Baroness Chakrabarti:

Moved by Baroness Chakrabarti

425: After Clause 166, insert the following new Clause—“Service as a police officer: aggravating factor in criminal sentencing(1) On sentencing for any criminal offence, current or past service as a police officer shall be presumed to be an aggravating factor.(2) Where in a particular case, a court decides against any such aggravation justifying an increased penalty, it shall state the reasons for this decision.”Member’s explanatory statementThis new clause and another in the name of Baroness Chakrabarti relate to the criminal sentencing of serving or retired police officers. This Amendment creates a rebuttable presumption that such service should be an aggravating factor.

My Lords, I will rise slowly to allow for the appropriate exodus.

I have Amendments 425 and 426 in this group. They are probing amendments only, and therefore I do not propose to detain the Committee for too long, not least as these follow the excellent previous debate, for which I commend the noble Lord, Lord Black of Brentwood, and all the participants. Many of the sentiments in that discussion informed my thinking behind these two amendments.

Let me explain. Like other noble Lords, I have a huge amount of respect for the overwhelming Majority of police officers in this country, perhaps best exemplified by those who keep us safe outside and inside this building, and indeed those former officers who contribute so ably to debates in your Lordships’ House. Unfortunately, that is not the whole story of policing.

I reflect that this is my 30th year of engagement in criminal justice policy. In January 1996, I entered the Home Office as a young lawyer. Subsequently, I was at the National Council for Civil Liberties, and for the last nine and a bit years I have been in your Lordships’ House. In every one of those years, there has been at least one criminal justice measure—sometimes more than one—to increase police power, year on year, whether it be stop and search powers, anti-terror powers, public order powers and so on. We continue to debate all those, and the same is true of the Bill before this Committee. Very rarely in those three decades have I seen equivalent measures aimed at constraining police power, or indeed at attempting to renew and rebuild vital public confidence when things go wrong. These probing amendments are here to provide a little balance and to remind the Committee that public confidence in policing is not where it needs to be.

I am sorry to say this, but that is in no small part due to the major scandals of recent years. It is now nearly five years since Sarah Everard was kidnapped, raped and murdered by a serving police officer, and now nearly three years since our esteemed colleague, the noble Baroness, Lady Casey of Blackstock, wrote her report for the Metropolitan Police. Yet, as I say, I rarely see a new measure before the House suggesting ways of improving confidence, so that is what these two probing amendments are aimed at addressing.

The first, Amendment 425, suggests that service as a police officer—that is, present or past service—should be an aggravating factor in criminal sentencing. If I were to venture a guess as to what might be in my noble friend the Minister’s advice and speaking note—I see that he is checking—it would be that this amendment is unnecessary because sentences would already, of course, take into account service as a police officer. I am not talking about the brave and wonderful police officers we were discussing in the previous group, but about those who have been convicted, and, in particular, convicted of very serious offences, including the gravest ones, such as Wayne Couzens.

The speaking note might also say that the amendment is unnecessary because sentencers already have the discretion to treat this as an aggravating factor. Of course, it would be quite correct in that respect. However, it is already a criminal offence to assault anyone, but we make special additional provision for assaulting an emergency worker or a police officer. We do that—some would say, benignly—to improve public confidence and the confidence of those vital workers; some would say it is slightly performative. None the less, that is one side of the equation. The other side of the equation is that the public should understand that it is a very serious matter, and with power comes responsibility. For a serving or past officer to behave as some have done in recent years is a very serious matter and must be viewed as such if we believe in the rule of law and we are to have public confidence in policing. In subsection (2) of the new Clause in Amendment 425, it is suggested that a court deciding that aggravation is not required in a particular sentence for a police officer would explain why.

Amendment 426 goes further, as this is about police pensions. One of the many things that will rankle with the public when a police officer is convicted of a very serious offence is the idea that they and their family might continue to enjoy the public sector pension, despite that terrible abuse of trust that led to the serious criminal offence. This probing amendment suggests that a Crown Court, when sentencing an officer, should have the power to order forfeiture of the employer contribution to the pension. The current position is that there can be forfeiture, of course, and it is only the employer contribution, but that is not really done in public but at the discretion of the PCC or other police authority and does not come, therefore, with the same public understanding that would come with a decision by a Crown Court judge. In an infamous case like that of Sarah Everard’s murderer or another serious case of abuse of power, it would arguably be better for public confidence if the Crown Court judge in that sentencing hearing could say, “And, having considered all the pleas in mitigation and the other submissions before me, the public contribution to your pension shall be forfeit. You may of course appeal that in the normal way, as you appeal any part of a Crown Court sentence”.

