waxman, again with numerous convictions, got three years and was back in the community after 18 months. Longer sentences would not only be just, they would also allow for longer perpetrator treatment while in custody.
Stalking victims constantly complain that restraining orders do not work because they are not enforced. The perpetrator in the Claire Waxman case breached them many times and other women currently working with Voice 4 Victims say the same. Sometimes, for whatever reason, it appears that the police do not investigate, while in other cases the courts hand out fines or warnings, yet the maximum sentence for a breach is five years. The ability to refer multiple breaches for re-examination by the Court of Appeal would facilitate the raising of the threshold.
Coercive control in a domestic situation became law in 2015. The behaviour causes massive damage to predominantly female victims and can last for years. Women may be controlled financially or in terms of their movements by being confined to their homes, and harassed and bullied. Too few prosecutions has been brought to court so far. The ability of the Attorney-General to refer individual cases will help to highlight the serious nature of such unacceptable behaviour.
Section 12 of the Terrorism Act 2000 involves inciting support for a proscribed organisation. Earlier this year, the hate preacher Anjem Choudary was given three and a half years despite the fact that the court heard that he had encouraged at least 100 young people to turn to ISIS. He could be out in 20 months or less.
The inclusion of the possession of indecent images of children follows an extraordinary case this summer where a male offender was given a suspended sentence in spite of having thousands of images on his devices, including 400 category A images, which are the most vile. His defence argued for a non-custodial sentence on the grounds that he wanted to start a family.
This amendment, which has been drafted by Voice 4 Victims, would update the Attorney-General’s powers and increase public confidence in the sentencing process. I beg to move.
My Lords, I want to add a few words of support for this amendment. Four years ago I was fully in support of the creation of the offence of stalking, which involves putting a person in fear of violence, serious alarm or distress. Although the maximum sentence is five years, there have been a number of disturbing and unduly lenient court sentences for perpetrators who had been stalking their victims for a decade or more.
I recently met Claire Waxman who has been referred to and who had been hounded by a relentless stalker for 13 years. Her case highlighted the struggle that stalking victims face in the criminal justice system. It was one of the key cases given as evidence in the stalking law reform and it took over a decade for her perpetrator to receive a substantial custodial sentence. In those years, Claire said, “I felt completely failed by the justice system for allowing my long-term stalker to receive suspended sentences or very short jail sentences. These sentences served little purpose as he continued his criminal behaviour each time. I strongly believe had we been able to refer this case to the Attorney-General for the Court of Appeal, he may have received the right sentence earlier on, saving me from years of unnecessary harm and distress”. I very much hope that the Government will see a way to support this amendment fully.
My Lords, I also support this amendment, to which I have put my name.
As I mentioned in an earlier debate, I sit as a magistrate in central London for crime, youth and family matters. I have been a magistrate for just over 10 years and have seen a big change in the nature of crime which we deal with in London. While there is a decreasing overall amount of crime brought to courts in London, there is a rising proportion of crime related to domestic abuse. We all receive specialist training on that matter—we have specialist courts and are very careful about the way we deal with those matters in court. It is an ever increasing proportion of our workload, so I have given out many restraining orders and have also dealt with many breaches of restraining orders. When one gives a warning to somebody who has been given a restraining order, one can never really be too stark in explaining to the offender just how serious it is. Many times you get the impression that they do not appreciate the seriousness of their activities.
Even when a defendant has been acquitted and found not guilty, you can still put in place a restraining order if you believe it is suitable, and you still have to give a suitable warning for that restraining order being put in place. The amendment deals only with people who have been convicted, but restraining orders can be put in place when people are acquitted as well.
The purpose of this amendment is as a backstop to provide the ability to have higher sentences where the courts have put in place unduly lenient sentences. The maximum is five years, but very often there needs to be a facility and an ability to increase sentences if they are felt to be unduly lenient.
