Amendment 104B

Police, Crime, Sentencing and Courts Bill - Report (5th Day) – in the House of Lords at 5:30 pm on 12th January 2022.

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Lord Ponsonby of Shulbrede:

Moved by Lord Ponsonby of Shulbrede

104B: After Clause 172, insert the following new Clause—“Video recorded cross-examination or re-examination of complainants in respect of sexual offences and modern slavery offences (1) Section 28 of the Youth Justice and Criminal Evidence Act 1999 comes into force in relation to proceedings to which subsection (2) applies on the day on which this Act is passed.(2) This subsection applies where a witness is eligible for assistance by virtue of section 17(4) of the Youth Justice and Criminal Evidence Act 1999 (complainants in respect of a sexual offence or modern slavery offence who are witnesses in proceedings relating to that offence, or that offence and any other offences).(3) This section has effect notwithstanding section 68(3) of the Youth Justice and Criminal Evidence Act 1999.”

Photo of Lord Ponsonby of Shulbrede Lord Ponsonby of Shulbrede Shadow Spokesperson (Justice), Shadow Spokesperson (Home Affairs)

My Lords, the proposed new clause in Amendment 104B would bring Section 28 of the Youth Justice and Criminal Evidence Act 1999, which provides for the cross-examination of vulnerable witnesses to be recorded rather than undertaken in court, fully into force for victims of sexual offences and modern slavery offences. When we debated this in Committee, the point was made that there have been a number of pilots of this approach in, I believe, three Crown Courts in England and Wales. A further point was made in the response by the noble and learned Lord, the Advocate-General for Scotland, that it would be judge-intensive to have judges present when recording the evidence. For those reasons, we were invited to reject the amendment.

In response to those points, I ask the Minister when the results of the pilot will come forward, so we can have an informed decision about whether to roll out this approach. I also question the assertion that this is a very judge-intensive process because judges have to be present when the recordings are made. I made this point to the Minister when we met in private a few days ago. I have done this procedure several times within youth court and, as far as I am aware, there was never a judge or magistrate present then. I have also done this process in Crown Court and for an appeal. On that instance, I was sitting as a winger and there was a Crown Court judge in the middle. We heard the evidence by videolink and, again, as far as I was aware, there was no judge present. So I question the assertion that it would be very judge-intensive to use this approach in the adult court for victims of sexual offences and modern slavery offences.

The proposed new clause in Amendment 104C would give the complainant a right of representation with legal aid, if they are financially eligible, to oppose any application to admit Section 41 material about them. It would also give complainants the right to appeal to the Court of Appeal if the application is allowed, in whole or in part. The proposed new clause also provides that the complainant is not compellable as a witness at the application. I am grateful to the noble Baroness, Lady Jones of Moulsecoomb, for putting her name to this amendment.

This issue was again explored at some length in Committee. My noble and learned friend Lord Falconer made the point that it is very sensitive. If there is the possibility of somebody’s sexual history becoming known in a wider context within court, it acts as a cooling method for people making allegations. This is a way around that problem to try to give people the confidence to come forward and make complaints of sexual assaults.

Amendment 107C is in the name of my noble friend Lord Coaker. It would require police forces to have a specialist rape and serious sexual offences, or RASSO, unit. As background, I have three facts to share with the House. First, two-fifths of police forces currently do not have one of these units, which specialise in the prosecution of rape and serious sexual offences and supporting victims of these offences. Secondly, the current prosecution rate for reported rapes is about 1.4%. No matter how many times we hear this statistic, it remains deeply shocking. Finally, Home Office figures show that the number of victims dropping out of prosecutions has increased to a record 41%. In each of these cases, we are failing to deliver justice for a victim and to tackle a dangerous predator.

MPs and noble Lords from across this House have worked, with limited success, to make tackling violence against women and girls a part of this Bill, including explicitly recognising violence against women and girls as serious violence under the serious violence reduction duty. We are in a situation where this Government may pass a flagship piece of criminal justice legislation without including any specific plans to improve the investigation and prosecution of rape and serious assaults. This issue needs to be taken forward in partnership with the police and finally recognised as a priority. I look forward to what I hope will be a positive response from the Minister and beg to move.