That is the thinking behind these two amendments—they are probing only. It is right that there are appropriate criminal offences and police powers that move with the times—in the last debate, we heard eloquently argued the need to shield brave police officers. That is all well and good, but the other side of the equation is that with power comes responsibility. When a sacred and vital trust is breached—not just as in the Everard case, but what about that “Panorama” documentary of last autumn, “Undercover in the Police”, set in a London police station, where we saw the levels of racism, misogyny, bullying and physical abuse of power that our colleague, the noble Baroness, Lady Casey, warned about?—confidence needs to be rebuilt, because it will serve none of us, including most police officers, for public confidence to be undermined in that way. I beg to move.

My Lords, I am never sure what a probing Amendment means, because surely all our amendments are probing, and I certainly would support both these amendments on Report, because they are actually crucial. Although I am vastly older than the noble Baroness, Lady Chakrabarti, I, too, have been working on this for quite a long time, but only for two and a half decades. The number of police officers who have, in some way, been found guilty of a crime and yet still get their police pensions and all the benefits of having been a police officer for some years, however badly it has ended, really is annoying.

Police officers do a very difficult job—I am very appreciative of that and understand the problems—and most do it well. But when someone abuses that role, the damage is much greater for public trust. It is wider than any single case. Trust in policing depends on people believing that no one is above the law. In the previous debate the noble Baroness, Lady Cash, made the point that the rule of law is for us all, and I will bring that issue up again when we get to the public whatsit Bill, on—

Accountability.

I thank the noble Baroness very much.

At the moment the rule of law is not for us all, as exemplified by the way we treat police in some cases. On pensions, why do the Government prefer decisions about pension forfeiture to be taken later behind closed doors rather than in open court, where reasons are given and can be tested on appeal? If a judge has heard all the evidence in a criminal case involving a police officer, and has seen the harm done and the abuse of trust, why do the Government think that a judge should have no say at all over a publicly funded police pension?

I ask this out of long experience. We have been told for decades now that existing systems are enough or that reforms are coming, and clearly that is not happening. I personally would like to see, instead of these little baby steps, a bold, straightforward move towards the kind of accountability that people can see and understand. Time and again, in cases of serious police misconduct, the consequences remain unclear and invisible to the public.

From the public’s point of view, the current system makes very little sense. Some serious criminal convictions of police officers fall outside the pensions rule altogether, simply because they do not meet a narrow legal definition. I would be grateful if the Minister could explain why judges who hear the evidence are excluded and why transparency in court is still seen as a step too far.

When this Labour Government got elected, I really hoped for some changes in the way that we apply a sense of fairness to the whole of our legal system. Quite honestly, they have disappointed me very badly. They are no better than this side of the Chamber. As the noble Baroness, Lady Chakrabarti, said, we have been waiting a long time for this, and a Labour Government should really put it right.

My Lords, both these amendments seek to sharpen the consequences for police officers, serving or retired, who commit criminal offences. High-profile cases and damning reports have exposed toxic elements of policing culture, eroding public trust. Yet the vast Majority of police officers do an excellent job and are let down by a small minority. Recent cases highlight public expectations that the law should rightly demand higher standards of personal integrity from police officers and, at the very least, adherence to the law of the land.

There is also no question but that public confidence in policing’s ability to police its own is fragile. While the latest figures from the Independent Office for Police Conduct show record high complaints, over a quarter of the public lack confidence in the organisation itself, most cannot even describe what it does, and nearly half distrust the police complaints system. That should give us pause for thought, because it is really quite serious.

When officers are seen to evade scrutiny or punishment, trust erodes further. This has major repercussions for those doing the job properly, because many members of the public then say, “Well, they’re all the same, aren’t they?” I fully accept the noble Baroness’s argument that more can and should be done.

Amendment 425 would create a rebuttable presumption that police service can be treated as an aggravating factor in sentencing. This rightly recognises the unique betrayal of public trust when those entrusted to uphold the law instead break it. However, I have a concern that in marginal cases, being a police officer could flip from helping to reduce the sentence, as somebody who has served the public, to becoming an automatic burden.

Amendment 426 goes further, granting courts the power to forfeit a sizeable chunk of an offender’s police pension. This could serve as a highly effective deterrent. However, I worry on two counts. First, it could discourage quality recruits, who fear that one mistake could destroy their and their family’s lifetime financial security. Secondly, it could entail taking away pension benefits that the officer has already earned fairly during what were presumably good years of service.