My Lords, one of the major concerns is that stalking is not used as a charge often enough. It is still too easy to charge with the offence of harassment, rather than stalking. We really need to make sure that the criminal justice system recognises and understands stalking—that was the law reform in 2012 that we worked hard to achieve. However, it is also important to recognise that some cases of stalking are consistently appalling and are also coercive behaviour.
The noble Lord, Lord Wigley, referred to the case of Emily Maitlis’s stalker who had previous convictions, including breaches of restraining orders in 2008, 2010, 2013, 2014 and earlier this year. I am sorry to say that that is not uncommon behaviour with stalkers and there needs to be the facility for the courts to apply for more serious custodial sentences where orders are consistently breached—not least the way that the stalking and coercive behaviour continues. One of the problems we have heard time and again from victims of domestic violence, stalking and coercive behaviour is the way other courts are used—the civil courts or family courts that do not recognise restraining orders that have been held elsewhere. We heard of information, which had not been passed to the family courts, of one former stalker who had been trying to get in front of his ex-partner through the family courts. It is very necessary to have this limited use but essential tool available for the judiciary.
My Lords, the Government recognise and agree with the noble Lord’s desire to see the unduly lenient sentence scheme extended to enable reviews of sentences for a wider range of offences. The scheme is a valuable way of ensuring that sentences for serious crimes can be challenged when they are considered to be unduly lenient. The Government have a manifesto commitment to extend the scope of the scheme and on
The noble Lord’s amendment seeks to use primary legislation to require the Lord Chancellor to exercise the order-making power she has under Section 35 of the Criminal Justice Act 1988 to add offences to the scheme. This would add additional complexity to the legislative framework around the scheme and would curtail the Lord Chancellor’s discretion to amend the scheme as provided by the 1988 Act. Under the current provisions, the Lord Chancellor can amend the scope of the scheme by order and the Government can consider more broadly what offences or types of offences are most appropriate for inclusion at any time, as we have announced we will do with terrorism offences. With the reassurance that the Government intend to honour their manifesto commitment, I hope that the noble Lord will feel happy to withdraw his amendment.
My Lords, I am grateful to the Minister for that response and the recognition that there is a need to act on this. I ask for her confirmation that the statutory instrument system available to the Minister to take the action I referred to is applicable in all the cases listed in the amendment. If she wants to intervene, she can by all means do so.
I was just going to ask whether I could confirm that in writing, because I would not want to give misinformation at the Dispatch Box.
That is fair enough. I accept that. I do not expect any Minister necessarily to carry all the details on their fingertips, but it would be helpful if we had a response on that before Report so that, if it is necessary to take this matter further on Report, there is an opportunity to do so.
The Minister heard the comments made by the noble Baronesses, Lady Howe of Idlicote and Lady Brinton, and by the noble Lord, Lord Ponsonby, on this matter. The feeling is generally shared that there needs to be action, and it is shared by the Government. The question is how it can be done and, perhaps more importantly, when it will be done. If these order-making facilities are available to the Minister, why have they not been used? If they are to be used, when will they be used? If there was a definitive statement in those terms we would be a little happier in withdrawing the amendment. There is an opportunity to come back on Report. I hope that between now and then these angles will be covered, either in correspondence or by other means, so we can be assured that action is not only promised but will be taken in a short timescale to put this right. On that basis, I beg leave to withdraw the amendment.
Amendment 228D withdrawn.
Amendment 228E had been withdrawn from the Marshalled List.
Moved by Baroness Finlay of Llandaff
228F: After Clause 145, insert the following new Clause—“Coroners’ investigations into deaths: meaning of “state detention”(1) Section 48 of the Coroners and Justice Act 2009 (interpretation of Part 1: general) is amended as follows.(2) In subsection (1), in the definition of “state detention”, after “subsection (2)” insert “(read with subsection (2A))”.(3) In subsection (2), at the beginning insert “Subject to subsection (2A),”.(4) After subsection (2) insert—“(2A) But a person is not in state detention at any time when he or she is deprived of liberty under section 4A(3) or (5) or 4B of the Mental Capacity Act 2005.””
