Mr. Shaw, you are on your own. I normally ask our witnesses to identify themselves, but I do not think we need to ask you to do that because you are, of course, the prisons and probation ombudsman, and we welcome you here this afternoon. I am sorry that we kept you waiting for a few minutes, but we had a certain amount of private business to conduct before we went public.
1 Mr. Edward Garnier (Harborough):
Thank you for coming, Mr. Shaw. I shall be as brief as possible, not least because your session ends at 1.40 pm.
Not surprisingly, I want to concentrate on part 4 of the Bill, which deals with your successor appointment. It is not clear from the Bill whether the commissioner for offender management and prisons will be the same office holder as you, or a separate office.
Stephen Shaw: Both I and my office welcome the Bill’s proposals. The office has been calling for them since it was established in 1994, and there has been a Government commitment going back the best part of 10 years. We welcome the proposals and believe that they will give us the proper authority to conduct our business, which is of considerable public importance and significance. We believe that insofar as the Bill codifies and in certain respects extends our powers, it is appropriate. It gives the office and the post holder equivalent authority with the chief inspector of prisons. When these proposals were first considered three or four years ago, I argued strongly that the post holder should benefit from having a royal warrant, not least to denote equivalent status with the chief inspector. But when it comes to practical issues, will it make a great deal of difference to how we conduct our business? The candid answer is no, it will not.
The clause sets out what we are entitled to do, how we go about our business and how we conclude our investigations, which in large part reflect our existing practice. It codifies that, puts it in a public form and reflects the important work that we do, which includes work that is part of the state’s compliance with article 2 of the European convention on human rights. However, in day-to-day terms it will not make a great deal of difference to how we conduct our business.
Although I very much welcome the proposals, which are largely right, it would be proper to share with the Committee the issue of whether the Bill as drafted provides the appropriate degree of independence for the commissioner, a statutory ombudsman. It is a principle going back to the first one in Sweden nearly 200 years ago, and a core international standard of what an ombudsman is, that they should not operate within the system but be freestanding and conspicuously independent of the services that they oversee. Under the Bill as drafted, the commissioner will be operating within a structure determined by the Secretary of State—in that sense, the ombudsman will be a departmental ombudsman.
My view, which I have shared with colleagues in the Ministry of Justice and elsewhere, is that it would be better if the commissioner was accountable directly to Parliament rather than to the Secretary of State and the Ministry. That would have two or three important benefits. First, the post holder would be more conspicuously independent; secondly—it may appear paradoxical but I believe it be true—the post holder would be more accountable were he or she responsible to and examined directly by Parliament. The third advantage, assuming that the measure goes through, is that it will be in place for many years to come, as no Government, of any party, will want to return to it in a hurry, so what is set up must stand the test of time.
Would the courts consider the ombudsman or commissioner to be sufficiently independent under the Bill as it stands to withstand challenges under article 2? At the moment perhaps they would, but if we consider how the law is likely to develop, an ombudsman operating under a departmental umbrella is likely to be challenged about the degree of independence he or she enjoys. In a recent case, the Parole Board was found wanting on exactly those grounds. The Ministry of Justice intends to appeal against that judgment and we shall have to wait for the outcome, but it seems to me that that is the way that the law is going. There are about half a dozen references in the Bill to what the Secretary of State may do or pay for, and it would be better if they were replaced by a reference to Parliament itself.
I am glad you mentioned that particular aspect of the Bill, as one of my concerns is that from clause 37 onwards, investigations are requested by the Secretary of State. “Request” is an interesting word to use in this context; it seems to be a dressed-up way of saying things that he can tell the commissioner to do. If you look at clause 37, you will see that the Secretary of State will be entitled to
“request the Commissioner to investigate any matter mentioned in” various subsections of the clause. Essentially, the Bill specifies what the Secretary of State may order the commissioner to do.
I was interested to hear what you said about the nature of the office. The commissioner will have similar powers to a High Court judge, but not the independence. On geographical matters, do you work from an office within the Ministry of Justice or Home Office,or do you have a self-standing building?
Stephen Shaw: I share a building with the inspectorates of probation, prisons and constabulary, and the secretariat that serves the independent monitoring boards attached to every prison, so my office is at some stage removed from the MOJ and Home Office. Technically, it is in a Home Office building, but that might change.
Constitutionally, would you think it more appropriate if you were not—I use this language loosely—an employee of a Government Department but, like a judge, simply appointed by the Government or the Crown?
Stephen Shaw: Certainly I would have to think about the first part of what you said about being like a judge. Do I think it constitutionally more proper for the post holder to be outside the MOJ and responsible to Parliament? Yes, I do. Indeed, I have made that point before.
May I say something about clause 37, which is entitled,
“Investigations requested by the Secretary of State”?
It might be useful for the Committee to know that I originally asked for the clause some three or four years ago when the measures were first considered. It would enable the commissioner to conduct, in effect, ad hoc inquiries of the kind that I am able to do. I have done some of my most important work in public life conducting a number of ad hoc inquiries on matters such as immigration, probation and prisons, and I wanted the possibility of such inquiries to continue, so argued for the clause. I believe that it is now thought that if the courts decided that article 2 compliant investigations were required following a significant number of near-deaths or near-suicides in prisons, they could be carried out under clause 37.
I share your view, or I perhaps advance my own, that clause 37 subsections (7) and (10), which talk about the “duty” of the commissioner to do what the Secretary of State requests and about “directions” from the Secretary of State, are inappropriate measures to apply to a statutory ombudsman.
Do you think that the commissioner’s remit will be wide enough in terms of premises? From my own experience, and from briefings and so on with outside bodies, I have concerns about the fact that you cannot look at every form of involuntary custody. I accept that the military system is excluded—it is under a different set-up—but is the remit sufficient to cover all local authority involuntary accommodation?
Stephen Shaw: No, it is not. My office would like to see an extension of the remit on complaints in respect of children held in secure training centres. Under the current sentencing framework, two children could be convicted of the same offence and receive the same sentence, but one might go to a secure training centre and the other to a young offender institution. The child in the young offender institution would come within my current and future statutory remit, but the child in the training centre would not come under my remit regarding complaints. I do not think that I am betraying any secret by saying that the Youth Justice Board, my office and the MOJ have been looking at that. My own view is that the remit should be extended to secure training centres, and I am hopeful that that will be agreed during the passage of the Bill.
When it comes to local authority secure accommodation, you have two potential anomalies. The anomaly at the moment is that, as I said, two children convicted of the same offence could receive the same sentence and they could go to a secure training centre or to a young offender institution, but of three children convicted of the same offence and receiving the same sentence, one could end up in a local authority secure home. You could argue that that is an anomaly: should not the same protections apply?
The trouble with that is it runs into the other potential anomaly, which is that many children in local authority care in the same home are not offenders and would not have access to me. My understanding is that children in the local authority accommodation have other routes through which they can complain. I personally am content that that is the case and that it would create more of an anomaly if just a small number of those children were able to come to me and the rest not.
Perhaps it could be sorted out by increasing your remit to cover those children in local authority care by order of a criminal court as opposed to a family court or—
Stephen Shaw: I understand that argument, which in the past the office has been sympathetic to. The counter-argument is that you are running a small home for children and you have two different systems, depending on how the children have ended up in the home. I am not sure that that is particularly user-friendly for the child.
I can see that.
The Corporate Manslaughter and Corporate Homicide Act 2007 has been the subject of quite heated discussion in Parliament over the last year or so, particularly in relation to the application of that law to custodial and police premises. It is in, but it is a case of “Oh Lord, make me perfect, but not yet.” It does not apply to the Prison Service and police cells for three years.
Forgetting the party politics of this, as a dispassionate but clearly interested observer, would it assist you or the commissioner if the Act applied to custodial premises immediately, not least because it seems from the clauses of the Bill that we are concerned with now that sometimes you may have to defer or at least have the power to defer an investigation until criminal proceedings are concluded? I can see a situation in which, at the moment, with the three-year delay, you might be investigating something that ought more properly to be investigated by the police as opposed to the Health and Safety Executive, and things may happen or not happen, documents may or may not disappear and witnesses may or may not have statements taken from them, which could inhibit either your processes or the Crown Prosecution Service processes in arriving at justice.
Stephen Shaw: Just by way of preface, the office has no view and expressed no public view on corporate manslaughter. My personal view is that I welcome the extension, when it comes, to prisons and police cells. We have a protocol under my current arrangements, a memorandum of understanding with the Association of Chief Police Officers, such that where there is a parallel police investigation—perhaps because a death has occurred and the police suspect homicide or assisted suicide or, indeed, if other health and safety or other charges are possible—under the terms of the memorandum we endeavour to ensure that we do nothing that might prejudice a prosecution.
The way in which the Bill is drafted is, I think, superior to the memorandum that I currently have, in that it makes it clear that it is my responsibility, or my successor’s responsibility, to decide what is or is not appropriate in the particular circumstances. Bearing in mind that my investigations and those of my office into deaths in custody are part of the state’s compliance with article 2, I think that the way in which the Bill is presented will enable me rather better to conduct an investigation in parallel with something that the police or the CPS are pursuing than perhaps is the case at the moment.
Stephen Shaw: When I am conducting death-in-custody investigations, I have not conducted any hearings. I am separately conducting an article 2 compliant investigation into a near-death of a man who tried to kill himself just after Christmas 2001, where as part of the article 2 compliant procedure I have held four days of public hearings and four further days are scheduled for November.
But do you think that the system set out in this part of the Bill provides the commissioner with sufficient flexibility to hold either open or private court hearings or strictly investigative procedures?
Stephen Shaw: Yes, my own feeling is that, if clause 37 is to be used as the basis for a significant number of near-death or near-suicide investigations, it would be sensible in due course to revisit what is actually said there, because the procedures will be different. Whereas in a death-in-custody investigation there will be an inquest—that is the public examination—where there is a near-death or near-suicide, by definition there will not be an inquest. By definition, to be article 2 compliant I have at the very least to consider whether the evidence should be presented in public and, in large part, that will mean a public hearing or hearings.
I think that there is sufficient flexibility in the legislation, but it might be better to ensure that what was being done was entirely article 2 compliant to make more specific what the powers and responsibilities of the postholder are.
I have just one question, Mr. Shaw. The provisions of part 4 for placing the commissioner on a statutory basis are deemed to be cost-neutral and your budget in 2005-06 was £5.7 million. Given the discussion that you have had about the possible extension of your role and given comments, for example, from Mr. Garnier, about some of the aspects of potential extension and/or other costs, have you made any assessment of the cost implications of any of the proposed extensions in terms of budgetary and resource implications for you and your current budget and staff?
Stephen Shaw: We are not talking about a lot of children and children, in the main, do not use formalised complaints mechanisms. It depends how proactive we would want the office to be, but we are probably talking about no more than two or three additional staff, so this is a modest sum.
When it comes to near-deaths and near-suicides, as I say, I envisage operating under clause 37, where the sums potentially are very much larger, because these are article 2 compliant investigations where the individual and his or her family must be properly engaged—that almost certainly means engaged with the assistance of lawyers—and the potential costs there are in the millions, not tens of thousands.