Photo of Baroness Jones of Moulsecoomb Baroness Jones of Moulsecoomb Green

I reassure noble Lords that I will not be speaking on every amendment today, but I regret that all those that we have discussed so far, including this one, will not go to a vote. That is a real shame, because they are so sensible.

I congratulate the noble Lord, Lord Ponsonby, on tabling the amendment to which I have put my name. I support all the amendments in this group, not just Amendment 104C. The criminal justice system is hugely distrusted by survivors of sexual violence, based on the way they are treated when they come forward to make a complaint. There have been some important steps forward over the years, but trust is still far lower than it needs to be for survivors to come forward, go through the whole criminal justice system and have their lives pored over. Granting the right to complainants to be represented by a lawyer in an appeal to adduce evidence on questions of sexual conduct would be an important leap forward. The complainant is seen as a neutral third party with no particular legal rights, rather than someone deserving legal protection and representation, and this really has to change.

Photo of Lord Paddick Lord Paddick Liberal Democrat Lords Spokesperson (Home Affairs)

My Lords, my noble friend Lord Marks of Henley-on-Thames is leading for us on this group, but I want to speak on Amendment 107C. I was commissioned by the then Commissioner of the Metropolitan Police, now the noble Lord, Lord Blair of Boughton, to conduct a review of rape investigation in the Metropolitan Police, working together with Professor Betsy Stanko OBE.

At that time, the Metropolitan Police had specialist rape investigation units. Their performance was mixed, but they were considerably better than the experiment in community policing that was being conducted in one part of London. Small teams of detectives were allocated to each part of the borough to investigate all crime there, including rape and serious sexual offences. In addition to being overwhelmed by large numbers of more minor criminal investigations, they lacked the experience and expertise of officers who specialise in rape and other sexual offences.

I know from practical experience on the ground within the police service that specialist rape and serious sexual offences units provide much better outcomes for the victims and survivors of these types of crime. I doubt that legislation such as this amendment can override the operational independence of chief constables, but the principle is right and the Home Secretary, the College of Policing Limited—we will come to that in an upcoming group—HMICFRS and police and crime commissioners should all exert pressure on chief constables to ensure that they are established.

Photo of Lord Marks of Henley-on-Thames Lord Marks of Henley-on-Thames Liberal Democrat Lords Spokesperson (Justice)

My Lords, we support all the amendments in this group. First, I will consider Amendment 104B. As explained by the noble Lord, Lord Ponsonby, this amendment would authorise a special measures direction to enable videorecording of cross-examination of complainants in criminal proceedings for sexual offences or modern slavery offences, in order to enable their evidence to be given remotely.

This is a sensible measure for the protection of witnesses not only from alleged perpetrators but from the trauma of giving evidence in these difficult and painful cases. We have heard many times in debates on this Bill and on the Domestic Abuse Act how painful an ordeal giving evidence is likely to be. In the absence of a special measures direction, complainants who are witnesses have to give evidence before strangers, often in the presence of their assailants or exploiters and often under hostile questioning, to relive some of the most painful experiences of their lives. Nor should we forget how, in these cases, recording the evidence of complainants might well be the very best way of securing truthful and accurate evidence so that courts might be better placed to do justice than if they had to rely on the live oral evidence of very frightened and intimidated witnesses.

We also support Amendment 104C in the names of the noble Lord, Lord Ponsonby, and the noble Baroness, Lady Jones of Moulsecoomb, because we have heard that Section 41 applications, if granted, permit the most intrusive and personal questioning of complainants about their previous sexual history. Such questioning might sometimes legitimately be regarded by a court as necessary in the interests of justice, but even when that is the case it nevertheless involves a gross invasion of the privacy, the sense of decency and the perceived rights of the complainant. The noble Lord and the noble Baroness are entirely right to seek the protections for the complainant that the amendment involves: the right to take part in the application or not at her choice, because it is generally a woman’s choice; to be legally represented; and to have a right of appeal against a direction admitting questioning or evidence of previous sexual conduct.