My Lords, I thank the Minister and her officials for their time and help over the issue of this amendment. I declare my interest as independent chair of the National Mental Capacity Forum, and it is in that role that I have heard repeatedly about a problem relating to people who die when subject to deprivation of liberty safeguards. This new clause amends the meaning of state detention in Section 48 of the Coroners and Justice Act 2009 to correct the problem that I will now explain. I want to explain first how the amendment works and then some of the background as to why it really is needed.
The amendment removes the duty on coroners to conduct an inquest in all cases where the deceased had an authorisation for the deprivation of their liberty in place either under deprivation of liberty safeguards or a Court of Protection order or because the deprivation of liberty was otherwise authorised by the Mental Capacity Act 2005.
Subsections (2) and (3) of the new clause amend Section 48 of the Mental Capacity Act 2005 to provide a new definition of state detention. To do this, there is a new subsection inserted into the Coroners and Justice Act 2009 to provide that a person is not considered to be under state detention for the purposes of that Act when they are deprived of their liberty under the relevant sections of the Mental Capacity Act 2005. This covers the deprivation of liberty safeguards, which can be from a Court of Protection order, from a DoLS authorisation or, where the deprivation of liberty was urgently required, pending a decision by the Court of Protection on the authority to restrict the person’s liberty. The second amendment makes a consequential change to the Long Title of the Bill.
Let me explain why this new clause is needed. After the Cheshire West judgment, the number of DoLS applications has risen enormously. This was the subject of debate in this House on
In 2015 the average time for inquests was 20 weeks, although coroners tried very hard to ensure that deaths under DoLS, when clearly of natural causes, were dealt with more quickly. To put the numbers in context, of the more than 7,000 deaths under DoLS, 6,760—or 94%—were found at inquests to be natural.
The distress to the bereaved has become a common cause of complaint to the Department of Health. In addition, it is not a good use of coroners, who should be investigating deaths where there is any suspicion whatever. Indeed, I remind the House that the Ministry of Justice’s Guide to Coroner Services states:
“Registrars of births and deaths, doctors or the police must report deaths to a coroner in certain circumstances. These include where it appears that: no doctor saw the deceased during his or her last illness; although a doctor attended the deceased during the last illness, the doctor is not able or available, for any reason, to certify the death; the cause of death is unknown; the death occurred during an operation or before recovery from the effects of an anaesthetic; the death occurred at work or was due to industrial disease or poisoning; the death was sudden and unexplained; the death was unnatural”— so that includes all suspected suicides—
“the death was due to violence or neglect; the death was in other suspicious circumstances; or the death occurred in prison, police custody or another type of state detention”.
The Ministry of Justice document goes on to say:
“If you believe that a death of this kind has not been reported to the coroner, you may report it yourself.”
In other words, relatives who have any concern can themselves report to the coroner. It goes on to say:
“You should do this as soon as possible and before the funeral. The coroner will then inform you of the action he or she proposes to take.”
Nothing in the amendment removes the obligations to inform the coroner if there is any suspicion whatever around a death. The amendment is to remove the mandatory requirement to hold an inquest where the deceased was deprived of their liberty under all relevant sections of the Mental Capacity Act—or, indeed, where the deprivation of liberty was to provide care to them.
Under the Mental Capacity Act a person who lacks capacity may be detained in circumstances which amount to deprivation of liberty. No detention amounting to deprivation of liberty may be permitted without lawful authorisation, because it would otherwise constitute false imprisonment. The Mental Capacity Act provide safeguards known as DoLS and Court of Protection orders to be made depriving a person of liberty for their care. It also allows for the deprivation of liberty of a person for the purpose of giving life-sustaining treatment only where a decision of the court is pending.
I want to address a concern that has been raised with me in relation to anyone who dies under the care of a mental health trust. A suicide, unexpected or sudden death must always be referred to the coroner, but I would expect there to be a routine review of any death in a mental health trust or similar organisation. Such a review should be available to the Care Quality Commission inspectors and I would expect the inspectors to ask about the number of deaths that had occurred in people subject to a deprivation of liberty safeguard application or authorisation. They should look in depth at the quality of the review of care that had taken place. Additionally, anyone who has concerns at any stage should raise those concerns, whether through whistleblowing or through the complaints process.