Could you give an indication to the Committee, from your assessment of recent history, as to how many potential cases that might be in the course of a year?
Stephen Shaw: Well, three cases have come before the courts. There is the case of D, where I am conducting the article 2 compliant investigation; there is a case known as SP, where the Ministry of Justice and lawyers representing SP have agreed that article 2 is invoked and an investigation is to take place; and the case of JL, which is the most recent case, where the court appears to be saying that the fact of a near-death occurring may trigger a need for an independent investigation. If it appears that it could be argued that the state has some responsibility, and in the prison context it would not be hard to argue that that trigger had been reached, in those cases you would need to have what the court called the full D process, involving hearings and lawyers. The numbers are difficult to predict, but there are many self-inflicted injuries in prison. There are between 150 and 200 cases a year of people being resuscitated. If each one of those cases were to trigger a D-type inquiry, we are talking about substantial sums of public money.
The Prison Reform Trust has mentioned a possible extension to cover safeguard cells and potentially, court cells. Have you heard the view on your modus operandi with regard to those issues?
Stephen Shaw: The trust may have misunderstood the current arrangement and what would be the arrangement for the commissioner. As I understand it, if somebody were in a police cell under Operation Safeguard and were to lose their life, that would be the responsibility of the Independent Police Complaints Commission. If somebody is a prisoner and dies under escort or in a court cell, that is, under my current remit, my responsibility, and I believe that that would continue once the Bill was enacted.
How much consultation did you have on the details of the provisions? You mentioned that you were involved some years ago when the ideas came along. I want to ask you in particular about there not being a duty to consult you in terms of change of remit.
Stephen Shaw: I cannot recall a discussion on that particular clause. We had a lot of involvement two or three years ago in the drawing up of the clauses that are before you, so I have no criticism whatsoever of the degree of consultation and involvement. Manifestly, I have not yet persuaded colleagues in the Ministry of Justice about the degree of independence that I called for in answering the questions from Mr. Garnier, but I have no criticism of the process.
In respect of there being no requirement upon the Secretary of State to consult before altering the remit, I suspect that that is simply because it seems to anybody inconceivable that such an action would be taken without some form of consultation. I would not die in a ditch if it was argued that there should be a measure in the Bill to ensure that; I am not going to quarrel with that. I think that it is right and proper that I should be consulted, but whether it is necessary for the Bill to reflect that is a different matter.
You set out your views about greater independence. In your experience thus far, have you ever felt that your operational independence or what you do has been compromised by the current arrangements? Secondly, do you believe that were you to have greater technical independence, given that the arrangement is to be cost neutral, do you not think that that might divert some of your resources into overheads, away from actually doing the job?
Stephen Shaw: I will answer those points in the order in which you presented them. I want to make it absolutely clear to everybody present that, in the eight years that I have been ombudsman, there has been no improper interference with any of my decision-making. Indeed, I hope that I would have been bold enough to have resigned had there been so. That is not to say that prisoners, when I have made an adverse adjudication, have not said, “Well who is it, Mr. Shaw, who appointed you?” and “Who is it, Mr. Shaw, who pays you?” When I have to answer that it was the Secretary of State who appointed me and it is the same people up in Bootle who pay the rest of the Home Office and the Ministry of Justice who pay me, the prisoner tends to turn around and say, “Aha.” So, there is no doubt that the legitimacy of my decision-making, in the eyes of the complainant, would be enhanced with greater independence.
On the issue of whether greater day-to-day independence would mean a greater cost, I believe that the ability to decide where best I recruit, where best I am housed and what IT system I have—the ability to shop around—ought to mean a better deal for the taxpayer in the long run.
I am not sure that I have to say to the Government Whip that it is a sin. I am more flexible and amenable than to think that having held that important office—
And forgetting, yes.
Again, I welcome Gareth Crossman, the policy director of Liberty, and thank him for coming to give evidence to the Committee. We are grateful to you for finding time to come and answer questions about the Bill. I call Mr. Harry Cohen, the Member for Leyton and Wanstead in outer London, to start the questioning.
I have a number of questions, Mr. Crossman, so perhaps we can treat them in a bit of a quick-fire way, because of time constraints. One aspect of the Bill gives the courts greater discretion over tariffs for indeterminate sentences, particularly for exceptionally serious sentences. What are your concerns about indeterminate sentences and the parts of the Bill that relate to them? Also, the Government have talked about taking into account an offender’s level of risk, although they have not spelled out in detail what the mechanism for that would be. Would that ameliorate some of your concerns?
Gareth Crossman: Yes, certainly. Before I answer that, I must say from Liberty’s perspective that we do not generally get into sentencing issues, but there are many organisations that do. We commented mainly on the original White Paper, because the issue at hand was confidence in the criminal justice system, which we think is a reasonable subject for us to comment on. However, our comments on this matter have been brief and we do not claim it to be our particular area of interest or expertise.
We have had concerns about tariffs. I have mentioned confidence in the criminal justice system. Part of the problem that we identified about what is proposed—taking away the automatic reduction of a sentence by half for a certain type of new offence that fits into the category that is beyond serious and into the extremely serious range—is that it will create a sort of blip in sentence lengths. At some point, you have the cut-off point up to which all sentences must be reduced by half. Then, presumably, there is a range of sentences—remember that we are still talking about extremely serious offences across the board—where because that requirement to reduce the sentence by half has been removed, you would expect judges automatically to lift the amount of sentence, so you suddenly have an extra hierarchy of seriousness and increased sentence length. At a time when there is a lot of public concern, which is often expressed, that they do not understand how sentencing works, adding that extra layer might be problematic. As I said, the issue is not one of significant principle for us. We asked whether it would actually do good or harm to confidence in the criminal justice system.
I suggest that members of the Committee lean forward when asking their questions so that they make use of our sophisticated amplification system not only to help me in my dotage, but because it is important that those in the Public Gallery can hear clearly both the question and the answer. Because he is speaking close to his microphone, Mr. Crossman is certainly coming across loud and clear.
Gareth Crossman: I can assure you that there are parts of the Bill about which we express much stronger views, but this is an area about which we have made the observation that, to remove powers from the Parole Board must imply that there is a perceived problem with the way in which it operates and that it is necessary for the Executive to take back some powers. As a general matter of principle, in individual cases the role of the Executive should be kept to an absolute minimum and independent bodies, whether the judiciary or the Parole Board, should have as much input as possible. I am not sure what the policy drivers are to make such a decision, but there might be good reasons for doing so. I do not know but, if by doing so, public confidence in the parole system is undermined, it should be approached with caution.
Hopefully, I will catch an area that is covered by one of your significant objections. What do you feel about the extension of adult conditional cautioning and extending the scheme to 16 and 17-year-olds?
Gareth Crossman: We do not have a problem in principle with conditional cautions, but with conditional cautioning that is intended to be punitive. Cautioning has long been considered to be the way in which people can be kept out of the criminal justice system so they do not have to go to court and are given—albeit a clichÃ(c)—one last chance not to get on to the treadmill of the criminal justice system. Having practised as a criminal lawyer, I can say that, when once a person is in there, it is difficult sometimes to get out of it.
Cautions have their role, as do conditional cautions. When legislation specifies that the purpose of cautioning can be punitive, that is a cause for concern. The punitive element of sentencing is for judicial determination; it is not something that the police should be doing. Their role is not to punish. That was what happened when the conditional cautioning scheme was rolled out originally. It has now been extended, so our concern is about the punitive element. Hopefully, the intention is to use cautions in respect of younger people as a good thing, but I feel more strongly about making them punitive.
Let me move on. I think that you will have a view of what I am about to say now. Part of the Bill has a cap on a two-year limitation on compensation payable to the victims of miscarriages of justice. How do you feel about that?
Gareth Crossman: What was interesting about the way that the matter was described was that it seemed to be part of the ongoing rebalancing of the criminal justice debate that has been taking place for many years. The explanatory notes indicated the need to put the compensation payable to victims of miscarriages of justice on an equivalent basis to that paid to people who had suffered injury as a result of criminal injury. I cannot see why the two situations necessarily match up. Having a two-year cap because that matches up with what happens in cases where people have been injured during crimes, has no logic other than it being the same number. It is the same with the way a cap is imposed on criminal injury compensation.
A more appropriate approach would be to view this in the same way as one might approach civil litigation. Of course there should be a limitation period. The idea that someone can turn around many years hence and say, “I want to claim for the loss resulting from this wrongful conviction,” is incorrect, just as it would be for someone who turns around many years after a civil action and says, “I wish to claim.” That is why we have limitation periods. A six-year limitation period as in civil cases would be appropriate. The imposition of a cap, albeit a high cap which I am sure would not often be reached, seems odd when the basis of loss is not one that would generally be capped. Generally the upper limit would be determined by looking at all the factors involved. However, as I said, half a million pounds—which I believe is the cap—is a high amount, so it is not a point that we would press particularly hard.
Let us move on to the criminalisation of extreme pornography. You expressed concerns that the legislation could be drawn too wide, and indeed the Bill includes, as part of extreme pornography, the phrase that I referred to on Second Reading, “appears to” which seems very wide. Do you feel that that is a wide definition? What are your views?
Gareth Crossman: Let me begin by saying that we have no issue with the principle of the offence, especially in situations when people are involved in activity and there is coercion involved. There is a gap in the criminal law, especially if someone does not fall within the realms of the Obscene Publications Act 1964, which deals with possession with intent to sell for gain.
One of my original points was that usually a criminal offence is created because there is a need to do so. What was surprising was that the original White Paper said that there was no evidence to show a greater degree of criminality as a consequence of people seeing this type of material. I understand that further research has now been done that might indicate a causal link. I have not seen it. However, that is the starting point. I was surprised that the offence was being created without some evidence behind it, but I do not take issue with the principle behind it.
The problem is with the breadth of the offence. For a number of years, there has been a legislative tendency to draft offences extremely broadly. The Sexual Offences Act 2003, which has some similarities, created a range of extremely broad offences that one would not object to in principle but which create concern as to the number of people who might be criminalised. There was a tendency to say, “It’s okay, we’ll require some extra authorisation before prosecution can take place, be it from the Director of Public Prosecutions or the Attorney-General.” That in itself is not grounds for overbroad criminalisation. It is a bar against improper prosecution, but technically if you commit a crime, you commit a crime, whether or not you are then prosecuted.
I am sorry, I realise that you asked me to be brief and I have given a lengthy answer. My concern about this offence, is that the range of activity that will be covered could include activities, such as sadomasochistic practices, that people might find peculiar but that frankly do not harm anyone apart from those who participate in them. I know that a number of people have expressed extremely strong concerns about this, and we share those concerns. There will be people who cause no harm to anyone else, who engage in private activities or who possess material that clearly involves acting and where there is no suggestion of any coercion. That falls within the breadth of the offence. The defences that accompany the offence do not seem to be particularly relevant. They seem to revolve around someone not being aware that they are possessing material. There needs to be some limitation. I would base that around the idea of knowledge of consent or actual consent of those who have partaken in the material.