These amendments definitely merit serious consideration, but they also focus on symptoms rather than causes. From these Benches, we want to see the Government go further to strengthen the front line of police misconduct systems, with vetting that catches risks early and misconduct processes that are swift, transparent and trusted. Only then will sentencing reforms such as this land with any amount of force.

My Lords, Amendments 425 and 426 in the name of the noble Baroness, Lady Chakrabarti, relate to the criminal sentencing of serving or retired police officers. We on this side of the Committee cannot support them. These amendments are well intentioned, and we understand where the noble Baroness is coming from, but we believe they will cause more problems than the issues they are trying to address. I do not see, for example, that they would have had any impact on the behaviour of the officer in the Everard murder or in other cases of police misconduct.

Amendment 425 would create a rebuttable presumption that current or former police officers should have their service as a police officer treated as an aggravating factor when being sentenced for a criminal offence. We, like the noble Baroness, believe that police officers should be held to a high standard. Abuses of power should be treated with the utmost seriousness, but the amendment is far too wide and risks creating unintended outcomes. Sentencing should, as far as is reasonably possible, be a specific exercise based on the facts of the case before the court.

At present, the courts already have the ability to treat an abusive position of trust or authority as an aggravating factor where relevant. This will allow for judges to distinguish between offences that may have been connected to an individual’s role as a police officer and those that are completely independent of it. They should be dealt with on a case-by-case basis. Amendment 425 would apply regardless of whether the offence had any connection to police service, resulting in the inclusion of offences that were wholly unconnected to an officer’s professional role and committed perhaps many years after the officer had retired or left the force.

Introducing such a provision, even as a rebuttable presumption, risks introducing an unnecessary and inappropriate counterproductive legal complexity. In practice, judges reflect on the defendant’s status and whether it is an aggravating factor. Furthermore, it would require the court to judge a person by their job and quite possibly what they were doing many years before. It could be 20 years before the commission of the offence and wholly unconnected with their service.

Similarly, we have significant concerns about Amendment 426. Pensions are deferred pay. They have been earned by service. I appreciate that issues arise where, while being so paid, the officer embarks on perhaps corrupt behaviour, but the police service will have to think about how it addresses that. It requires careful consideration of terms of service. If the police service wishes to include appropriate terms to address that sort of conduct, it is a matter for careful and balanced drafting, not for the relative sledgehammer—I mean that politely—proposed here. Once money has been earned and transferred to the relevant individual, that money is now their property. This amendment would undermine that principle and give the courts the power to deprive someone of money that may be entirely unrelated to the crime of which they are being convicted. It is potentially a large mandatory fine on top of any other sentence. We all know that police officers who go to prison face undoubted unpleasantness and very often have to be offered solitary confinement and protection. That in itself is a very substantial penalty.

We agree with the noble Baroness, Lady Doocey, about the risks of these amendments and the steps that should equally be taken to improve the way in which the police service operates. But the forfeiture of pension rights for just any criminal offence, especially in cases distinct from instances of abuse of police powers, could lead to disproportionate unintended consequences. We recognise that maintaining public confidence in policing is essential, but that confidence must be upheld through clear standards and conviction when things go wrong, then more effective punishment if needed; and, if necessary, by revision of the terms of service, but done by a matter of the terms of service, not by this rather blunt instrument. We look to the Minister for assurances on those points.

Relevant penalties must be imposed on the basis of conduct, not just status, so we cannot support the amendments. The context in which the sentence is passed is the fact of service; that would be relevant, but it is relevant only if that particular case comes before the court.

My noble friend Lady Chakrabarti indicated that this was a probing Amendment and I am grateful for the opportunity to discuss these points.

I start by saying to the noble Baronesses, Lady Jones of Moulsecoomb and Lady Doocey, and my noble friend that this Labour Government are committed to making improvements in police standards. That is why we have introduced significant reforms to strengthen police vetting and to act on misconduct and performance systems. This includes placing a duty on officers to hold and maintain vetting clearances and introducing a presumption of dismissal for proven gross misconduct. There are a number of measures in the Bill, but also in secondary legislation—and I trail the white paper on police reform, shortly to be produced—that will show that this Labour Government, to answer the noble Baroness’s point, are committed to upholding standards and improving them, particularly in the wake of the murder of Sarah Everard and the conviction of police officers for simply heinous crimes. I put that on the record as a starting point because, with due respect, I do not accept the noble Baroness’s position that we are not doing anything on these matters.