Complaints and how they are handled also form part of CQC inspections and I believe that such searching questions are far more likely to detect poor care than relying on a referral to the coroner, who is only looking at one instance and cannot see how care is delivered across a whole organisation. The recent incidents of poor care of those with leaning difficulties that have come to light are certainly alerting inspectors that they must be more rigorous in their inquiries than before. To summarise, I hope that this amendment will correct an anomaly that has caused more than 6,500 bereaved families unnecessary distress in the last year alone. I beg to move.
My Lords, I am grateful to the noble Baroness, Lady Finlay, for this amendment. The Government are pleased to be able to offer our support for this amendment, which will minimise the stress on bereaved families at a very difficult time for them. The amendment will fully address the concerns that no family, having watched and comforted their loved one through his or her final days, should then be unnecessarily subject to the anxiety and confusion of having their death investigated by a coroner. I thank the noble Baroness for raising the profile of this important issue and for her valuable input, which the Government very much welcome and support. I commend her amendment to the Committee.
Amendment 228F agreed.
Amendment 229 had been withdrawn from the Marshalled List.
Clause 146 agreed.
Moved by Lord Wigley
230: After Clause 146, insert the following new Clause—“Digital crime review(1) The Secretary of State has a duty to provide for a review of legislation which contains powers to prosecute individuals who may have been involved in the commission of digital crime, in order to consolidate such powers in a single statute.(2) In conducting the review under subsection (1), the Secretary of State must have regard to the statutes and measures that the Secretary of State deems appropriate, including but not limited to—(a) section 1 of the Malicious Communications Act 1988;(b) sections 2, 2A, 4 and 4A of the Protection from Harassment Act 1997;(c) sections 16, 20, 39 and 47 of the Offences Against the Person Act 1861;(d) sections 10, 13 and 55 of the Data Protection Act 1998;(e) section 160 of the Criminal Justice Act 1998;(f) sections 30(1),(3),(5),(6) and 78(5) of the Regulation of Investigatory Powers Act 2000;(g) the Computer Misuse Act 1990;(h) the Contempt of Court Act 1981;(i) the Human Rights Act 1998;(j) sections 4, 4A, 5, 16(b) and 18 of the Public Order Act 1986;(k) sections 46 and 145 of the Serious Organised Crime Act 2005;(l) section 48 of the Wireless Telegraphy Act 2006;(m) sections 32 to 37 of the Criminal Justice and Courts Act 2014; (n) the Protection of Children Act 1978;(o) the Obscene Publications Act 1959;(p) sections 28 to 32 of the Crime and Disorder Act 1998;(q) sections 145 and 146 of the Criminal Justice Act 2003;(r) sections 127 to 131 of the Communications Act 2003;(s) section 4 of the Data Retention and Investigatory Powers Act 2014;(t) section 5 of the Sexual Offences (Amendment) Act 1992;(u) the Counter-Terrorism and Security Act 2015;(v) sections 33(5) and 29(6) of the Protection of Freedoms Act 2012;(w) section 2 of the Criminal Damage Act 1971;(x) sections 4, 8, 10 and 62 of the Sexual Offences Act 2003;(y) section 43 of the Criminal Justice and Police Act 2001;(z) section 127 of the Magistrates' Court Act 1980;(za) section 2(1) of the Suicide Act 1961;(zb) section 63 of the Criminal Justice and Immigration Act 2008;(zc) section 21 of the Theft Act 1968;(zd) section 51(2) of the Criminal Law Act 1977.(3) The Secretary of State has a duty to determine for the review any other statute under which persons have been prosecuted for a crime falling under subsection (1).(4) In conducting the review under subsection (1), the Secretary of State must consult with any person or body the Secretary of State deems appropriate, including but not limited to—(a) the police;(b) the Crown Prosecution Service;(c) the judiciary; and(d) relevant community organisations.”