That is interesting, but let me take you further on this. I raised the issue on Second Reading. You did not quite get to the point that it is not just the activity itself happening for real that is covered, but also when it “appears to”. That would presumably be ritualised or, as you say, acted out. I think that Ministers would probably argue that not having “appears to” would open up a huge loophole. How would you cover not just the act, but a bit beyond that—or would you not go beyond the act?
Gareth Crossman: I think that you are right and have identified a real problem. What illustrated this issue to me was the idea that “appears to” clearly covers things that are not real such as acting and representation. Because it was realised that by putting that wording in a lot of certified material in films could fall into the definition, it was necessary to introduce a defence that the film might be certified, but if an excerpt is taken from a certified film it becomes an offence again. This offence ties itself up in knots somewhat because it is trying to identify the correct parameters of the criminal law by setting them so broadly that little loopholes have to be created that are, frankly, not particularly impressive.
The example I gave in the briefing was the film “Casino Royale”, in which there are sections that may well fall into the definition of the offence if taken as cuts on their own. For anyone who is wondering which bits I am talking about, they are the torture scenes. That film was certified as suitable for 12-year-old children to see when accompanied by an adult. That is the danger of having an offence that is based partly on the need to criminalise and partly on a subjective concept of what is moral and proper. As soon as you start doing that, you get into grey areas about where the law should end.
I have two more questions, one of which is very brief. I am not sure if this is an important question for you. In the enforcement of foreign trial proceedings by UK courts, the defendant can say that he did not get a fair trial abroad. However, as far as I can gather, under the Bill he will lose the right to do so. Does Liberty have any feelings about that?
Let me come to my last question, which is a much broader one, but important. Do you feel that aspects of the Bill risk criminalising vulnerable people, such as children and people with mental ill-health, and if so, what are those aspects?
Gareth Crossman: Yes, although it is not necessarily criminalisation. The parts of the Bill that concern me are when it gets into the rather grey area of where the criminal law starts and ends. The provisions to remove people from properties for antisocial behaviour, unlike the provisions in relation to crack houses where this legislation has been introduced, will presumably involve families. There will therefore be children who are moved from one place to another, who will be relocated and re-housed. I was very concerned—I am sure that we will come on to this part in more detail later—by the lack of any accompanying provisions to ensure that appropriate provision is made for families that are removed.
I would say something similar about the special immigration status provisions, which will clearly lead to the families of those who are given special immigration status having conditions placed upon them as a consequence—that is what the Bill says. As far as I can see, that flies directly in the face of what the children’s convention says is the appropriate treatment of children. Therefore, for us, sometimes, it is not so much about what the criminal law says; it is about the line between what is punitive and what impacts on those who have done nothing wrong themselves. They are dealt with by the law because of the actions of their families.
I want to clarify, Sir Nicholas, the point that was made, because I think that it will be an important matter of debate. Our colleague from Liberty, Mr. Crossman, has just mentioned that, for example, scenes from the film “Casino Royale” could be outlawed under this legislation. I would like just to press him on what basis he makes that assertion, given that, for example, in clause 64 we define quite clearly in subsection (6) what an extreme image is. Also, clause 65 relates to matters concerning classified films and so on. I am interested to know on what basis he makes that assertion, because it will be a matter of public debate around these issues.
Gareth Crossman: To quote clause 64(6)(b):
“An “extreme image” is...an act which results in or appears to result...in serious injury to a person’s anus, breasts or genitals”.
I do not know if you have seen “Casino Royale”, but there is a section where there is quite severe damage being caused to someone’s genitals. On the point of classification, as I said, there is an exemption, if it is a classified film, but that exemption does not apply if you take an excerpt from that film.
But again, clause 64(5) says:
“for the purpose of sexual arousal”.
From the Government’s perspective, we are trying to define what is, under clause 64(6), an extreme image, which is one that is made for the purpose solely of sexual arousal in terms of the film.
There may be aspects within film classification that examine those issues and the British Board of Film Classification will make a determination on that. However, the focus of the legislation is to ensure that we outlaw the downloading of extreme pornography that is undertaken for purposes of sexual arousal, which actually causes—or appears to cause—damage to a person’s life, or indeed, under clause 64(6), other aspects that I will not go into in the Committee today. I was interested in the definition, from Liberty’s perspective, of whether this is a real objection or, in a sense, a technical objection that needs later clarification, or whether the objection is specifically on a freedom of speech or freedom of information basis, in relation to the type of material that we intend to cover.
Gareth Crossman: It is both of the first two. It includes the technical aspect, as to how it will be determined that the purpose of an extraction of the type that we are talking about might be for purposes of sexual arousal. More broadly, there is concern over the idea of criminalising activity where you are dealing with something that, in itself, is perfectly legal—a film that has been censored and given a 12 certificate. A part might be extracted for the purpose of sexual arousal and the possession of that extract becomes a crime. It is where you feel comfortable about the limits of the criminal law, when no one else is being affected. Obviously, no actors were harmed in the making of this film. So it is about where you define the limits of where the appropriate criminalisation is to be.
This is difficult, because, as I said at the beginning, we do not have an issue with the creation of this offence. The difficulty arises when you are dealing, effectively, with offences involving morality; it is very difficult to draw a specific line where the criminal law should begin and where it should finish. This is the Government’s offence. We will obviously try to make suggestions as to where we think that that line should be appropriately drawn, and we do not pretend that it is easy. We will try to make positive suggestions, but frankly we would be uncomfortable with the idea of something being criminal simply because it is going to cause sexual arousal, if no other criminality is being alleged.
But is it not more difficult than that? If one looks at clause 64(3), there is a huge degree of uncertainty and subjectivity. It provides:
“if it appears to have been produced solely or principally for the purpose of sexual arousal.”
Who is to decide whether it so “appears”? Is it the judge, the policeman, the viewer or the maker? Have you any idea what the Government are thinking about, or what they appear to be thinking about?
Gareth Crossman: No, and I thank you very much, Mr. Garnier, for succinctly putting one of my other concerns into a far more condensed version than I did. The problem is, indeed, that this is extremely subjective. When making a subjective determination on criminality, some jurors might think, “Oh, that is horrible stuff. I do not like that. They must be guilty”, when dealing with acts that are not causing harm to other people—obviously parts of the Bill will cover areas where people are being hurt, and that has rightly been criminalised—and it will be very difficult for a judicial or jury determination to be consistent about who is convicted and who is acquitted.
The provisions arise on the basis of the horrific Jane Longhurst killing, which I understand involved accessing websites containing rape scenes. In relation to the issues that you have raised about the definitions of “extreme image”, do you think that there is a need to have a definition of rape within the offence? There may be a question as to whether an image of rape is covered by the offence.
Gareth Crossman: It becomes very difficult to talk about the way in which this offence is defined, when referring to rape. If you are talking about a depiction of rape in a film, that is something that will have occurred in many classified films, but it is not rape because it is acted. If it is actually rape, that is non-consensual; someone has been coerced into something against their will. Therefore it is appropriate to make it a criminal offence to possess such material. That is why the element of coercion is so important in how you can properly draw the offence.
The depiction of rape may constitute an extreme image, but it must fit within the rest of the clause to become an offence. Until we understand what clause 64(3) means, we are not much further forward. I can think of any number of extreme images which are disgusting and unattractive to look at, but the prosecution will have to prove that an image appears to some unknown person to have been produced solely or principally for the purposes of sexual arousal.
Gareth Crossman: With regard to the defences, it is not that the individual takes on the burden of proof, but there is a presumption, if they are in possession of the material that falls within the definition of the offence, that they have to prove that one of the defences applies. In some ways, a strict liability offence is in position which will result in a conviction unless you can establish the defences. That is not uncommon in criminal law. If I was to say where my concerns with the offence lie, it has less to do with the way in which the defences are constructed, and more with the very broad nature of what is criminal.
I do not want to engage in an undergraduate level of conversation when you are well beyond that. Looking at the defences in clause 66(2), it is a defence for the person charged with the offence under clause 64 to show that he
“had not seen the image concerned and did not know, nor had any cause to suspect, it to be an extreme pornographic image”.
To go back to clause 64(2) and (3), there is a direct problem there because we have the “appears to” under clause 64(3), yet there is a different requirement under clause 66(2), in that the defendant has to show that it did not appear to him that it was not—
Gareth Crossman: That is a very good point. I think that that reinforces the concern that I have about how to get consistency of conviction from the interpretation of what the offence is. It is extremely unclear. I have looked at this several times—although, obviously not in the detail that I should have done—but every time that I look at it, it seems to raise more questions about what or will not be criminal. Unfortunately, when these matters arise, the Government’s response in recent years has just been to make it as broad and criminal as possible, and then not to prosecute unnecessarily, which is okay by them. I maintain that that is not the correct approach to criminal law.
I am not sure that I should have given way to the Minister in the first place, but it was a useful exchange, and I concur entirely with the last statement. Can I move on to two areas that were not within the original draft of the Bill? The first is the incitement to have a public case. I do not think that Liberty is going to be particularly helpful to any of the parties represented in the Committee, because your view is that there should be no further speech offences. Is that correct?
Gareth Crossman: We are saying that there should be a moratorium on further speech offences, further incitement offences and further speech offences generally. Let me explain why. The development of speech offending has been somewhat piecemeal. Since it first became a criminal offence to incite someone to racial hatred in 1965, to the current version of the offence in the Public Order Act 1986, to the extension to incitements to racial and religious hatred in 2006, incitement to hate—which is not a crime in itself—has been criminalised for certain things. Other speech laws include encouragement to terrorism, and, where no intent is required, a recklessness test. Several things arise from that rather piecemeal approach. One of them is that it seems that there is no logical reason why people would choose to offer the protection of the criminal law to a certain type of speech incitement offence, but not to others. Why, for example, will it now be an offence to incite someone to homophobic hatred, but if I incite someone to hatred on the basis of their sex or disability, it will not be an offence? Why? There is no illogical reason for that. The justification seems to be that there has not been a case made for it, but the case for introducing an offence might be made by those who lobby most effectively to introduce that offence.
Secondly, there is an efficacy issue. Do those offences work? How many prosecutions do we have? I think that Lord Basham said that there had been 79 prosecutions since 1987 for incitement to racial hatred. That works out at about four a year, so the legislation is not used a lot. Maybe the chilling effect is greater. I remember that when I was looking into racial and religious hatred, I looked at the British National party website, which was not a politically pleasant experience. It referred to the trial taking place at the time of two members of the British National party for racial hatred. The BNP website said—this will not be word-perfect, but was the sentiment—that they must ensure that they gain maximum publicity and membership from the publicity that the trial generates. Possibly, those who originally created the offence of incitement to racial hatred did not intend that it should provide succour, promotion and membership opportunities for members of extreme right-wing parties.
Therefore, we are saying, “do not approach a piecemeal extension”, because there is no reason why one could not continue to extend it so that any area of law that deals with a legitimate discrimination could also be covered by incitement law. Rather, the impact of current laws should be looked at and reviewed to see whether they are working.