These Section 41 applications and the fear of the questioning they involve have been a reason for the large numbers of sexual offences going unreported or unprosecuted, as complainants are not prepared to go through the hell of facing such cross-examination and they pull out of cases for fear of it. They should be entitled to significant legal protection, just as if they were parties, when such an important issue for their personal integrity is considered by the courts. The protections proposed in the amendment are fully justified.

Finally, we support Amendment 107C on rape and serious sexual offences units—the so-called RASSO units—for the reasons given by the noble Lord, Lord Ponsonby, on behalf of the noble Lord, Lord Coaker, and by my noble friend Lord Paddick. I will try not to repeat the points he made.

Historically, there has been a problem, which we should not seek to deny, in ensuring that police forces treat rape and serious sexual assault with the importance these offences merit. It might be that the situation has improved, and I have no doubt it has. In most forces, victims are treated sympathetically, with tact and care, and derive support from the officers handling their case. However, the public, and women in particular, still lack confidence in the treatment they are likely to and do receive from the police if they are victims of sexual assault. This is one of the factors again driving the low rate of reporting and prosecutions, and the high rate of the withdrawal of complaints. The noble Lord, Lord Ponsonby, gave us the figures, with which we have become familiar.

Specialist units are likely to concentrate expertise and experience of dealing with rape and serious sexual offences in the hands of those who really know about them. This amendment concentrates on the specialist training of the staff in such units. That is critical. Such units have the potential to improve the evidence-gathering process and ultimately, one would hope, the reporting and the prosecutions of offences and the conviction rates, which, as we know, are appallingly low.

All the amendments in this group identify serious issues and propose practical, worthwhile and achievable solutions. In respect of each of them, I suggest it would be helpful for the Government simply to accept them or to come back with alternatives to similar effect at Third Reading.

Photo of Lord Wolfson of Tredegar Lord Wolfson of Tredegar The Parliamentary Under-Secretary of State for Justice

My Lords, I recognise that behind all these amendments is a dedication to improving the way in which the criminal justice system handles sexual offences cases and supports victims. On both those points, that dedication is shared by the Government. It is absolutely right that we do as much as we can to support all victims, including those of sexual offences, and help bring to justice those guilty of those very serious crimes. I know that there is no disagreement between us on the need to continue to improve the victims’ experience of the criminal justice system, and of the important role that special measures, such as Section 28, can play in supporting victims and witnesses to provide their best evidence.

We recognise the benefit that pre-recorded cross-examination and re-examination—I will use the shorthand, Section 28—can have in helping to improve the experience of victims. It enables them to give their evidence earlier in the process and outside the live trial. We are committed to extending this measure so that more may have access to it. That is why, although the noble Lord, Lord Ponsonby of Shulbrede, mentioned three Crown Courts where the pilot commenced—he was absolutely right: on 3 June 2019 we commenced the pilot in Leeds, Kingston upon Thames and, I am happy to say, Liverpool—in September 2019 we rolled it out to a further four courts, so we now have seven: Durham, Harrow, Isleworth and Wood Green. That fulfils a commitment in the rape review as well.

We have since announced plans to extend Section 28 for this cohort of cases even further. We are working to roll it out to all Crown Courts nationwide as soon as practicable. We are working with the police, the judiciary and the CPS to make the various operational changes needed to support the expansion. We hope this will enable more victims to use Section 28 to give their best evidence. I underline that, ultimately, the use of Section 28 in any particular case is a matter for the trial judge, who remains a master of his court—forgive the slightly sexist language there; I was struggling for the neutral term, but noble Lords will know what I mean.

We have also committed to testing the provision of video recorded evidence within the youth courts for vulnerable victims and witnesses, which should help us to see whether further expansion of the wider provision will support longer-term plans. We hope to begin this work in the spring. We have already started preparations with judicial colleagues and other partners in the criminal justice system, but we cannot support an immediate full rollout to all courts, as the amendment would require. We believe that our priority must be to roll out Section 28 in the Crown Court first. This is to ensure that complainants of rape and sexual offences can access it around the country as soon as possible. This is where the measure is already in place for vulnerable witnesses and victims of the most serious crimes.