My Lords, I will speak also to Amendments 231 and 231A in this group; all are also in the names of the noble Lord, Lord Ponsonby, and the noble Baroness, Lady Howe. The amendments address issues related to digital crime review, surveillance and monitoring offences, and digital crime training and education. I am grateful to Harry Fletcher of the Digital-Trust for his assistance in drafting these amendments. First, they consolidate the numerous statutes that have been enacted over the last 30 years, a period that covers the huge expansion of illegal digital activity. Secondly, they aim to update the law to address the most recent online behaviour. Thirdly, they attempt to ensure that police officers are properly trained in respect of digital crime.
The growth in online crime has been truly immense. Two years ago the head of the College of Policing said on Radio 4 that half of all crime reported to front-line officers had a digital element. By now, it represents a majority of crime. More than 30 separate Acts of Parliament cover various aspects of this category of crime, from the Offences Against the Person Act 1861 to the Data Retention and Investigatory Powers Act 2014. Inevitably, such a plethora of law lacks clarity and is confusing for the police in undertaking their responsibilities.
The Computer Misuse Act 1990 was originally intended to deal with hacking, unauthorised access, stealing data and circulating viruses. Yet between 1990 and 2006 there was on average just one conviction per month. Parliamentary Answers show that between 2007 and 2013 there was a slight improvement—the number of guilty outcomes increased to 1.5 each month across England and Wales. My amendments would place a duty on the Secretary of State to review and consolidate the existing legislation. In doing so, the Minister would of course consult the police and other relevant bodies.
Many online activities may not be covered by current statutes, however. The amendments clarify the situation. For example, use of a digital device to repeatedly locate, listen to or watch a person without legitimate purpose becomes a specified offence. Similarly, installing spyware without the user’s agreement would be an offence, as would taking multiple images of a person, unless it is in the public interest.
In a very timely report, published on
I now turn to the extent and type of digital crime. According to the Digital-Trust, digital abuse is rising steeply as a result of five identifiable factors. First, there is the increased use of technology at work and for social interaction and entertainment. Secondly, ever-increasing technological complexity results in increased risks. Thirdly, technology has become too intricate for victims to recognise the threats and know how to respond. Fourthly, surveillance technology has been consumerised and is available to abusers. Finally, the volume and speed of change makes it difficult for individuals, organisations and, indeed, the criminal justice system to react in a timely fashion.
Many types of behaviour are seen in digital abuse, including, first, unwanted communications by phone, text, emails, electronic messaging and social media; secondly, intimidation, including the posting of threats of physical violence and humiliating victims by posting explicit photographs; thirdly, grooming, using online information to groom a victim financially or sexually; and fourthly, surveillance, illegally accessing accounts or using computer technology to monitor movements, conversations and contacts. The phenomenal growth of online crime threatens to overwhelm those who may be expected to move against the perpetrators. There is a pressing need to step up action, and the authorities need the law to facilitate and support the initiatives which are now urgently needed. I beg to move.
My Lords, I rise to support the noble Lord, Lord Wigley, who has made almost all the points I was going to make. I am very conscious that there has been a large and ongoing investment by government to address the changing nature of digital crime. Metropolitan Police officers now routinely wear body cameras, we have large investments in data collection and the presentation of data in courts, and the CPS is grappling with the changing nature of crime. This is a massive amount of investment, and a massive amount of data has to be handled to go through the court process properly.
I want to make a point that is slightly different from the one made by the noble Lord, Lord Wigley. In my experience, digital is also changing the nature of crime in the domestic context. I have seen films of police officers going into houses where there is a domestic dispute. The situation is very stark and is seen immediately. I suggest that digital makes it much more likely that there is an early guilty plea in such cases. The whole context of crime is changing—not just digital crime but the way more traditional crimes are perceived and the likely conviction rates of those crimes. I support the amendment.