Thank you. I understand that advice. If we were, however, to ignore that advice and have a crime of that sort, I wonder if you have given any consideration to what sort of balance should be struck between the wish to outlaw a particular model of behaviour and the wish to protect free speech.
Gareth Crossman: Ideally, you should adopt the model that was used for the Racial and Religious Hatred Act 2006, which included the need for intent and the specific protection to cover free expression. That would be the logical approach to take. The difficulty is that, while one can understand—if one wants to introduce those offences—why those extra protections might be needed, there is no logic to it because religious incitement has a distinct nature, it is not immutable in the way that other things are and there is no logic with which to approach the religious model. The more obvious choice is the racial model, but that does not have the protections of free speech that the religious model has. That is why there needs to be a review of how those laws operate.
One ties oneself up a bit; having introduced thorough concerns with certain provisions to protect them, when we make another law a couple of years later, ought we to apply those protections or to look back at an earlier model? Unless one is taking an overarching view of the need and efficacy of the legislation, that is what will happen.
If I may, I will move on to the changes to the requirements for authorities of the multi-agency public protection arrangements to provide information on sexual offenders—those were not originally in the Bill and were not really in the frame until amendments were published recently. I do not know whether you have had a chance to look at the amendments and have a view on them.
Gareth Crossman: I did look at them, although only very recently in the past few days or so. I looked at them with interest because there have been some concerns about how, on the one hand, to provide the proper protection that is necessary for children to be kept safe and, on the other, to address all of the problems that can arise from the notification process. When members of the Government went to the States, they saw what was being applied there and felt concerned that that level of public awareness might prove counterproductive. One aspect of the current model is that the police know where people are and those people know that the police know that; if they were hounded out of their homes, no one would know where they would be and they might be a greater danger. Therefore, I looked at that issue with interest and do not see how the clause, as it is drafted, would work. There are major problems in the drafting.
If I may, I shall explain where I think problems might arise. It states that there is a presumption that the responsible authority should disclose information about the relevant previous convictions of the offender to the particular member of the public. That would create a presumption that one would have to inform someone, but in relation to whom would that presumption apply? Which member of the public would that be? Also, the person who would be given that information would not have asked for it but would be given it whether or not they wanted it. They are told whatever level of information is considered appropriate. A further problem arises from the fact that conditions can be imposed upon that person—who may never have asked for that information—about what they may do with it. What conditions are they? How will they be enforced? Will breaching them involve some sort of civil liability? You cannot enforce a civil liability on somebody who has been given information, whether or not they wanted it, and is then told that they cannot use it.
A more practical thing that struck me is that if you are one of these people who is given this information it puts you in an intolerable position if you are then given conditions. If you are given a certain level of information about a person, because they pose a risk and it is necessary to protect children, but you are then told that there are conditions upon this information and you cannot pass it on to certain people, what happens if a child is hurt in that area and it is found out that you had that information? You are not a public figure. You do not have the backing of an official role. You are just a person who has been given a piece of information. That is an intolerable position to put individuals in. It is fine when you are talking about people who are performing roles, such as head teachers of schools, because there is a clear delineation about what they can and cannot do. The way that this is drafted will put people in very difficult positions and I do not see quite how it will be enforced.
Going back to the proposed hatred offence, we have heard evidence that there is a gap in the law, particularly in relation to vile anti-gay rap music, which does not lead to an offence and prosecution. Could we have your view on whether that gap is plugged at all by the Serious Crime Bill and the new offence of intentionally encouraging or assisting crime and encouraging or assisting crime believing that an offence will be committed? Do you think that it is an offence that is properly dealt with in discrimination legislation or is there a need for new legislation?
Gareth Crossman: It is absolutely right to say there is a gap in the criminal law. Everywhere where there is an absence of incitement law, there will be a gap. You will say things and because that is not an area that has been made subject to the criminal law, that is a gap that you could plug. But then there are other gaps which presumably you should have to plug as well.
Gareth Crossman: Let us remember that if you incite someone to commit any offence whatsoever, you are committing an offence in common law. That has been the case for 200 years. So if you incite someone to go out and kill somebody because they are gay and if you incite violence against somebody because they are gay, you are committing an offence.
Gareth Crossman: There is a range of criminal law that can be applied to those who incite those who commit crimes. We are talking about incitement to hatred. There may be many things that you wish to do against those who sing foul, homophobic nonsense. You may wish not to allow them into the country if they are from overseas because you believe that they are not conducive to the public good. If you run a venue where they are booked to play, you may decide that you and, as far as you are concerned, everyone else should not be giving them a platform. What we are talking about is the criminal law and whether it is a crime to incite someone to hate.
I will come back to the same point that I have made before. If we are determining that some areas are suitable for that to be an offence, then unless you can show a logical reason why you should not extend it to any other area where somebody could be discriminated against, then it has to be piecemeal and slapdash. Let me make this absolutely clear. I am not saying—please let me make this absolutely clear—and nor is Liberty saying, “Do away with all incitement to hate law. Do away with all speech offences.” What we are saying is that the way that the law is developing at the moment is undesirable.
In that respect, to turn it the other way round, if we were to consider a law against incitement to hatred, full stop, what do you think Liberty’s view would be of that?
Gareth Crossman: I think it is likely that we would feel compelled to object to a law that criminalises incitement to hatred. I do not think anyone would dispute that it is appropriate that the law places limitations on free speech. That is clearly the proportionality model that is incorporated in the Human Rights Act and it has been recognised through interpretation of the common law as well. But before you can place a restriction, you have to be satisfied of various things. First, you have to be satisfied that it is for a legitimate purpose, which it may be—it might be a legitimate purpose because it is going to prevent crime or is for the public good—but you also have to establish that it is proportionate and not excessive.
I would have to say that, just as it is not a crime for me to hate anybody, if I go around inciting people to hate others and I am committing a crime, I would be very pushed to say that that would be a proportionate act from the perspective of criminal law.
It may be that we are in the area of legal development where we are trying to recognise an identified group with concerns for their own safety and reconcile that with our desire not to pass useless laws or simply to repeat laws that already exist. But do you think that it would be possible to frame a law that made it illegal—a crime—intentionally to do or say things with the intention of arousing fear or concern such that that group of people would be subjected to physical or mental harm?
I agree with you, but if one added the magic words, “on the basis of their presumed or actual sexual orientation”, would you agree that, although we may not be doing much good, we are not doing any harm?
Gareth Crossman: Correct me if I am wrong, but if you are talking about the approach that is taken under the Crime and Disorder Act 1998, it is more about taking activity that is already criminal and aggravating it because of the intention behind it. I do not see that as being particularly problematic. If you commit an assault, it is aggravated if you do it for racial or religious motivation. I can see that the same thing could easily apply to an assault based on homophobic reasons. But that is a very different thing, because you are dealing with something that is already in the realm of criminality. I think concern arises when you take something that is not criminal at all and bring it into the criminal law on the basis of a discrimination-based argument.
Could I take you to the Hansard report of Tuesday’s sitting? In columns 74 and 75 you will see that, in response to a question that I asked out of total ignorance, because I had no idea what Mr. Summerskill had in mind, he recited a long list of nasty things that apparently rap artists sing. Mr. Summerskill broadly says that these are unpleasant, nasty things that cause gay people to live in fear and that these sorts of lyrics incite hatred against gay people. I am sure that you are familiar with these arguments, but how do you respond to his arguments in relation to those sorts of lyrics? You can imagine what they are, we do not need to have them read out all over again, it was wonderful enough as it was.
Gareth Crossman: I think that it is the issue of specificity; inciting hatred towards particular individuals, that is different from a sort of general incitement to hatred against a particular group of people that contains many people and is non-specific. I know that Stonewall has been making this case for a number of years and it is keen that the offence be introduced. You look at lyrics such as this and you can imagine why people might feel that it is unacceptable to have people calling themselves musicians coming out with this. That is fine, but we are talking about the criminal law. Without the specificity of an individual offence being committed against a particular individual, it is difficult to use a broad brush of criminality.
If you know that there is an offence of incitement to hatred against homosexuals, it is unlikely that unless you are a dancehall artist, for example, you will be prosecuted. These are likely to be high-profile prosecutions. The chilling impact of knowing that there is such an offence, in the same way as knowing that there is one of incitement to encouragement of terrorism or incitement to racial hatred, is that it might make you feel that you are being persecuted, but it is likely that the people who will be prosecuted most will be black dancehall artists. I imagine from the examples that we have been given that they are the people who would be targeted.
Sorry, I lost my thread somewhat. The point that I am trying to make is that what is deeply unpleasant is not necessarily a subject for the criminal law, and if you cannot be specific about those against whom you are inciting an act of actual violence or other crime, you are getting into a grey area of what should be criminal.
Gareth Crossman: Yes, indeed—it is eloquently put. Over 3,000 new criminal offences have been created since 1997. A lot of those have not been put into effect; some of the offences get used very rarely. When properly used, legislation, especially the criminal law, will target a gap in the criminal law where there is a proportionate and necessary need to provide protection.
Which seems to be what Mr. Summerskill said in answer to me at the bottom of the page, he said very generously to me:
“You make a very good point. I cannot comment on what Shami Chakrabarti chooses to say. The reality is that in the human rights framework in which many people feel we now live, there are many sensible people who say that that, nevertheless, does not mean that everyone has human rights to do or say whatever they wish. Human rights should be applied proportionately and with responsibility and we do not accept that where there are robust protections for some communities, there should not be similar protections for others where there is clear evidence. I have cited some evidence and the Chairman asked me to desist precisely because I did not want to take you through the entire volume,”— that is the column that we looked at a moment ago—
“But we have cited very clear examples of what we regard as transparent evidence that there is an issue.”——[Official Report, Criminal Justice and Immigration Public Bill Committee, 16 October 2007; c. 83, Q190.]
It seems that there is potential for agreement between the line that Liberty takes and the line that Stonewall takes. Assuming that you are prepared to accept that Stonewall thinks that there is a need for a law, the bridge seems to be the issue of proportionality and possibly intent.
Gareth Crossman: Proportionality is the test by which we determine whether something is properly criminal. Where we differ is that we try and take an overarching view; we do not draw a distinction and we do not try to create a hierarchy of rights. The danger is that this approach to legislation is creating hierarchies of benefits. There are some groups who are deemed worthy of protection and others who are not.
When the Commission for Equality and Human Rights is just about to come into operation and is supposed to take an overarching view of the idea of equalities and rights for all, I would be concerned about the message that it sends out for certain rights to be protected under the criminal law in a way that others are not. Yes, we agree about proportionality, but we also say that there must be consistency.
If we are to have a law at all, which is entirely up to the Government because they run the show, is it your view that such a law must include the concept of intention in the mind of the defendant before it is put into law?
Gareth Crossman: I cannot give you an absolute answer. Before you take away the element of intent and, by definition, introduce an element of recklessness, you would have to be very, very careful about what you are doing. In recent times there has not been a speech offence based on recklessness that Liberty has supported. We have opposed incitement to encouragement of terrorism for various reasons, but mainly because by introducing a recklessness test you are criminalising careless or reckless speech.