There are a number of risks that we are concerned about if we did this too fast. It could place unknown and untested pressures on some of our partners in the criminal justice system. We want to see how the measure would work in other courts, such as magistrates’ courts or the family court. There are different operational requirements there. Operational considerations include the impact on the police and the resources required to support an increase in achieving best evidence interviews, which the police would need to undertake ahead of the Section 28 hearing. We also want to ensure that the Section 28 technology can physically accommodate the increase.

On the two specific questions put to me, the review of the pilot is ongoing. I do not have a date when it will be completed, but I undertake to keep the noble Lord fully informed of that. When we have a date, we will obviously provide it.

On the issue of judge involvement, I listened very carefully to the noble Lord, who referred to a conversation that we had. The information that I have is that the judge, counsel and defendant need to be present for the Section 28 hearing in the same courtroom, with the witness live video-linked into it for the hearing itself. The judge will obviously also need to be present when the Section 28 recording is played back in the live trial. But I listened carefully to what the noble Lord said, and it may be that it is worth continuing a discussion on that, because his personal experience appeared to be different—so I am happy to continue discussing that.

I turn to Amendment 104C. As my noble and learned friend Lord Stewart reassured the House in the previous debate, we are committed to improving the way in which the criminal justice system handles sexual offence cases. We want to ensure that Section 41 functions effectively and strikes a balance. In response to the noble Baroness, Lady Jones of Moulsecoomb, it is a balance. We have to balance the victim’s right to privacy with making sure that the defendant receives a fair trial. That is what Section 41 is trying to do. As I have said in previous groups, however, I am very much alive to the need to make sure that victims are properly looked after in the criminal justice system.

We have asked the Law Commission to review the use of a wide range of evidence, including how evidence relating to previous sexual behaviour is used in court. That review is now under way—it launched formally on 17 December last year. Its terms of reference specifically cover the two areas of this amendment:

“whether the complainant should be a party to the application to admit evidence of their sexual history; and … whether a right of appeal should be introduced in relation to decisions under section 41”.

The Law Commission will obviously look at that with its usual care. A background paper and consultation are to be published this year, and we expect final recommendations next year, so we are certainly alive to that. But I suggest that, given where we are and the work of the Law Commission, we should not introduce the amendments to the present Bill.

Lastly, I turn to Amendment 107C, which would require each police force to have a RASSO unit. As our end-to-end review of the handling of rape showed, rape is a distinctive crime that requires a specialised approach. We are investing a large sum of money in Operation Soteria, and, in the rape review progress update, we have also committed to a programme of its expansion to a further 14 police force areas and their corresponding CPS areas. We are doing that work in addition to our wider investment in policing. We have proposed a total police funding settlement of £16.9 billion in 2022-23, which is an increase of up to £1.1 billion from last year.

The amendment also highlights the importance of appropriate and effective support for victims. Importantly, we are investing £27 million in the recruitment of independent sexual violence advisers—ISVAs—which we have discussed on a number of occasions. We know that they work: they play a vital role in supporting victims to remain engaged in the system and in stopping that awful phrase, “victim attrition”, which is terrible. There is a real victim behind each use of that phrase.

As I said on previous groups, we have launched our consultation on the victims Bill. However, ultimately, on the deployment of officers, I have to defer to individual chief constables: forces in different areas may legitimately take different views on the precise allocation of their resources. But we want to ensure that forces drive progress, while allowing them the flexibility that our policing system affords them.

I hope that I have responded on each of the amendments. Although I appreciate that a few points of difference between us will remain, I hope that the noble Lord will none the less be able to withdraw the amendment.

Photo of Lord Ponsonby of Shulbrede Lord Ponsonby of Shulbrede Shadow Spokesperson (Justice), Shadow Spokesperson (Home Affairs) 5:45 pm, 12th January 2022

My Lords, I thank the noble Lord for his assurances, and I beg leave to withdraw my amendment.

Amendment 104B withdrawn.

Amendment 104C not moved.