My Lords, I am grateful to the noble Lord, Lord Wigley, for his explanation of these amendments, which call for a review of the criminal law in relation to digital crime. The Government of course share the noble Lord’s concern about online crime, especially where new technologies, which the noble Lord, Lord Ponsonby referred to, are used to abuse, harass or intimidate people.
Amendment 230 seeks to codify the existing criminal law in relation to digital and cybercrime into a single statute. I share the noble Lord’s concerns about online crime, but I do not believe a single statute for digital and cybercrime would be helpful or a good use of resources. Indeed, I am not persuaded that the existing criminal law in this area is defective. As the Committee will be aware, any action that is illegal when committed offline is also illegal if committed online. Current legislation, some of which was passed before the digital age, has shown itself to be flexible and capable of catching and punishing offenders whether their crimes are committed by digital means or otherwise. The majority of the statutes and offences listed in Amendment 230 relate to offences that can be carried out by non-digital and digital means.
Producing a single statute, containing,
“powers to prosecute individuals who may have been involved in the commission of digital crime”, as Amendment 230 suggests, would add further complications to the criminal law by creating new overlapping offences, reproducing and duplicating many existing laws. Furthermore, many existing offences would need to be retained for non-digital offending, so we would end up with parallel offences for crimes committed online and offline.
However, while I am not convinced of the need for a review as suggested here, I assure the noble Lord that where specific gaps in legislation are identified, or where new behaviours that should be criminalised are brought to light, we will continue to take action. The Government’s record has shown that we will and do legislate when we need to, such as passing the Serious Crime Act 2016, which further strengthened the Computer Misuse Act 1990.
Amendment 231 would require the Home Office to ensure funding is made available to every police force to train their officers in how to investigate digital crime and abuse. Mainstream cybercrime training is already available to police officers and while I have sympathy with the underlying objective of the noble Lord’s amendment, I do not believe that legislation is necessary to require police forces to provide such training. Furthermore, subsection (2) of the proposed new clause, requiring all police forces to record complaints of digital crime and abuse and their outcomes, is unnecessary as I can assure the noble Lord that work in this area is already under way.
From 2015, police-recorded crime data collection also includes a mandatory online flag that allows police forces to record online instances of crimes, including stalking and harassment, whether the crime took place wholly online or just had an online element to it. The Office for National Statistics published this data, for the first time, as experimental statistics in July. We welcome the continuing improvement in the statistics on reported fraud and cybercrime that better reflect the extent of the problem. Having an accurate picture is vital to informing the most appropriate response to these crimes. It is important that police forces be able to respond to changing technologies, and we recognise the need to support forces to invest in the capabilities they need. However, the training of police officers is an operational matter and critically, it is the police themselves who can best determine what their training needs are.
Amendment 231A seeks to create an array of new offences relating to digital surveillance and monitoring, presumably to address issues such as online harassment and stalking. The Government are absolutely clear that abusive and threatening behaviour is totally unacceptable in any form, online or offline. Existing legislation in the form of the Protection from Harassment Act 1997 includes the offences of stalking, harassment and putting people in fear of violence, and applies to offences committed online.
In 2015-16, almost 13,000 prosecutions were commenced for harassment and stalking offences—a rise of 864 offences from 2014-15 and the highest volume ever recorded. The Government have strengthened the law on stalking: an insidious crime that can involve a wide range of behaviours, which may include the misuse of digital equipment, spyware and social media. There is no exhaustive list of behaviours relating to stalking, but recognising the ongoing pattern of fixated, obsessive behaviour is really important in tackling stalking.
New stalking offences were introduced in 2012. They are stopping people living in fear and preventing escalation to more serious violence. In 2015-16, more than 1,100 prosecutions were commenced under the new stalking legislation. Our recent consultation on the introduction of a new civil stalking protection order demonstrates our determination to support victims of stalking at an earlier stage and address the behaviour of perpetrators before it becomes entrenched. This draws on our successful roll-out of other civil orders, such as FGM protection orders, domestic violence protection orders and sexual risk orders.