I guess it depends what you mean by recklessness. Recklessness often means a refusal to consider the consequences, which to the reasonable man might be obvious.
Gareth Crossman: That is the difference between subjective and objective—or rather the court’s interpretation is. Many eminent lawyers spoke in debates on the Floor of the House about encouragement to terrorism, and discussed the parameters of the law and exactly where recklessness started and finished. But outside the courtroom and Parliament people have not got a clue where the parameters of the law are. All they will know is that there is an offence of encouragement of terrorism or incitement to homophobic hatred. They will not know exactly where that law begins and finishes and what interpretation we have put on it.
There are two dangers in that situation: first, there is the chilling effect that people will just shut up rather than be in breach of the law; and. secondly, that people will feel they are not getting protections that others have or that they are being particularly targeted in a way that other groups are not, and that can cause resentment.
Race relations legislation is the longest standing anti-hatred legislation we have to judge against. Given your earlier remarks about the number of prosecutions and the publicity that extremist groups have gained from such prosecutions, is it Liberty’s view that the offence of inciting people to racial hatred has improved race relations in this country, or do you think that they would have improved in any event?
Gareth Crossman: That is an impossible question for an organisation such as Liberty to answer; we do not do empirical, statistical research into these issues. The Commission for Racial Equality might be in a far better position than we are. Based on the number of prosecutions there have been, I would not say that it has been a particularly used offence; I think that of the 79 prosecutions there were 44 convictions. I hope that community and race relations have improved considerably since the 1960s; I think that that has happened for a range of reasons, but whether the existence of an offence of incitement to racial hatred is one of them I could not say.
This is probably an appropriate point at which to end this part of our sitting this afternoon. On behalf of the Committee, I thank you, Gareth Crossman, for answering our questions so openly, and for being so honest when you felt that the question was beyond the brief that you have in coming before us on behalf of Liberty. Thank you very much, you have been very helpful.
I ask colleagues informally, are you still comfortable? Would you like a short break? Our other witnesses are here, but I think that they would understand it if we took a 10 minute break.
I think that I hold some honorary office with one of the local government associations, and they certainly have not told me that I have been kicked off, but I suspect that I am no longer in an honorary position.
I was going to ask our witnesses to identify themselves, but I do not think that that is necessary as Les Lawrence is clearly Les Lawrence and Ann Lucas is clearly Ann Lucas. On behalf of the Committee I thank you for coming before us as witnesses to help us with the Bill, not least from the point of view of those that serve in local government. David Burrowes, who, by the way, is a solicitor, is going to start.
Les Lawrence: We welcome the Bill in terms of the fact that it is a wide-ranging and largely an enabling one. It is a framework that, in the sense in which it is intended, we welcome very much. We certainly welcome the emphasis placed on community-based interventions of young offenders. We are very supportive of the youth rehabilitation order and the way in which the Bill strikes a balance between punishment and protection, reform and rehabilitation.
While we recognise that being radical is not always something that comes easily to legislation, we would have liked to have seen a shift towards what we call prevention and early intervention, which is much the intent of children’s services or young people’s services. That is illustrated by the integrated youth support service and so on. We should also like to see an emphasis on greater partnership working, responsibilities and concepts of duties to co-operate between the youth justice system and the children’s trust arrangements that exist in all local authorities.
However, we have a slight caveat in that, although the Bill is enabling, the devil is always in the detail of the statutory instruments and guidance. The Local Government Association would obviously be keen to engage with the Department in the formulation of guidance to ensure that it is of benefit to both the Government and local authorities in general.
In relation to the practical working of the youth rehabilitation order, the bottom line as far as you are concerned is that it is deliverable. Let us consider if from the perspective of the point of sentence. In the delivery of measures of rehabilitation for young people and to place them in appropriate places, funding is often the barrier. For the funding and the place to be matched up with the time that the sentence is ordered is often something that does not happen. It is not obtainable. What assurance can you give that the orders specified in the Bill are deliverable?
Les Lawrence: Where we see an advantage in the youth rehabilitation order is that, in the current system—certainly previously—there has been an increase in the number of young offenders who are subject to custodial sentences. It is now recognised that the medium or long-term benefit of those custodial sentences is reducing. The degree of reoffending among young people who have been in the custodial system is much higher than even within the adult arena.
The youth rehabilitation order is a mechanism whereby we can begin to refocus the intent behind community sentencing. It must be structured in such a way that it brings a benefit back either to the community or to the offender such that we could then begin to link it with the concepts of restorative justice. We must make certain that both the victim, either an individual or the community, and the perpetrator get a benefit back that brings about a long-term benefit in terms of the youth justice system as a whole.
That is exampled by the differential costs. Here, I can agree that the order is deliverable. I am sure that colleagues round the table know that it costs roughly £24,500 per six months to keep a young person in a custodial situation. However, if community sentencing is used in the most effective form and it is linked with a YRO, that would cut the cost to about £6,500 for the same period. That shift in resources will not happen overnight. Any change in the system will take a significant time to evolve, but a shift in existing resources will, in our view, bring about a significant change in the understanding and acceptance of the youth justice system, and a whole panoply of benefits to not only the offender, but the victim or the subject of the offender’s misbehaviour.
With the involvement of the police; the youth offending service; in some cases the NHS, because often the youngsters have mental health issues; the child and adolescent mental health services and local government as the lead in facilitating the implementation of these orders in conjunction with the courts, I think not only that the measures will be deliverable, but that the long-term benefits will be there for all to see.
Thank you very much. I think that that is quite helpful because we appreciate that the part of the country that you come from may in some way influence some of the views that you express, although we understand that you are here to represent the Local Government Association.
Dealing with the specific requirements within that order, there are local authority resident requirements, drug treatment requirements, education requirements and, separately, fostering requirements. All of those inevitably impact on resources. All of those orders are dependent on recommendations from the youth offending team and the social worker of a local authority, for example, to be deliverable. All of those things are very much within the province of the local authorities. The provision sounds good, but I question whether it is likely to happen on the ground.
It would be useful to hear, in terms of your members association, whether you feel that the capacity is presently there to deliver those types of requirement. To take one example, adolescent drug and alcohol services are bereft across the country with one residential drug rehabilitation centre in the whole country. Can these requirements be delivered?
Les Lawrence: I would like to convince you that it is not only possible, but that it can be achieved in reality. Over the last three or four years, local government has had to deliver services in a much more integrated way than has been the case, dare I say it, for central Government. Yesterday, in a speech to the adults and children conference in Birmingham, the Secretary of State for Children, Schools and Families indicated, interestingly, that the Government are beginning to understand, at long last, that the way in which local government works in a joined-up manner is something that they need to do.
If you look at the type of arrangements that exist on the ground, such as local area agreements, which link the drug and alcohol element to teenage pregnancies and in turn to the NHS through the primary care trusts, you begin to see that the building blocks are already in place to enable the intent behind the rehabilitation orders to be fulfilled. Often these things will utilise many of the same people who assist in providing the enforcement, revocation and amendment of rehabilitation orders. I hope that I can begin to convince you that this is an intent that we fully support.
Referral orders and, in a sense, the conditional cautions inevitably have an impact on the youth offending team. Do you have any comments about their role in those orders, which is within the remit of the local authority, and about their ability to deliver?
Les Lawrence: Yes, if those come into being, they can be used as part of an early intervention and preventive strategy. The situations that give rise to the conditions under which such a caution is given can be addressed early enough to turn around the challenging circumstances that these young people often face. What tends to be the case at the moment is that, once they get into the youth offending system, every time they are ratcheted up by one incident and before long they are in a custodial situation. Often you will find that young people are being incarcerated—I will use that phrase—for offences that adults would never be incarcerated for. That is one of the drawbacks of the current process. If you have these extra tools in the box, as it were, you can ally that, through partnership working, with much more intervention and with preventive strategies, using outreach workers, or, as you rightly say, workers within the youth offending service, to bring about a stop at that point, and also offer the assistance and the help to address the issues that have given rise to the circumstances in which the young person has found themselves. That is beneficial, not only to the young person but to the wider community as well.
Ann Lucas: It is often a lot cheaper. Through the local strategic partnerships in Coventry, we have different youth activities, with some bad boys and girls, especially bad girls, funnily enough, because if you get a bad girl you will find that you usually have six or seven bad boys somewhere quite close. For a very small amount of money, you can actually get them to think about what they want to do in their community and, if they have something to do that is not sport, because not all girls want to do sport, for £2,000 or £3,000 you can get a group off the street. We got a group of 19 off the street and the crime figures went down immensely.
Let us return to the youth rehabilitation orders, because there is general realisation that, if they work as the Government intend, they will save money and be more effective, which is the most important part. I just worry that there is not yet an equivalent provision across the country of some of the elements that will be required for this measure. Local authorities vary enormously in what they can provide and what they do provide. I am a little surprised that the LGA is quite so bullish about the prospects of putting those building blocks in place in the very near future.
Les Lawrence: We are as supportive as we are because we are running at the moment a project called Children in Trouble and we are running four pilot schemes in different parts of the country. It is in conjunction with the Magistrates Association, the police and the Howard League for Penal Reform, and it is testing a range of options with custody in the extreme. That is simply because it is felt that, given the number of youngsters who are ending up in custodial situations, there may be a way of providing much earlier support, earlier intervention and working with the young people to see whether we can facilitate a change. That is change not only in the way that people view young people but change within the communities from which many of these youngsters come, and also to overcome what I call the intergenerational perception of older people of young people and of young people of older people.
Those pilot schemes have started. We have the National Foundation for Educational Research involved, who will undertake the evaluation. That evaluation will start early in the new year. So, in a sense, we have begun to get evidence that this type of arrangement—not taking the youngsters into custodial situations—is beneficial. The magistrates and the police are both supportive, there is collective working and the extra element within the pilot projects is the third sector. We have organisations like the NSPCC and NCH, the children’s charity, working with us as well and that is making for quite an interesting, collective coming together of various groups.
The final element that is beginning to come out of these projects, but which is also something that many local authorities have begun to use, is what I call peer-mentoring. Often, youngsters who were in the system themselves become the mentors of those who are entering the system. Because they are able to talk the talk and relate in a much more effective way, it adds an element to assist us in moving many youngsters away from becoming entrenched in the youth justice system.
The intensive fostering requirements are quite an innovative part of the Bill and I know that they have been trialled, but is it really possible to recruit the right sort of person to provide those, given the difficulties we know there are in getting foster parents for children in children’s services at the moment. Very specific care will be required. Is it possible to recruit enough people of the right calibre and attitude, in order to provide that across a wide scale, in your experience?
Les Lawrence: The type of foster carers that you have alluded to are essential. I will not hide from you that it will be difficult to recruit them, but the quality of foster carers in many local authorities is of a very high order, I would suggest. Local authorities are constantly seeking to recruit and refresh, and they offer opportunities for carers in a range of circumstances, not depending only on age, ethnicity, or challenge.