I also support my noble friend’s broader position on strengthening accountability in the police service. I wish to see that happen but, in probing these amendments, I ask her to consider whether they are proportionate, fair or necessary. I take up and share some of the points that the noble Lord, Lord Sandhurst, made in his contribution.

Amendment 425 would make an individual’s current or former service as a police officer a statutory aggravating factor when sentencing them for any criminal offence. It is right that an officer’s service should be an aggravating factor where an offence has been committed in connection with their service, particularly where officers have abused their position of trust. It cannot be right that individuals should be sentenced more harshly than other members of the public based on their occupation or, as the noble Lord, Lord Sandhurst, said, their former occupation. That is why the existing sentencing guidelines issued by the Sentencing Council must be followed by the courts, unless it is not in the interest of justice to do so, and make clear that abuse of power or position is an aggravating factor in sentencing. My noble friend knows that, because she mentioned it in her contribution. Introducing a statutory provision is therefore unnecessary. I submit to my noble friend that there is no gap in law or practice, and it would be neither fair nor proportionate to presume that a person’s current or previous service as a police officer was an aggravating factor in all cases.

Amendment 426 would give powers to the Crown Court to make decisions on the forfeiture of police officers’ pensions where an officer has been convicted of a criminal offence. As I have mentioned already, I am sympathetic to strengthening accountability in the police service, but responsibility for the forfeiture of a police officer’s pension is already set out in legislation. I know that my noble friend knows this, because she referred to it. In most cases, the matter is in the hands of elected police and crime commissioners. Police and crime commissioners are not only the pension supervising authority for police officers but the locally elected officials designed to represent the public and local communities. I therefore contend to my noble friend that they are clearly well positioned to consider the impact of such offending on public confidence in policing.

However, it is also worth mentioning to the Committee that the Home Secretary has a role in this matter. Pension forfeiture cannot happen without a conviction having been first certified by the Home Secretary as being gravely injurious to the interests of the state or liable to lead to serious loss of confidence. While the Crown Court has an existing role as the relevant appeal body following a forfeiture decision, the process of considering whether to pursue and apply for pension forfeiture is not, I suggest, properly the responsibility of the criminal courts, especially given that they have an appeal role in that process and that there is no mechanism in the amendment that would allow the Home Secretary to make submissions to the Crown Court on public interest factors that should be considered.

I know that my noble friend has probed in this amendment, and I know she knows this because she referenced it in her speech: those two mechanisms are available. We are trying to look at the key issue, which in my view is sorting out vetting issues and standards and making sure that we maintain those standards. That is what we are doing in the Bill, and in the White Paper that will shortly be before the House of Commons and the House of Lords. I therefore ask my noble friend, at least on this occasion, to withdraw her amendment.

I did not hear an answer to my question about why a judge should not hear about pension forfeiture in an open court. The forfeiting of pensions does happen, but it happens outside the court in closed rooms, and we never really understand the reasons given. Why not allow it to happen in court in front of a judge?

As I just said, it can be done in court in front of a judge on appeal. The decisions are taken by the police and crime commissioner and/or the Home Secretary, who is accountable for those matters, and the Government intend to hold to that position. It may not satisfy the noble Baroness, as ever, but I look forward to her support on the key issue, which is improving vetting to make sure that we do not have those significant bad apples in the police force in the first place. That is our key focus in the white paper and the measures in the Bill.

I am grateful to all noble Lords who have taken part in this short debate. I said these were probing amendments because I thought it was important that we discussed in Committee on this Bill the issues of police standards, discipline and public confidence, as well as all the other measures that we are constantly debating to do with additional police powers. I am so grateful.

I say gently to the noble Lord, Lord Sandhurst, that in his response to the pension forfeiture provision he spoke as if this was not already an established principle. I think the noble Baroness, Lady Jones, got it right when she said the issue here is about how you will inspire most public confidence when forfeiture proceedings are happening. Would there not be some benefit in this being part of the sentence and therefore being given greater publicity because it has been announced in an open Crown Court? I think that is really the only difference between us.

I am grasping at any straw of how we might try to improve confidence in policing in this country, where, year on year, this is not happening. I was particularly grateful to my noble friend the Minister for, in a sense, responding to the provocation of the noble Baroness, Lady Jones, to talk about what he plans with the white paper and so on. I am sure we all look forward to engaging with all that. For the moment, though, I beg leave to withdraw my Amendment.

Amendment 425 withdrawn.

Amendment 426 not moved.