I am sorry to have gone on somewhat, but I hope the noble Lord recognises that the Government keep the criminal law in this area under review and that police forces are alive to the need to have the capabilities to tackle such crime. I hope the noble Lord will feel happy to withdraw his amendment.
My Lords, I am grateful to the noble Lord, Lord Ponsonby, for his support. I know the interest that the noble Baroness, Lady Howe, has taken in these matters. She had to leave before this debate but she has been one of the leading people in questions of cybercrime and associated matters.
At this time of night, I hate to be fractious with the Minister but I am afraid that what came over was complacency. There is an avalanche of cybercrime and associated dangers flooding the country. The police and other authorities do not have adequate resources, training or back-up to handle it. Unless action is taken to a much greater extent than it is now, this will overwhelm us. I urge the Minister, although she cannot agree with my amendment, to take back to the department the very serious worry that is represented by these amendments, to see what can be done to speed up action and provide more resources to enable those who have the responsibility of bringing perpetrators to justice to do that and not feel that they are fighting a losing battle. However, I beg leave to withdraw the amendment.
Amendment 230 withdrawn.
Amendments 231 and 231A not moved.
Clauses 147 and 148 agreed.
Clause 149: Extent
Moved by Baroness Chisholm of Owlpen
232: Clause 149, page 170, line 3, leave out paragraph (g)
233: Clause 149, page 170, line 5, after “68” insert “and 72A”
233A: Clause 149, page 170, line 19, after “107” insert “(Schedule to be inserted as Schedule 7A to the Criminal Justice and Public Order Act 1994), (Schedule to be inserted as Schedule 7B to the Criminal Justice and Public Order Act 1994)”
234: Clause 149, page 170, line 46, leave out “Part 6” and insert “sections 111 to 116”
234A: Clause 149, page 170, line 46, at end insert “and section (Controls on ammunition which expands on impact)”
234B: Clause 149, page 170, line 46, at end insert “and section (Limited extension of firearm certificates etc)”
Amendments 232 to 234B agreed.
Amendments 235 and 235A not moved.
Amendment 236 had been withdrawn from the Marshalled List.
Moved by Baroness Williams of Trafford
237: Clause 149, page 171, line 8, at end insert—“( ) Section (Anonymity of victims of forced marriage: Northern Ireland) extends to Northern Ireland only.”
238: Clause 149, page 171, line 8, at end insert—“( ) The power under section 60(4) of the UK Borders Act 2007 may be exercised so as to extend to any of the Channel Islands or the Isle of Man any amendment made by or under this Act of any part of that Act (with or without modification).”
Amendments 237 and 238 agreed.
Amendment 239 had been withdrawn from the Marshalled List.
Clause 149, as amended, agreed.
Clause 150: Commencement
Moved by Baroness Williams of Trafford
239A: Clause 150, page 171, line 16, at end insert—“( ) sections (Posthumous pardons for convictions etc of certain abolished offences), (Other pardons for convictions etc of certain abolished offences) and (Sections (Posthumous pardons for convictions etc of certain abolished offences) and (Other pardons for convictions etc of certain abolished offences): supplementary);”
Amendment 239A agreed.
Amendments 239B to 240 not moved.
Moved by Baroness Williams of Trafford
241: Clause 150, page 171, line 29, at end insert—“( ) section (Anonymity of victims of forced marriage: Northern Ireland);”
Amendment 241 agreed.
Amendments 242 to 244 had been withdrawn from the Marshalled List.
Clause 150, as amended, agreed.
Clause 151 agreed.
In the Title
Moved by Baroness Williams of Trafford
245: In the Title, line 21, after “firearms” insert “and pyrotechnic articles”
246: In the Title, line 28, after “documents;” insert “to make provision for pardons for convictions etc for certain abolished offences;”
247: In the Title, line 31, after “harm;” insert “to make provision about coroners’ duties in respect of deaths in state detention;”
Amendments 245 to 247 agreed.
Bill reported with amendments.
House adjourned at 9.45 pm.