We sometimes undervalue those who take on the role and therefore it is incumbent on local authorities to ensure that they are never left on their own, they are fully supported, they have access to services in the round, and that, again, we work in partnership with other agencies who can often provide skilled support that the local authority cannot. I have referred to the third sector in many instances but the local authority has the lead role. If you adopt the principle that is enshrined within the Children Act about the statutory responsibility for vulnerable children and use that as your working principle, I think that we will be able to overcome the difficulties you allude to in terms of fostering.
To follow up on that point, 27 per cent. of people in custody have come from care, so clearly something is going wrong somewhere.
I draw your attention to an expression that is repeated throughout schedule 1—
“a court may not include” a fostering requirement in a youth rehabilitation order unless the court has been notified by the Secretary of State that arrangements for implementing such a requirement are available in the area of the local authority, which is to place the offender with a local authority foster parent. There are equivalent provisions for other remedies that the Bill seeks. Do you see the Secretary of State contacting each local authority area and saying, “Got anything I could make use of?” Or do you think there will be some form of planning? Do you think he will say, “I’m not actually going to do this for at least five years because there is not a local government authority in the country that has the additional cash that is required to do this”? How do you think this is going to work?
Les Lawrence: I think that there would be, or at least I trust there would be, an expectation that that responsibility would de facto be delegated to Government offices in the region to enable there to be arrangements that are either on an authority-by-authority basis or on an area basis. The courts certainly tend to cover more than one local authority. That type of arrangement would easily facilitate the intent behind the clause. In that sense, you will be able to find that a relationship would be built up, not only between local authorities, but with the court system. Given that there is now a move, again through local area agreements, to devolve roughly 10 per cent. of the Youth Justice Board’s funds, then you have the beginnings of the financial framework to facilitate the intent.
Ann Lucas: We normally work together across local government, as you have pointed out. These young people are not anonymous figures. They are young people who will be well known, both in the system and by all the statutory bodies and most of the voluntary bodies. There is the kernel there of getting together the right package for that young person.
I do not want to impugn your motives. I cannot believe that anybody, either in government or in local government, is looking to see this not work. Clearly, it is in the national interest for it to work, but I am puzzled about what you think will happen. Do you envisage sitting down in Birmingham and Coventry and reporting to the government office for the west Midlands or directly to the Ministry of Justice with a plan, so that the Secretary of State can then tell the courts that arrangements are sufficient in any given area for him to certify that these resources or systems are available? I am not sure where the initiative will come from. I know that you both represent very large authorities, but there will be smaller county authorities with smaller resources. I just do not have any idea about this. You are the experts, you tell me. What are the mechanics that will enable the Secretary of State to say, “It is there, so that court can do this”?
Les Lawrence: Yes, there will have to be a degree of planning. There is no doubt about that. You cannot do it in a laissez faire way. That is right. Each of the courts in each area will know pretty accurately the number of young people who are currently going through the system and are subject to the current arrangements. From that you can begin to determine the likely number that would be the subject of the referral orders if the legislation passes through. Over a period of time, you could then, as Ann has rightly said, working together within and across local authorities, begin to put in place the necessary resources to enable the fulfilment of the intent behind the legislation.
Les Lawrence: With the devolvement of the Youth Justice Board funding to which I referred—the first 10 per cent.—and if we can move from the current process of putting young people into custodial situations and to the rehabilitation framework, with the community sentencing options, we have quite a significant amount of resource that we can refocus. It will not happen overnight—I can see it taking anything between three and five years to evolve—so I am trying to paint you a picture that is not going happen as soon as the legislation is passed.
Ann Lucas: One of the things that we are going to need—it will be difficult—is an admission that we need not only to work together but to pool budgets. There will be a lot of virement of money necessary, and in my experience, that has been very difficult. It is always difficult to persuade one budget holder that if they are saving money, in actual fact, it should be passed over to another. Multi-area agreements may make a difference with the smaller authorities working together. You are right; they may have to do that, not just working with local area agreements, but with multi-area agreements.
Les Lawrence: People think of fostering care as fostering care, but it is not, because local authorities provide the generality of foster carers. However, the Youth Justice Board provides the money for what is known as intensive foster caring. Intensive foster caring is the basis of seeking to take young people out of the youth justice system. That was indicated in response to an earlier question about the orders.
Going back to the children in trouble project, we have specifically concentrated in north-east Hampshire on the use of intensive fostering. The Youth Justice Board is funding that, as it does right across the country. The early indication is that the number of places and the resources, working with the court and the other agencies, are sufficient at this point, as is the number of places that are required to match the number of available resources. Yes, there is support from local authorities, because of the other services that need to go with the fostering service, but thus far, albeit from early indications from that pilot, it seems that the resources—if used in an aligned and the proper way—are sufficient at present.
But you cannot put your hand on your heart and say that the best estimate is that a unitary authority is going to require additional resources of x million, and that a county authority will require resources of y million; or that on the basis of models that you have worked up, in the light of the Bill, you have put in bids to the Ministry of Justice for such-and-such; or that you need this amount of money, this number of people, and the following working group to do that. Has any detailed planning of that nature been done?
Les Lawrence: Not in the singularity of that area. With regard to the Local Government Association’s submission prior to the comprehensive spending review and the total new burdens under children’s services requirements, there was certainly a significant requirement to obtain additional funding. The requirements that we put forward had not been met in whole.
Les Lawrence: Yes, that is true, but I refer back to one of my original premises. If one looks at the amount of money that is currently spent by the Youth Justice Board wholly and totally on custodial arrangements, one will see—I repeat the figure— that it costs £24,500 for every six months that a youngster is in a custodial situation. The cost to take that same young person and provide the kind of intense community sentencing arrangements with a menu of options is £6,500. That is available at the present time and shows the disparity between the cost of one process and another. One could bring about a change so that existing resources were re-focused and re-targeted to enable that change, and I feel that the YRO is a mechanism for doing that. If representatives of the Youth Justice Board were here, they would send the same message.
Probably, across all the parties in the House of Commons there is no dispute that it is better not to send offenders of any age to prison if that can be avoided, because one could usually get a better result outside prison. Although the reoffending rate for some community sentences is quite high, even on the grounds of simple expense, it would be a good thing to do something better and cheaper outside of prison—there is no question that keeping youngsters in custody is expensive. Do you think that it would be sensible for the LGA to do some detailed accountancy work so that Parliament, let alone the Government, could understand what the LGA’s needs are so that it can do what the Government want it to do as a consequence of the Bill becoming an Act?
I say from the Chair, without bias or prejudice, that we will, no doubt, be in touch with all members of the Committee during the passage of this legislation. Three more members of the Committee have caught my eye: the hon. Member for Leyton and Wanstead, who will ask questions next, followed by the Under-Secretary of State for the Home Department, the hon. Member for Gedling, and the Under-Secretary of State for Justice, the hon. Member for Liverpool, Garston.
Thank you, Sir. Nicholas. When the Magistrates Association’s representatives were before us, they answered one question by saying that they would prefer what they called diversion and recall processes than youngsters coming to court at all. From my reading of the Bill, one cannot get a youth rehabilitation order without it going to court. Is that right and, if diversion is to be our priority, should not there be some sort of power for the local authority or teams in the area to do a sort of YRO or its equivalent? Could that be reflected in the legislation so that the order would not have to go to court?
Les Lawrence: That depends upon what you mean by, “going to court.” I will use the discussions that are ongoing within the Ministry of Justice on childcare proceedings and family courts, where much of the emphasis is on preparation and pre-assessment, and where the court intervention is based around what are called directions. Thereby, the judge is involved, but at a stage that is not in full public session. The directions are used to bring about a much quicker solution. I suggest that that is a good model to look at in terms of YROs. The court is still involved and judicial supremacy in this regard is exercised through the concept of directions. Therefore, because of the early work, the implication and implementation of such a process becomes much easier, better understood and, dare I say, less costly.
So that is an administrative process that really must go hand in hand with the Bill and YROs.
You said earlier that, presumably in several cases, young people can be incarcerated for offences for which an adult would not be. That is a pretty shocking state of affairs. Could you spell out again what brings that about? What sort of mechanism would stop that happening and cut into the cycle? Should we, for example, look again at the legislation, or is there another administrative process? Perhaps a youngster could appeal and say, “An adult would not go to prison here.” What could be done?
Les Lawrence: I know that it sounds simplistic, but I would mention the whole process of early intervention, working with families, early identification of youngsters who are in danger of getting into trouble, and the use of outreach services from the youth offending services. Those constructs and the passage of information between organisations are all elements that help to reduce the numbers of people going into the youth justice system.
Look at those local authorities which have a very good relationship with the police. I will use an example from my own local authority. We have police located in schools. They become part of the school population. Respect, confidence and a relationship build up between the young people and the policeman lodged in the school. That often happens through safer community partnerships. They have reduced the incidence of crime, not only within the immediate locality of the school at what they call “tipping out” time, but also in the wider community because respect for police and for their authority is greatly enhanced. That is irrespective of the nature of the communities within which those types of arrangements have been set up and it requires, as I say, the kind of partnership arrangements that Ann was referring to through strategic partnerships and similar measures.
Often youngsters who become disengaged from society are seen as dysfunctional. They get themselves into a cycle which leads them inevitably into a custodial situation. It can start from a caution, moving on to an antisocial behaviour order, then they break the ASBO and so on. Often, despite the best endeavours of staff, the provision made by youth offending institutions for education, training and the appropriate improvements in health and well-being, is not as conducive to supporting the rehabilitation of these young people as it should be. My final point—and it is a strange conundrum—is that the Children Act 2004 created the concept of a child or young person as being from 0 to 19. In the youth justice system, the cut off is at 18. At 18 a young person suddenly becomes an adult, but as far as the responsibility of a local authority under the Children Act goes, that person should be supported until the age of 19.
It is important for us centrally to get some sense of how local-authority led arrangements are going to work. Over the last few years there has been a greatly increased level of partnership working at local authorities and across agencies. From your experience at the Local Government Association, do you think that something like the local criminal justice boards or the children’s trust, or perhaps even the local safeguarding children boards are the best way of ensuring co-ordination? I heard what Ann Lucas said about pooling budgets, which always helps, but from your experience, what do you think will be the best local partnership arrangements for ensuring that those kinds of flexible, local arrangements work?
Ann Lucas: From my point of view, looking always in local authority areas, everybody looks to the local authority to lead. That is a statement of fact. That is what happens. One of the other things that it is important to say is that young people who are on the edge of coming into the criminal justice system do not want in all cases to be dealt with by the police or the courts or whatever. If they see the local authority as the lead, they are more likely to interact in a better way.
Les Lawrence: I would certainly suggest the children’s trust as the overarching strategic body, but in terms of the nature of the vulnerability of the young person, that would either stay within the trust arrangements or go into the safeguarding board, which has specific responsibility around very vulnerable young children. As the safeguarding board in every case has a close relationship with the trust arrangements—often the chairman of the safeguarding board is part of the trust arrangement—that linkage is already there. Equally, the youth justice arrangements within most local authorities have a direct link, either through the director of children’s services or one of the senior members serving on the children’s trust. So collectively you have all of the component parts and all of the authority and decision-making processes in place to enable this to be a natural vehicle for undertaking the role that you are suggesting.
Moving on to a couple of things that we have not mentioned so far, there are some important measures in the Bill and local authorities are crucial in trying to deal with the problems, working with the police and other agencies. I am thinking in particular of the new measures with respect to street workers, anti-social behaviour, the premises closure orders and so on. Could you share your thoughts on those measures and what use they will be in tackling some of the real issues on the street that your members of the Local Government Association will be involved with?
Ann Lucas: One of my tasks was to chair a task group called ahead of the game, which ran along side the Home Office’s “Paying the Price”, looking at prostitution. We focused solely on street workers; the whole remit of trafficked women and indoor sex workers was too large. We welcome wholeheartedly taking away the term “common prostitute” from the statute book. It has been our experience that that was the most unequal and unfair term. If a man were brought before the courts for soliciting, he would be charged under the Sexual Offences Act 2003 and would not be called a common prostitute. It was unfair and stigmatising, so we welcome the change.
Following Les Lawrence’s earlier comments about prevention, we would have liked a little more done towards prevention and we will continue to lobby for the removal of prostitution offences. If you really want people to move on and to change their lives, those sentences relating to prostitution only stigmatise them, and very often mean that people cannot move on with their lives. Broadly, we welcome the measures.
Les Lawrence: As I am sure you will recollect, in response to the consultation earlier in the year, the LGA requested that the concept of premises closure orders were included in this Bill. We fully support clause 103 in this instance because it is about working together, not just the local authorities but the police too. That brings about a much greater dialogue and it is a tool. We want to ensure that the guidance enables the concept of local discretion to be exercised, especially in the last resort.
We have to recognise that depending on the nature of the premises, other service requirements may come into play. If a particularly unhelpful family is living in a house, the question of homelessness comes into play, especially if there are children involved when we have statutory responsibilities. If it is an unlicensed premise, the costs may be associated with what are known as regulatory impact statements, but the cost of that undertaking is marginal, at just over a couple of thousand pounds. The general drive to include this proposal in the Bill is well supported. We can iron out any of the little wrinkles in the guidance as long as there is an appropriate dialogue between the Home Office and ourselves.
We would welcome that because what we have tried to do, as Councillor Lawrence and Councillor Lucas know, is to build on the success of the crack house closures and to replicate those arrangements or regulations in the premises closure orders. If you have particular concerns, please keep talking to us about them. We want the proposals to work, particularly the new one that they apply to any type of tenure, which is especially important.
Ann Lucas: Of course we do. Earlier we were discussing the costs of closing somewhere down. Anecdotally, I believe that a house in Glasgow was closed after 53 previous callouts involving the police and different agencies. We are talking about the last resort. Look at the cost of all the resources that had been used in that case; it is a no-brainer.
As you say, the ongoing cost of failing to deal with a particular problem is enormous.
Could we go back to the issue of prostitutes? Do you see the rehabilitative order, the requirement for somebody to attend three meetings, as an important step forward?
Ann Lucas: We broadly support it. You will know that we very clearly see the sex worker as the victim and we are glad that they will not be fined any more. We believe that there is crime and the criminals are the punters and the pimps.
There is, outside here, a big debate as to whether you are starting another vicious circle. However, I believe that this structure has to be available because otherwise when you hit the bottom where do you go? If there is nothing else you just go further down if that is at all possible. We found in our research that these girls and women live the most chaotic lives.
One view is that short-termism is never a good thing because it takes people such a long time to spiral into the lives that they lead and yearly targets are not going to work. It can take a long, long time to get somebody’s life put back together when it has taken years of abuse to fall apart.
I must bring this session to an end. May I, on behalf of the Committee, thank our two witnesses from the Local Government Association very much indeed for their interesting and informed evidence?
I am particularly interested because at one time—Councillor Lawrence will not be aware of this—I was a member of Warwickshire county council and I sat on the governing board, or whatever it was called, of what was then the Tennal approved school for boys in Harborne, in Birmingham. I think that there was some controversy there long after my time. I also served on the joint education committee of what was then the Lanchester polytechnic in Coventry, as a member of the education committee for Warwickshire county council. So I have some affinity with both Coventry and Birmingham.
We are very grateful to you both. Your evidence was extremely helpful and we are very grateful to you.
Once again, as I said to the previous witnesses, I do not think that I have to ask you to identify yourselves, because we have the information that Mr. Don Horrocks is the head of public affairs of the Evangelical Alliance and Dr. Louise Brown is the policy research consultant for the alliance. We have quite a number of people who wish to question you, but I will start by calling Mr. Philip Hollobone.
Don Horrocks: No. We have made that absolutely clear, and I think that we reflect the views of a lot of people and not just the religious sector. I know that there has been a lot of comment in the media and from across the board, just as there was with the Racial and Religious Hatred Act 2006. There was a wide spectrum, not just of religious people and religious groups, who were opposed to further law that was seeking to prevent incitement on the grounds of, effectively, speech. We have the same approach on this occasion. We are against extending the law. We did not want the Racial and Religious Hatred Bill—we opposed it at the time—and we oppose this further extension now.
Don Horrocks: The issue always comes back to the question of freedom of speech. We are not seeking specifically to defend Christians or, indeed, any religious group today. We believe that where the law will impact is on the basic fundamental civil liberty of freedom of speech for everybody, and that is where we are coming from. We think that this measure will have a negative impact, and that is why we are against it.
Stonewall and others who are in favour of this legislation have given us some very difficult evidence about lyrics, particularly in rap music, which has been very homophobic and, in their view, incites people to hate gay people. They would like to see legislation brought in to make that an offence. You may have had an opportunity to see some of the evidence that they gave us. Do you think that anything should be done about such violent and homophobic lyrics?
Don Horrocks: On the specific question of rap lyrics, I did hear the evidence. Our fundamental point is that we still believe that extending the law is unnecessary because what we have now is adequate, and is not being used. As far as rap is concerned, Evangelical Alliance member organisations have long campaigned against hate images and lyrics, so we know about that. We know that many groups have been campaigning against them, too, against record companies and so on. There is a law against video and film porn—in fact, this Bill is supposed to be tightening up in that area—so why not extend it to music lyrics? The problem with creating criminal law in this area is that you want to enforce a law against incitement to violence and murder, which is what those rap lyrics are doing. Incidentally, it is not only gay people who are targeted by rap music. For example, rap lyrics gratuitously attack women, race and religion, encourage early sexual behaviour and the taking of drugs and celebrate the carrying of guns and knives. How far do we want to go on this? It is not only gay people who are targeted.
The point that I want to make is that it was suggested that the current law on incitement is insufficient to deal with rap artists—I heard Beenie Man mentioned, whose lyrics incite people to murder homosexual people. However, there are two points to make. First, Ben Summerskill was not quite right to suggest that it is only a particular group, such as homosexuals, that needs to be identified. There is a case, el-Faisal 2004, where Mr. el-Faisal, who was an extremist Islamic preacher, was convicted in 2003 of incitement to murder under existing legislation—section 4 of the Offences against the Person Act 1861. What was he doing? In a number of speeches that were recorded and distributed, he was inciting or exhorting audiences to kill Americans, Jews and others indiscriminately.
I want to draw to the Committee’s attention to another point, which is something that we began to consider only today, so I accept that it needs further analysis and consideration. The Serious Crime Bill is going through Parliament at the moment, and it is interesting that, in July, Gordon Brown stated clearly that that Bill was being brought in to fill the gap and extend the law to cover where incitement legislation did not cover. I know that the Bill is awaiting its remaining stages in the Commons before it receives Royal Assent, but it repeals the common law offence of incitement and replaces it with a series of offences of encouraging or assisting an offence. In our view, from an early examination, it is intended to cover—or should cover—the lyrics that Stonewall is complaining about.
For example, that Bill was introduced following a Law Commission report that specifically intended it to fill the gaps in incitement law and to clarify the law on incitement because of current uncertainties. If we are reading it right, the Government intend to widen incitement law under the Bill. If that is right, they are extending the law to catch people who encourage crime, even if no specific offence is committed. It is reform law, not codification of existing law. If I am right, we already have a set of new provisions coming in. Admittedly, I cannot be certain today what the Bill will achieve, but in our view—I could go into a lot more detail about existing legislation—we feel that existing legislation or legislation that is provisional at this stage is sufficient to address the gap that Stonewall particularly wanted to fill.
We were given several specific examples by Mr. Summerskill in a previous session, and I want to highlight one that involved a prayer rally outside Parliament this January, where a gentleman was shouting
“Don’t allow homosexuals to pervert these children”.——[Official Report, Criminal Justice and Immigration Public Bill Committee, 16 October 2007; c. 77, Q172.]
Mr. Summerskill’s view was that that was almost certainly incitement to homophobic hatred. What is your response to that accusation?
Don Horrocks: I heard him say that, and I just wonder whether he took exception to the word “perversion”, which might mean one thing to one person but which is also a religious word and might mean something else to another person. I think our feeling is that his comments did not stand well with the rest of what he said. I know that he has indicated that he wants some form of legislation that refers to temperate language, whatever that might mean—I know that it is not a legal definition. To many people, that might suggest applying a very much lower threshold of toleration than we have, for example, in the Racial and Religious Hatred Act.
I received a request to put before the Committee a reaction to that particular comment by Ben. It came from black Church leaders, one of whom is a member of the Metropolitan police service’s all-faith forum for safer neighbourhoods. Referring to Ben Summerskill’s comment
“that he was ‘shocked that the Metropolitan Police gave some fringe protesters permission to demonstrate outside Parliament...carrying posters inciting hatred against gay people.’”,
the writer comments:
“I was involved in making the posters.”
Incidentally, may I say that I was present on that occasion as well? The writer continues:
“Whilst Mr. Summerskill typifies the protest as inciting homosexual hatred another gay journalist did not. Nicholas Chinardet, (who was there) wrote in Pink News: ‘People were singing and brandishing placards reading “Cry Freedom”, “Christians Awake”, or “Back the Bible”’. Some Stonewall supporters turned up and sought to engage some of the protesters in argument. Mr. Chinardet referred to the ‘mostly good-mannered debate’.
The BBC report of the protest shows other placards, including, ‘Freedom to Believe’, ‘Freedom of Conscience’ and “Freedom from Persecution”.
He then writes:
“I am at a loss to know which of these posters Mr. Summerskill believes was inciting hatred against gay people. Perhaps he objects to us quoting the Bible, singing hymns, or saying prayers.
Ours was a peaceful protest conducted in accordance with all the instructions of the Metropolitan Police. Those of us who were present”—
I was there, and I agree with this—
“were expressing our concerns regarding free speech and freedom of religion.”
Speaking of Mr. Summerskill and his supporters, the writer says that, if such expressions fall within the
“definition of the sort of thing that they want to see outlawed under an incitement to homophobic hatred offence”
it seems to us that
“They do not want to ban hatred. They want to ban dissent.”
“Freedom of speech, if it means anything at all, must include freedom to offend. Last year, the Black Churches vigorously campaigned about the proposed incitement to religious hatred law so that Ben Summerskill and others had the freedom to attack our religious beliefs.
We defended the rights of those who disagree with our Christian faith. How about a level playing field? Please reject the proposal for an incitement to homophobic hatred.”
I am sorry for the extended quote, but I think that it makes the point, and it comes from someone who actually organised the protest.
You made some references to the religious hatred legislation, on which many of us worked hard. I would be interested to hear your views about the outcome of that legislation after we had done our work in the Commons, and their lordships had done their work in the Lords. Do you feel that the outcome was satisfactory from your point of view?
Don Horrocks: We were opposed to it, and we still are. Given that it was going to proceed, however, the outcome was the best that could have been achieved. It is interesting that we campaigned against that Bill along with a lot of other groups that are not in the religious lobby. It was seen as some sort of victory for free speech. The fact that the law does not seem to have been used terribly much since, and the fact that it makes it absolutely clear to many people what they can and cannot say without fear of being prosecuted, means that it was probably the best outcome.
There are still reservations about it. The police have to action the law and make decisions, often at the point of speech, about whether something constitutes an offence, and there is still a feeling that it is too much to expect them to get it right. We have on record instances when the police have got it wrong and we have had to complain to chief constables. Police have been round to people’s houses and warned them; we have then contacted the chief constable, who has admitted that they were wrong, and they have had to go round and apologise. In the meantime, a chill factor has been brought into community relations. We are still worried that that is going on even now with that Act in place, but I suppose that I would have to say that it is the best that could have been achieved. We would still like there to be no Act at all.
That is interesting. I was going to come on to that point. One thing that many of us feared was not the prosecutions that would take place but exactly what you describe: the chill effect. What assessment have you made of the extent to which that has happened since the provisions of the 2006 Act in its final form were enacted?
Don Horrocks: Time will tell. It is still early days—it has only just come on to the statute book, on 1 October if I remember rightly. Perhaps the police are being more informed about these things. Certainly, not many incidents have been reported to us recently, but it is too early to tell from experience.
Don Horrocks: I can only make some observations on that. As far as I understand, the laws have just not been used at all. We have had no reports of their having been used. Of course, the argument was advanced during the passage of the Racial and Religious Hatred Bill that those laws should form a precedent, in the way that existing race hate laws were used. The fact that they have not been used was advanced as an argument for why the Bill was needed. It was rejected at the time because they were not seen as helpful precedents, because race and religion were very different, as are race and sexual orientation or sexuality—in the latter case, you are dealing with controversial topics. Also, we are talking about behaviour and ideas on which there are legitimate areas of disagreement.
My observation about Northern Ireland, why that has been the case and why the precedents are not necessarily compelling is that there is a different religious and cultural situation over there. Northern Ireland and the mainland are very different. The police over there are very, very sensitive and concerned about protecting freedom of speech, precisely because of community tensions. The feeling that I get from over there, certainly from what I have been told, is that if any of those laws were used, floodgates could open. There has therefore been a keenness not to use those laws.
In addition, it might be worth saying that the harassment law that was included in the sexual orientation regulations in Northern Ireland was struck down in the High Court by judicial review. It was struck down because of its rushed introduction and because of concerns over free speech and religious liberties. That harassment law had been declared by the Government to be compliant with the European convention on human rights, but the High Court disagreed. The Government had gone too far and rushed the legislation through without proper consideration.
The judicial review concluded, if I may summarise it, that the orthodox Christian position is that the practice of homosexuality is sinful and that that belief is protected by article 9. For that reason it was struck down. If that shows anything at all, it shows the mistake of rushing ahead with legislation without checking whether the balance is right.
May I return you to this core point? In Northern Ireland, the homophobic hate provisions are based on the race hatred legislation. I am not an expert on Northern Ireland, but I do not think that those provisions have in any way stopped fairly vigorous profession of faith among the evangelical community. I am making a genuine attempt to discover the extent to which the chilling effect, which I accept is a perfectly proper and real fear among many people, has had an effect in that Province. I am struggling to find out why the situation should be so very different in Northern Ireland compared to Scotland, England or Wales.
Don Horrocks: I share your struggle. All I am able to discover from that is that the sensitivities in Northern Ireland are different from over here. Incidentally, it occurs to me in passing that if the legislation in Northern Ireland is so effective, why has Stonewall not used it to ban rap lyrics there?
Don Horrocks: Rightfrom the outset—the Home Office at the time asked us to be involved with the whole process right from the beginning, and we were. It was very constructive for some considerable time because we tried to reach a constructive solution. There came a point when the Minister determined to go along a route that we felt was unacceptable. At that point, with great sadness, I said to the Minister that we would have to campaign against it. There was a lot of constructive working and both sides were sad that we could not reach a constructive way forward.
Dealing with the present situation, what would you say the present effect of legislation is on Christians practising and Christians talking about their views on homosexuality?
Don Horrocks: As I indicated before, we feel that there is no need for this legislation. We feel that there is sufficient legislation. The current law is sufficient. If my comments earlier about legislation in the pipeline are right, there is even more rationale for that view.
Were this legislation to pass, we feel that there could be an impact similar to the impact that we warned about during the passage of the Racial and Religious Hatred Bill, which Parliament agreed with. At the end of the day, there would be a severe impact on freedom of speech: on legitimate disagreement, legitimate argument, even on the legitimate causing of offence and the legitimate expression of hatred. Let us admit that there is a legitimate expression of hatred. The Bible encourages Christians to hate sin. So if one accepts that there is a legitimate expression of hatred, the fear is that if the Bill is drawn in a way that has such a low threshold as Ben Summerskill has suggested, and as seemed to be proved by his comments on the protest in Parliament square, we would be very concerned. We feel that it would have a chilling impact.
Clearly Mr. Summerskill is concerned that you will not only hate the sin but will hate the sinner. I will not put words into his mouth, nor do I represent him in any way, but I want to try to get from you is an understanding about what they appear to fear, which is that groups such as those that you represent, irrespective of your motives and your genuine Christian beliefs, could lead to people like him and individuals and groups living in fear of the consequences of hatred and disapproval.
Don Horrocks: I understand that. I could equally say that the consequences of this legislation could cause Christians and other people to live in fear. I was interested to hear the Police Federation representative yesterday saying that the police are in fear of not being seen to act. If a climate of fear is being introduced, on which side is it actually coming? If you want me to be theological in answering your question, yes, Christians do hate the sin rather than the sinner. Let me ask, why do we always talk about Christians in this debate? I am a Christian, but we are talking about religion and belief, not just about Christianity. Most of the major religions take the same approach here.
We are not talking about inciting people to hatred. I have never come across incitement to violence and murder, which is where we believe the law should really be reaching. Even Peter Tatchell made it clear that he did not like this legislation and that the existing legislation should be strengthened—or actually used, because it is there—to tackle incitement to violence and murder, whereas expressing views, however offensive they may be, should not be the subject of legislation.
I heard Ben Summerskill say that some people would take exception to the statement that certain people with a certain sexuality will burn in hell. That was seen to be offensive and certainly intemperate. I am not commenting on whether that is intemperate or not, but it is in the Bible. Are we going to ban the Bible for intemperate language? There is some pretty intemperate stuff in there. My fear is about where we are going to draw the line on this.
Dr. Louise Brown: Two main points need to be made. If you go through the existing law you will find that there are a lot of statutes that already deal with this matter. For example section 146 of the Criminal Justice Act 2003 includes tougher sentences for offences motivated by hatred of the victim’s sexual orientation. As we know, under the Public Order Act 1986 it is an offence to use threatening, abusive or insulting words or behaviour in a way that is likely to cause harassment, alarm or distress. This has been used to arrest people for making homophobic comments. There is also the Protection from Harassment Act 1997, which makes it a civil or criminal offence to harass somebody. There are offences for actual bodily harm and assault under the Offences Against the Person Act 1861, and the offence of common assault under section 39 of the Criminal Justice Act 1988.
In addition, a comment was made on 11 October 2007 in a press release from the Crown Prosecution Service that
“homophobic crime is being tackled head-on, and with success,”
and that is happening within the existing law. The other point is about current levels of crime.
Dr. Louise Brown: Current levels of crime in this area do not justify changing the law. The Metropolitan police performance briefing shows that homophobic hate crime is down by 8.5 per cent. and talks about figures of 1,294 incidents in 2005-06 and 1,184 in 2006-07. That compares to racist hate crime, which is down by 11.9 per cent., from 11,322 incidents in 2005-06 to 9,976 in 2006-07.
A comment was made in response to Question 165 referring to the Crown Prosecution Service saying that there has been a 167 per cent. rise in the number of convictions, but according to the figures for the period between April 2006 and March 2007, the Crown Prosecution Service prosecuted 822 cases identified as having a homophobic element, compared with 600 cases in 2005-06. Those are the actual figures. They are divided into 42 Crown prosecution areas, and these are the figures for the equivalent in the 43 police forces for the whole of England and Wales. They illustrate the low level in the whole of England and Wales of crimes with a homophobic element.
Then we must look at the Home Office figures, which say that nationally, the police recorded 50,000 racially or religiously motivated hate crimes last year. The British crime survey, which is based on interviews with a wide sample of people and picks up crimes that are not reported to police, indicated that there were 260,000 such events last year.
Then we come to what the Metropolitan police say. They reported 11,799 incidents of racist and religious hate crime and 1,359 incidents of homophobic hate crime in the 12 months to January 2006. However, the police estimate that most racist and religious hate crime, and as much as 90 per cent. of homophobic crime, goes unreported.
I would say that if you look at the figures from sources such as the Home Office and the Crown Prosecution Service, they illustrate that the law appears to be justified in the current areas of racially or religiously motivated hate crime, but not to crime motivated by sexual orientation, which the new law proposes to address. Even if 90 per cent. is unreported, we are talking about 800 cases in the whole of England and Wales. I appreciate that in those figures there are differences because “incidents” now include both crimes and no crimes.
In Committee, it is likely that an amendment will be tabled, but the evidence about the need for the provision might not be considered. Let us go beyond the issue and presume for a moment that there may be a need for an offence. If one makes that presumption, taking into account the evidence provided about the number of incidents that suggest a lack of clarity in how the police deal with such incidents—Ben Summerskill acknowledged in his evidence that the police can be heavy-handed—what is needed to clarify the issue of freedom of speech and the elements of an offence so that it is clear what is and is not an offence?
Don Horro ck s: It is extremely difficult, which is why, I imagine, that the Committee is deliberating. Can the law really tackle an area that deals with speech and judgments on it? We thought that new section 29J inserted by the schedule of the Racial and Religious Hatred Act 2006 attempted to do that. In other words, if a decision is made that this legislation must pass—in this case, we do not accept that it should—we would want an equivalent to that new section 29J in order to make it absolutely clear what people can and cannot say.
As I understand it, if no one was sure, and someone made a certain comment, the police would tell them that they were under investigation or suspicion, and the case would go to the Crown Prosecution Service, after which it would pass to the Attorney-General. I think that Mr. Summerskill was telling us that, after that process, which could last 18 months, a jury would decide. I feel that the impact of legislation such as that, which introduces confusion, rather than clarity, would be deleterious to community relations and the public.